The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on August 13, 2003, 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 not be convened pursuant to subsection 67(4) of The Workers Compensation Act.

Decision: Unanimous

Background

In May of 1998, the claimant filed an application for compensation benefits with respect to difficulties he was experiencing with both of his wrists, hands and arms which he related to his employment activities as a welder. On July 7, 1998, the claimant advised his attending physician that he had experienced discomfort in both hands while being at work for many years. The diagnosis rendered was bilateral carpal tunnel syndrome (CTS).

Following a review of the claimant's job duties as a welder and the medical information on file, the Workers Compensation Board (WCB) accepted financial responsibility for the claimant's bilateral wrist condition as it was determined that his employment activities had been a major precipitating factor to the onset of his complaints.

On November 16, 1998, a hand and wrist surgeon commented that the claimant would benefit from surgical decompression of the right carpal tunnel. On March 10, 1999, surgery to the right carpal tunnel was performed and the WCB accepted financial responsibility for all of the costs associated with the procedure.

In a follow-up report to the WCB dated May 31, 1999, the attending surgeon advised that the claimant was doing well and that his scar should continue to soften up and become less painful. He noted that the claimant had been laid off from work but he was scheduled to start on the 14th of June. The surgeon indicated that the claimant should be able to return to work without any restrictions.

During a phone conversation on May 19, 1999, the claimant told his adjudicator that he was cleared to return to work on May 17, 1999 but because of a plant shut down he had not returned to work. Subsequent file records showed that the claimant's wage loss benefits were terminated by the WCB effective May 14, 1999.

On August 9, 1999, the treating surgeon reported that the claimant noticed increased numbness in his ring and little fingers which became worse with activity. He felt that the claimant likely had some degree of compression of the right ulnar nerve at the level of the cubital tunnel and a referral was made for nerve conduction studies (NCS). On August 30, 1999, the WCB advised the claimant that his recent symptoms would not be considered related to his carpal tunnel injury.

In a report dated November 10, 1999, the attending surgeon reported that recent NCS revealed no evidence of an ulnar nerve lesion and the presence of a very mild right carpal tunnel compression. He stated that it was very unlikely that further surgical intervention would be beneficial and that it was unlikely that the claimant's symptoms would get better as it was likely related to internal scarring within the nerve.

On March 1, 2000, the claimant advised the WCB that he had returned to work as a welder for a different company on February 7, 2000. Job duties involved grinding metal. He began to notice pain, numbness and swelling in his right arm after two days of working. The claimant said that his wrist had been bothering him since approximately two months after his surgery and that the pain and numbness increased with activity.

On April 13, 2000, a WCB medical advisor was asked to review the case and to comment on whether or not the claimant's current symptoms were related to the previous diagnosis of CTS or to his surgery. In a response dated April 25, 2000, the medical advisor commented that there was still evidence of mild CTS on the right. He felt that the claimant's symptoms of ulnar paraesthesia was unlikely related to the compensable injury.

In a submission to the WCB dated February 26, 2001, a worker advisor contended that claimant still had unresolved right CTS and that it was directly related to the original compensable injury. In support of this position, a report prepared by the attending physician dated February 13, 2001 was submitted for consideration.

On May 1, 2001, a WCB adjudicator denied the worker advisor's appeal by stating, in part, the following "…on a balance of probabilities Mr. [the claimant] had recovered from the effects of his compensable injury and was able to return to work with modifications of usage of a splint on May 17, 1999. Further, it is our opinion that there is no objective medical evidence to substantiate that Mr. [the claimant] was unable to return to work to his full duties despite the evidence of mild carpal tunnel syndrome."

In early February 2002, a different worker advisor provided primary adjudication with reports prepared by the claimant's treating surgeon and the attending physician dated December 10, 2001 and January 23, 2002. Following consultation with the WCB's healthcare branch, primary adjudication informed the worker advisor on July 9, 2002, that no change would be made to its original decision.

On October 7, 2002, the worker advisor requested a Medical Review Panel (MRP) in accordance with Section 67(4) of The Workers Compensation Act (the Act). The worker advisor felt there was a difference of opinion between the claimant's treating surgeon and those of a WCB medical advisor with respect to whether or not the claimant would have had restrictions associated with his CTS condition. In support of his position, a report prepared by the treating surgeon was submitted dated August 21, 2002.

On February 13, 2003, a WCB case manager denied the worker advisor's request for an MRP as she could not find a difference of medical opinion on file regarding the medical matter affecting entitlement to compensation. In reaching this decision, the case manager stated that the numerous NCS reports on file and the claimant's ongoing complaints did not support that there was a direct link to the compensable injury. Consideration was also given to a recent hand Functional Capacity Evaluation which demonstrated inconsistent grip strength testing and a review by one of the WCB's health care consultants. On March 6, 2003, the worker advisor appealed this decision to the Review Office.

In a letter dated March 31, 2003, Review Office upheld the decision to deny the request for a MRP as it was felt that the criteria set out under Section 67(4) of the Act had not been met. Review Office's reasons were as follows:

-the treating surgeon did not examine the claimant between November 1999 to December 10, 2001 and the evidence suggested that he had not seen the claimant since December 10, 2001;

-the claimant worked as a welder after May 14, 1999 whenever work was available to him with the last period of employment being from May 2002 to September 2002. The claimant confirmed that he underwent unrelated surgery on October 7, 2002 which necessitated work restrictions. As the claimant returned to his pre-accident vocation as a welder subsequent to his last confirmed appointment with the treating surgeon and worked in this position for approximately five months, Review Office indicated that it was not compelled to accede to the worker advisor's request for a MRP.

On May 18, 2003, the worker advisor appealed Review Office's decision of March 31, 2003 and an oral hearing was arranged.

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."

An opinion is defined in section 67(1) of the Act as:

"… a full statement of the facts and reasons supporting a medical conclusion."

The worker advisor acting on behalf of the claimant 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 the claimant to request the convening of an MRP.

The claimant was diagnosed with mild right carpal tunnel syndrome for which the WCB accepted the condition and authorized surgery as appropriate treatment. The condition that the claimant subsequently began to experience was diagnosed as mild right ulnar nerve entrapment and not carpal tunnel syndrome. A nerve conduction study undertaken in May 2000 revealed the claimant's right median nerve to be normal.

The worker advisor advanced the following argument in support of the claimant’s position:

“We had previously forwarded Dr. [treating surgeon’s] reports of December 10^th, 2001 and January 23^rd, 2002. These reports confirm that the CTS would attract restrictions on the work that the claimant can perform and that it would have been unlikely that the claimant would have been able to return to his welding duties. Dr. [WCB medical advisor] does not agree with Dr. [treating surgeon] – it is felt that the CTS condition would not attract restrictions.

In his report of August 21^st, 2002 …Dr. [treating surgeon] disagrees with the opinion of Dr. [WCB medical advisor] and again confirms that the claimant would have restrictions associated with the CTS. We therefore have Drs. [treating surgeon] and [WCB medical advisor] disagreeing – there is a difference in medical opinion.

Just because a claimant continues to work at his job duties with an injury does not necessarily lead to the conclusion that the claimant should be doing so. The fact is that the claimant should not have continued given the medical conclusion of Dr. [treating surgeon] that the claimant would not have been able to return to the very heavy workplace duties of the accident employer.”

The claimant returned to his regular work duties for various periods of time from May 19^th, 1999 to September 2002 as work became available. We note that the treating surgeon did not implement any restrictions at the time or subsequent to the claimant’s surgery and he reported that the claimant should be able to return to work without any restrictions. In addition, the claimant was not under the active care of his treating surgeon from November 1999 to December 10^th, 2001.

The treating surgeon now states after a considerable period of time has elapsed that he would have implemented certain work restrictions, however it should be emphasized that he did not.

After having thoroughly considered all of the evidence as well as the arguments advanced by the worker advisor, we find that the requirements of section 67(4) of the Act have not been satisfied. The evidence clearly establishes that there was no difference of opinion following the CTS surgery with respect to the imposition of work restrictions. With respect to the claimant’s physician’s recent statements to the effect that he would have recommended restrictions had he known then what he does now, this does not constitute a “full statement of the facts and reasons supporting a medical conclusion”, as required by the Act. 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
P. Challoner, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 3rd day of October, 2003