The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on April 28, 2003, at the request of legal counsel, acting on behalf of the claimant.

Issue

Whether or not a Medical Review Panel should be convened.

Decision

That a Medical Review Panel should not be convened.

Decision: Unanimous

Background

In 1992, the claimant injured her upper back, right arm, right shoulder and neck when lifting a heavy roll of fabric at work. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant up to June 29, 1994 when it was determined that she had recovered from the effects of her compensable injuries and that the diagnosis of fibromyalgia was not a compensable condition.

On November 25, 1994, the case was considered by Review Office at the request of a worker advisor who disagreed with the above decision. The Review Office determined that a Medical Review Panel (MRP) would be convened in order to offer an opinion as to the claimant's diagnosis, its relationship to the accident and the extent to which the claimant was disabled as a result of her compensable injuries. On March 3, 1995, an MRP examination took place.

In a decision dated April 7, 1995, Review Office made note of the MRP's findings and opinion and determined that the claimant was not entitled to benefits beyond June 29, 1994. Review Office concluded that the claimant had recovered from the effects of her compensable injuries and any conditions now preventing her return to work were not as a result of the soft tissue injuries sustained in her accident of February 11, 1992.

In March 1996, the worker advisor asked Review Office to reconsider the case based on a report prepared by a psychologist who interviewed the claimant on January 24, 1996. Based on a review of the file evidence which included video surveillance of the claimant's activities and the opinion expressed by a WCB pain management medical advisor, Review Office concluded that the claimant did not have chronic pain syndrome and that any other conditions being exhibited by her such as mood disturbance or affective disorder, could not reasonably be attributed to the effects of the accident.

On January 21, 1999, a solicitor acting on behalf of the claimant provided Review Office with an independent physiatrist's report dated December 17, 1998. Based on the conclusions reached by the independent physiatrist concerning the claimant's medical status, the solicitor advanced argument that the claimant was entitled to benefits from June 29, 1994 onward. Following a review of the physiatrist's report together with the MRP's findings of March 3, 1995, Review Office upheld its previous decision that the claimant did not suffer a loss of earning capacity beyond June 29, 1994 due to the accident.

In a May 13, 1999 letter to Review Office, the solicitor suggested that there was "clear conflict between the recently provided medical opinion of Dr. [the physiatrist] and the earlier opinions of the medical panel of the Workers Compensation Board" and "…that a medical review panel be called to examine the medical evidence in light of Dr. [the physiatrist's] findings and conclusion."

In a response to the solicitor dated June 28, 1999, Review Office said it was evident that the law firm had not provided the physiatrist with pertinent information from the claimant's file. Furthermore, the MRP convened on March 3, 1995 was an independent body and provided unbiased conclusions. Review Office felt there was no difference of medical opinion as required by legislation to convene an MRP.

On October 4, 1999, the solicitor presented further argument to Review Office with respect to the convening of another MRP. In a decision dated November 19, 1999, Review Office concluded that the requirements of section 67(4) of The Workers Compensation Act (the Act) had not been met and that there was no basis to convene a second MRP.

In a letter to Review Office dated March 6, 2002, the solicitor presented argument that the requirements of section 67(4) of the Act had been met. Reference was also made to the report by the physiatrist dated December 17, 1998 and from the psychologist who saw the claimant in January 1996. The solicitor indicated that these reports were received after the March 3, 1995 MRP had taken place and were therefore never considered by the MRP.

On May 31, 2002, Review Office determined that there was no basis to convene an MRP. Review Office pointed out the following factors in reaching its decision:

• the report by the psychologist must be dismissed as constituting a difference of medical opinion. The psychologist, by definition, was not a medical doctor;
  
  
• there were several pertinent documents on file which were not provided by the law firm to the independent physiatrist. The physiatrist clearly stated that his opinion was based on the assumption that the material provided to him was current and complete, which it was not. The physiatrist not only found neck and upper back difficulties but also lower back difficulties that he somehow attributed to this accident when in fact the claimant had not hurt this particular part of her anatomy.

Based on the above, Review Office concluded that a second MRP was not warranted as the requirements of sections 67(1) and 67(4) of the Act had not been met. On December 20, 2002, the solicitor appealed Review Office's decision and a non-oral file review was conducted on April 28, 2003.

Reasons

As the background notes indicate, this is an appeal of a Review Office decision dismissing a request by the claimant's solicitor to convene a MRP pursuant to section 67(4) of the Act. 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 solicitor contends that there is a clear difference of medical opinion between the claimant's physician and a WCB 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.

Review Office refused the request and based its decision, in part, on the following reasoning:
     "In requesting this second Panel, the solicitor has relied upon two separate reports. One of these reports has been submitted by a psychologist who is by definition [section 1(1) of the Act] not a medical doctor ['physician' means a duly qualified medical practitioner who is lawfully and regularly engaged in the practice of his profession in Manitoba] and therefore this particular report must be dismissed as constituting a difference of medical opinion. The second report was submitted by a physiatrist who examined this worker on behalf of the solicitor who was acting for the worker in 1997 and 1998. Review Office find it particularly compelling that the law firm did not supply this doctor with all of the background information that is available on this worker's file. Specifically the Medical Review Panel report of March 3, 1995 was neither supplied nor referenced."

We are entirely in agreement with Review Office's decision that the claimant's physician's opinion is not based on the same set of facts that were before the WCB's medical advisor. In particular, the claimant's physician was not furnished with a copy of the MRP's examination findings and opinion dated March 3^rd, 1995. The claimant's physician clearly has predicated his opinion solely in accord with the documents provided by counsel. We paid particular attention to the qualification placed by this physician at the end of his December 17^th, 1998 report, in which he states as follows:
     "The above analysis is based upon the history and physical examination, investigations done, response to the treatments and on review of the medical files submitted by Mr. [name of lawyer]. It is assumed that the materials provided is (sic) current and if more information becomes available at a later date an additional report may be requested. Such information may or may not change the opinions rendered in this evaluation."

Inasmuch as the treating physician's opinion is not based on a full statement of facts, we find that the requirements of section 67(4) of the Act have not been satisfied. Therefore, there is no entitlement to the convening of an MRP. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of June, 2003