Decision #84/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on June 18, 2003, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the worker is entitled to benefits beyond March 15, 1995; and

Whether or not a Medical Review Panel should be convened under subsection 67(4) of The Workers Compensation Act.

Decision

That the worker is not entitled to benefits beyond March 15, 1995; and

That a Medical Review Panel should not be convened under subsection 67(4) of The Workers Compensation Act.

Decision: Unanimous

Background

The claimant injured his back region on February 12, 1993 after unloading large rolls of fabric onto a trailer. Initial medical reports revealed that the claimant was diagnosed with flank pain and musculoskeletal problems. His attending physician diagnosed a prolapsed disc. The Workers Compensation Board (WCB) accepted the claim and benefits were paid accordingly.

During the course of the claim, the claimant was treated by an orthopaedic specialist and by a physiatrist (physical medicine and rehabilitation specialist). He was also assessed on a number of occasions at the WCB's healthcare branch and he underwent a variety of laboratory investigations, which included CT scans, MRI examinations, etc.

On March 9, 1995, the WCB determined that the claimant's disability could not be attributed to his compensable injury and that payment of disability benefits would end on March 15, 1995. This conclusion was reached following consultation with a WCB medical advisor, who felt that a specific structural lesion attributable to the claimant's compensable injury was not the basis behind his current situation.

In a submission to Review Office dated July 13, 1995, the claimant's union representative referred to the following medical opinions on file, which he felt supported the position that the claimant's back problems were a direct result of his 1993 compensable injury:

May 18, 1993 - Dr. (a WCB medical advisor) states "The claimant's condition appeared to be avascular and possibly mechanical in nature. I felt an early mobilization and strengthening program were required."

June 11, 1993 - Dr. (a WCB medical advisor) states "In view of the claimant's mechanism of injury, symptoms and my objective findings, specifically claimant's decreased and antalgic lumbar mobility and the atrophy of the left calf muscles, it is my opinion that the CT scan results are of significance and related to his compensable injury. It is probable that there is more pressure on his left L5 root than on the right.

The prognosis is for a prolonged recovery."

June 17, 1993 - Dr. (an orthopaedic specialist) states that Mr. (the claimant) "had to discontinue physiotherapy in April because of an increasing amount of discomfort and it was during this period that he developed more signs in the L5 root."

August 18, 1993 - Dr. (doctor's name) states, "He appears to show some signs of dural irritation that would fit with a CT diagnosis of a central disc herniation."

March 21, 1994 - Dr. (physiatrist) wrote the Board a letter, stating that "my impression is that this patient's back is certainly not improved since I saw him back in August, 1993 and in fact it may be somewhat worse."

"At present, I am not arranging any further treatment but I think that he needs to start from square one and have hands on instruction in a dynamic stabilization program teaching him to maintain neutral spine and how to effectively do basic exercises on his own prior to discharge. He may benefit from some psychological counseling in stress and pain management and some work hardening once his conditioning has improved. I currently do not think that any further investigations are necessary to assess his neurological status either in terms of imaging or in terms of electrodiagnostic testing."

July 14, 1994 - Dr. (WCB medical advisor) again confirms the claimant's injury is work related, "I advised Mr. (the claimant) the type of condition he was suffering from was not easily 'curable'. I advised him that treatment of just pain per se was likely to be ineffective and that treatment focusing on function would be of greater importance over the long term. On the other hand, I assured Mr. (the claimant) that this was not to imply efforts would not be made to reduce his pain."

September 6, 1994 - Dr. (a neurologist), after a thorough examination states, "The features are most suggestive of chronical (sic) mechanical back pain."

On November 3, 1995, the Review Office upheld the decision that the claimant was not entitled to payment of benefits beyond March 15, 1995.
Review Office pointed out that a specific diagnosis had never been identified as a cause for the claimant's disability, which could be directly related to the injuries he sustained on February 12, 1993. Review Office reached its decision based on the following reports:
  • A physiatrist's report of February 6, 1995, wherein he indicated "There are clearly other factors that appear to be operating in this claimant's failure to improve. His passive attitude towards his own problem is certainly playing a role in his participating in his rehabilitation program. Furthermore, his examination consistently shows several inorganic Waddel signs, indicating there are other features that are affecting his pain presentation."

  • The results of an MRI study that was performed on October 13, 1994; an electrodiagnostic study dated December 20, 1994; x-ray results of the chest and abdominal spine

  • The opinion expressed by a WCB medical who had examined the claimant on numerous occasions and who was unable to provide a definitive structural diagnosis for the claimant's condition (the last exam being July 14, 1994). Review Office indicated that this same conclusion was reached by consultants in neurology and orthopedics who concurred that the claimant's current condition was not attributable to the compensable injury that he had sustained some two years previous.
On June 18, 2002, a worker advisor submitted a report from the claimant's treating physician dated June 7, 2002, which he believed confirmed that the claimant had not recovered from the effects of his 1993 injury. The worker advisor was of the view that a difference of medical opinion now existed and that a Medical Review Panel (MRP) should be convened. The worker advisor also noted that the claimant had not been able to return to his employment since his injury and therefore he was entitled to time loss benefits since March 15, 1995, medical aid expenses and a permanent impairment award.

In a response to the worker advisor dated August 9, 2002, the manager of sector services determined that "…the case presented does not satisfy the requirements of section 67(4) of the Workers Compensation Act since a difference of opinion as defined by section 67(1) of the Act has not been established." He stated that although the attending physician did comment that the claimant continued to suffer from the effects of his workplace injury, he did not provide any supporting facts or reasons to support this point of view. The request to convene an MRP was therefore denied.

In a decision dated November 8, 2002, Review Office noted there was a complete absence of medical documentation between March 1995 and June 2002. Based on the available evidence, Review Office rejected the appeal of the initial November 3, 1995 decision as well as the request for an MRP. Review Office felt that the medical evidence fell short of satisfying the requirements of Section 67(1) of the Act which stated that "opinion means a full statement of the facts and reasons supporting a medical conclusion."

On April 15, 2003, the worker advisor submitted a report from a physiatrist dated March 18, 2003. The physiatrist believed that the claimant had not recovered from the effects of his 1993 injury and that his medical condition was work related and as such warranted the convening of an MRP. In a response dated April 28, 2003, Review Office determined that the requirements for convening an MRP had not been met based on the fact that the physiatrist specifically stated that he was unable to comment regarding the claimant's ability to work at or beyond March 15, 1995. On May 2, 2003, the worker advisor appealed the decision and a non-oral file review was held. In early June 2003, the worker advisor submitted information to the Appeal Commission that included a letter from an occupational health physician dated June 2, 1995.

Reasons

As the background notes indicate, the claimant was diagnosed by a consulting physical medicine and rehabilitation specialist in April 2002 as having myofascial pain syndrome with trigger points. In a March 18th, 2003 letter this specialist opined: "On a temporal basis, this [i.e. myofascial pain syndrome] began after the February 12, 1993 work related injury and has persisted until the present time."

We note, however, that up until 1995 at the time of termination of benefits the claimant had been under the care of a treating physical medicine and rehabilitation specialist and that this physician never recorded or provided a diagnosis of myofascial pain syndrome or symptoms to that effect.

In addition, there is an absence of medical information from 1995 to 2002. Outside of this recent diagnosis of myofascial pain syndrome, the medical evidence on file does not establish a causal relationship between the claimant's ongoing difficulties and his compensable injury. In this regard, we attached considerable weight to the following WCB medical advisor's comments contained in a memorandum to file dated February 23rd, 1995.

"An MRI is a very sensitive test for demonstrating disc/nerve root pathology. The recent MRI investigation of October 18, 1994 did not reveal evidence that either the L5 or S1 roots were affected. Furthermore, the MRI notes the spinal canal as being well maintained. With regard to the previous descriptions of some degree of atrophy of the left calf and quadricep musculature, it should be noted that the left calf muscles are primarily innervated by the S1 nerve root. The quadricep musculature is innervated by the L3 and L4 nerve roots. On the recent MRI, there is no evidence of S1 or L3 and/or L4 nerve root compromise. It would appear that a specific structural lesion attributable to a compensable injury is not the basis behind Mr. [the claimant's] current condition."

In arriving at our decision, we also took into account certain remarks made by the initial treating physical medicine and rehabilitation specialist, which were summarized in his letter to the WCB dated February 6th, 1995.

"Nevertheless, regardless of any findings of radiculopathy seen on electrodiagnostic studies, there are clearly other factors that appear to be operating in this patient's failure to improve. His passive attitude towards his own problems certainly playing a role in his participating in his rehabilitation program. Furthermore, his examination consistently shows several inorganic "Waddell" signs, indicating that there are other features that are affecting his pain presentation. I think his clinical assessment over the past two years has not changed and that no further relevant diagnostic information can be gleaned from further investigation."

After having considered all of the evidence, we find that the claimant had, on a balance of probabilities, recovered from the effects of his compensable injury by the time that his benefits were terminated by the WCB. We further find that there is no causal relationship between the claimant's ongoing difficulties and the compensable injury.

Based on the weight of evidence, the claimant is not entitled to benefits beyond March 15th, 1995.

As to the second issue brought forward by the claimant, we find that there is no difference of opinion with respect to a medical matter between a medical officer of the WCB and a physician selected by the claimant. The latest medical evidence provided by the claimant's current treating physical medicine and rehabilitation specialist deals with myofascial pain syndrome and we note that there is absolutely no commentary on this subject by a WCB medical advisor.
Section 67(4) of the Workers Compensation Act (the Act) 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."
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 a medical review panel. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. 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 July, 2003

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