Decision #139/02 - Type: Workers Compensation
Preamble
A non-oral file review was held on October 10, 2002, at the request of a worker advisor, acting on behalf of the claimant.Issue
Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of The Workers Compensation Act.Decision
That a Medical Review Panel should be convened pursuant to subsection 67(4) of The Workers Compensation Act.Decision: Unanimous
Background
While employed as a shop foreman/cabinetmaker on February 4, 2000, the claimant experienced lower back pain while lifting and cutting 4' x 8' sheets. On February 8, 2000, the claimant attended a physician for treatment and was diagnosed with mechanical back pain. The treatment plan included heat, Celebrex and Tylenol #3. The claimant experienced no time loss from work as a result of the injury.On February 18, 2000, the attending physician noted that the claimant's lower back pain persisted. X-rays were ordered along with physiotherapy treatments. The physician suggested that the claimant perform modified duties and avoid heavy lifting of no more than 40 pounds.
X-rays of the lumbosacral spine dated February 16, 2000, revealed degenerative changes together with considerable narrowing of the intervertebral disc space at L4-5 level. No other abnormalities were seen.
Repeat lumbosacral spine x-rays were performed on July 11, 2000. The L4-5 disc space was slightly narrowed, consistent with disc degeneration. Vertebral heights were well preserved. Minor degenerative spurring was present anteriorly at several levels and apart from degenerative changes in the lower apophyseal joints, no further abnormalities were identified.
On September 13, 2000, the claimant attended a chiropractor for treatment. The diagnosis rendered was chronic lumbar myofascitis with degenerative osseous changes.
The case was reviewed by a WCB medical advisor on October 2, 2000 at the request of primary adjudication. The concluded diagnosis in relation to the compensable injury was mechanical low back pain complicated by pre-existing degenerative changes. The medical advisor felt there was a direct cause/effect relationship between the work injury and the current diagnosis/condition.
In January 2001, the claimant contacted the WCB indicating that he had been off work since January 18, 2001 due to back pain.
Following consultation with a WCB medical advisor on February 14, 2001, primary adjudication wrote to the claimant on February 19, 2001. Primary adjudication indicated that the medical advisor was of the opinion that given the original diagnosis and medical history, it was unlikely that all of the claimant's current symptoms could be attributed to the February 4, 2000 accident. It was felt that his continuing to work at a physically demanding job may be contributing to his current low back pain. The medical advisor recommended a period of rest, medication and further treatment. Based on this decision, the claimant was paid wage loss benefits from January 19, 2001 to March 9, 2001, when he was deemed to have recovered from the effects of his workplace accident.
Subsequent to the above decision, additional reports were received from the following parties:
- the treating physician dated February 5, 2001 and February 19, 2001;
- a report from the treating chiropractor dated March 1, 2001;
- a report from a second treating physician dated June 24, 2001; and
- an ACF (Ambulatory Care Facility) Record dated June 22, 2001.
A further report was received from the second treating physician dated September 1, 2001. After reviewing this report, primary adjudication wrote to the claimant on November 23, 2001 stating that no change would be made to the previous decisions dated February 19 and July 25, 2001. Primary adjudication confirmed its earlier decision that the claimant's original injury was considered to be an aggravation of a pre-existing condition and that the period of aggravation had since resolved.
In a letter to Review Office dated March 27, 2002, a worker advisor contended that the reports by the treating physicians dated February 5, 2001, March 1, 2001 and September 1, 2001, did not support the same conclusion that had been expressed by the WCB's medical advisor, i.e. that the claimant's back symptomatology was all due to a pre-existing degenerative back condition. The worker advisor requested that the claimant be granted retroactive wage loss benefits and payment for all required medical treatment along with vocational rehabilitation assistance.
On April 26, 2002, Review Office determined that the claimant was not entitled to wage loss benefits and services beyond March 9, 2001. On the basis of all file information, Review Office believed that the claimant had a long history of low back complaints, most likely associated with the noted degenerative changes in his lumbosacral spine. Review Office found no correlation between the claimant's ongoing inability to work and the accident of February 4, 2000.
In a submission dated May 22, 2002, the worker advisor advanced the argument that a Medical Review Panel (MRP) should be convened in accordance with Section 67(4) of The Workers Compensation Act (the Act) to resolve the difference of medical opinions between the WCB's doctor and the claimant's treating physicians. On June 6, 2002, primary adjudication denied the request for an MRP stating that the requirements of Section 67(4) of the Act had not been met. On June 17, 2002, the worker advisor appealed this decision to Review Office.
In a letter dated August 2, 2002, Review Office denied the worker advisor's request for an MRP stating the following:
- the statement made by the attending physician in his report of February 4, 2001 that the claimant had no back problems prior to February 4, 2000 could not be supported given the evidence on file. The employer attested to the fact that the claimant had ongoing back problems for as long as he could remember. A family friend confirmed that the claimant had attended a doctor over the years for back pain which he related to the heavy work that he did as a shop foreman/cabinet maker.
- reports from the claimant's chiropractor dated March 1, 2001 could not be considered as a basis to convene an MRP as reports from chiropractors were not considered to compromise a difference of medical opinion as required by Section 67(4).
- in the September 1, 2001 report, the treating physician noted that when he had last seen the claimant, the claimant was performing his regular duties as a shop foreman/cabinet maker. Review Office found that the physician's comments were interpreted as suggesting restrictions on a preventative basis, rather than the claimant's inability to perform his regular work.
Following the hearing and discussion of the case, the Appeal Panel requested additional information be obtained from the claimant's treating physician. Information from the physician was later received and was forwarded to the interested parties for comment. On November 15, 2002, the Panel met further to discuss the case and rendered its final decision.
Reasons
As the background notes indicate, the claimant has requested pursuant to section 67(4) of the Act that a MRP be convened. This section states as follows:
“Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.”
The claimant’s worker advisor contends that there is a clear difference of medical opinion between the claimant’s physician and the WCB’s medical advisors and thus the requirements of the above section have been satisfied, which would entitle her to request the convening of an MRP.
A WCB medical advisor was asked by a case manager whether there was, “Any change to decision that claimant has a resolved aggravation of pre-X [pre-existing condition]? He responded by stating: “No evidence to support this. This man’s problems are related to degenerative changes L/S [lumbosacral] spine – all pre-X and unrelated to CI [compensable injury].” It should be noted that this physician did not clinically examine the claimant.
In a letter to the attending physician dated September 1st, 2001, the treating physiatrist recorded the following comments based on his examination of the claimant.
“Mr. [the claimant] has spondylosis of lumbosacral spines with facette joint arthritis which is pre-existing, but the work related injury of February, 2000 caused exacerbation of his pre-existing spondylosis and caused further mechanical spinal pain. He has not made complete recovery from his injuries and unfortunately if he continues to do heavy work, he will most likely reinjure his back.”
In our view, there is a difference of opinion with respect to a medical matter that affects the worker’s entitlement to compensation benefits and as such the claimant is entitled according to section 67(4) of the Act to have his file referred to a medical review panel for its opinion in respect of this matter. The claimant’s appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of November, 2002