Decision #150/02 - Type: Workers Compensation
Preamble
A non-oral file review was held on November 12, 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 under subsection 67(4) of The Workers Compensation Act.Decision
That a Medical Review Panel should not be convened under subsection 67(4) of The Workers Compensation Act.Decision: Unanimous
Background
On September 16, 1998, the claimant sustained a lower back injury when he tripped and fell while removing a truss from an assembly table. Previous file records revealed that the claimant had a history of prior back problems starting in 1990 and that he has a pre-existing condition.
In March 2001, the claimant was informed by primary adjudication that his wage loss benefits and related medical costs would end effective May 25, 2001, as it was established that he had recovered from the effects of his compensable accident. This decision was appealed to Review Office on April 23, 2001 by a worker advisor. The worker advisor quoted the following comments that were expressed by the claimant’s treating physician:
- “My opinion is that his present functional limitations which are outlined on the report your (sic) included from the Wellness Institute, is a direct result from the accident at his workplace.
- …Mr. [the claimant’s] situation would be best described as an ‘enhancement’, because the injury in September 1998 adversely and most probably permanently affected his pre-existing condition.”
On October 5, 2001, Review Office confirmed that the claimant was not entitled to wage loss benefits beyond May 25, 2001. Review Office ultimately determined that the compensable injuries sustained by the worker were not contributing, in any material way to the claimant’s present loss of earning capacity. Review Office referred to various reports on file which included CT and myelogram results as well as the following opinion that was expressed by an orthopaedic consultant to Review Office on September 27, 2001:
- that the September 16, 1998 compensable injury produced only an aggravation of the underlying pre-existing degenerative problems in the worker’s lumbosacral spine, with no evidence of any associated radiculopathy of any significance; and that the worker’s ongoing back symptoms were attributable to pre-existing degenerative disc disease at L4-5 and L5-S1.
In a further submission dated November 26, 2001, the worker advisor requested that a Medical Review Panel (MRP) be convened in accordance with Section 67(4) of The Workers Compensation Act (the Act). The worker advisor contended that a difference of medical opinion existed between the orthopaedic consultant to Review Office (memo dated September 26, 2001) and the claimant’s treating practitioner (report of April 11, 2001).
On January 3, 2002, primary adjudication determined that the treating practitioner did not provide a full statement of the facts in support of his medical opinion and that an MRP could not be convened. On January 10, 2002, the worker advisor appealed the decision to Review Office.
On March 1, 2002, Review Office confirmed that an MRP would not be convened as the elements of Section 67(4) of the Act had not been met. Review Office indicated that the issue in this case boiled down to whether or not the claimant had recovered from the effects of his September 1998 accident and whether or not his ongoing back difficulties were related to pre-existing problems that existed prior to the accident. Review Office noted that the attending physician could not come to any conclusion one way or the other. The worker had told him based on his own subjective complaints that he functioned normally before the workplace accident and had been completely disabled since. Review Office did not find that the treating physician’s ‘opinion’ supported a medical conclusion.
In another submission to Review Office dated April 11, 2002, the worker advisor asked that Review Office reconsider its position on the issue of convening an MRP. In a response to the worker advisor dated April 23, 2002, Review Office confirmed that the requirements for the convening of an MRP had not been met.
On July 25, 2002, the worker advisor wrote to Review Office and submitted a report from an occupational health physician dated June 20, 2002 which she believed supported reinstatement of full compensation benefits to the claimant and/or the convening of an MRP.
On August 9, 2002, Review Office confirmed that the claimant was not entitled to payment of wage loss benefits beyond May 25, 2001 and that an MRP would not be convened. With respect to the MRP issue, Review Office stated, in part, the following, “The physician has stated a comparison of pre and post accident CT scans has shown no significant radiographic evidence of advancement of the pre-existing condition. Therefore Review Office do not believe that the definition of enhancement has been met as we do not feel that subjective complaints, particularly in the presence of degenerative disc disease, would constitute an enhancement of this pre-existing condition. Therefore in our view the requirements of Section 67(4) have not been met and a Medical Review Panel will not be convened.” On September 6, 2002, the worker advisor appealed Review Office’s decision regarding an MRP and a non-oral file review was scheduled.
Reasons
As the background notes indicate, the claimant has requested pursuant to section 67(4) of the Act that a Medical Review Panel (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.”
“Opinion” as defined in the Act means a full statement of the facts and reasons supporting a medical conclusion. The claimant’s worker advisor contends that there is a clear difference of medical opinion between the claimant’s physicians and the WCB’s medical advisor and thus the requirements of the above section have been satisfied, which would then entitle the claimant to request the convening of an MRP.
There is no dispute as to the working diagnosis of the claimant’s condition as being a degenerative disc disease, which was pre-existing. All of the physicians involved in this case agree that the claimant suffers from degenerative disc disease. In this regard, we refer to a letter from a consulting physician to the worker advisor dated June 20th, 2002, in which he states as follows: “By my assessment, I would agree with the general opinion that the diagnosis is that of degenerative disc disease that restricts Mr. [the claimant] in range of motion and is aggravated by lifting, prolonged standing and walking in particular.”
A WCB orthopaedic consultant was asked to provide his opinion as to the most probable diagnosis of the injury sustained by the claimant at the time of the compensable incident. In a memorandum dated September 27th, 2001, he responded by stating:
“Aggravation of pre-existing problems probably at L4-L5 as symptoms have been primarily one of back pain with no associated radiculopathy of any significance. It is noted that a C.T. Nov 22/97, C.T. Jan 27/99 & C.T. myelogram of May 31/99 all report similar findings with no appreciable change. Back symptoms are attributable to D.D. [degenerative disc] disease at 2 levels with L4-L5 being the primary level of problems.”
In contrast to the foregoing opinion, the previously referred to consulting physician further went on to state the following in his June 20th letter: “While there is no significant radiographic evidence of advancement between 1997 and 1999 CT-Scans, there was definite clinical enhancement with significant loss of functional ability since his September 1998 injury.”
WCB policy 44.10.20.10 defines aggravation and enhancement as each relates to a pre-existing condition. An aggravation is “the temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.” An enhancement is “where a compensable injury permanently and adversely affects pre-existing condition or makes necessary surgery on a pre-existing condition.”
After thoroughly reviewing all of the evidence, we do not share the same view as that expressed by the worker advisor. There is no dispute that the claimant’s condition has been diagnosed as degenerative disc disease. The radiographic evidence categorically confirms that this condition pre-dated the claimant’s compensable accident and that this condition was substantially unchanged following the accident. As such, there is no sound basis (or statement of fact) upon which the attending physician can conclude that an enhancement of a pre-existing condition has occurred. The preponderance of evidence does not support a conclusion that the claimant’s degenerative disc disease had been enhanced by the compensable incident of September 16th, 1998.
We find that the requirements of section 67(4) of the Act have not been satisfied. In our view, there is no difference of opinion with respect to a medical matter affecting the worker’s entitlement to compensation benefits. Accordingly, the claimant is not entitled to have his file referred to a MRP. The claimant’s appeal is hereby dismissed.
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 12th day of December, 2002