The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on October 22, 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 be convened in accordance with Section 67(3) of The Workers Compensation Act (the Act).

Decision: Unanimous

Background

On August 10, 1978, the claimant was pinned against a wall by a jumbo drill during the course of his employment as a heavy duty mechanic. The claimant initially reported injuries to his left knee and both thighs as a result of the accident. The claim was accepted by the Workers Compensation Board (WCB) and various types of benefits were awarded to the claimant.

This claim had been considered by the Appeal Commission on a number of occasions to consider various appeals put forth by the claimant's solicitor and by a worker advisor. For complete details surrounding the history of the claim, please refer to the following Appeal Panel Decision Nos: 50/96, 13/02 and 106/02.

With respect to Decision No. 106/02, the Appeal Panel determined that the claimant was not entitled to the payment of temporary total disability benefits beyond August 6, 1999. The following rationale was provided by the Panel for its decision:

"…The diagnosis of osteoarthritis of the right knee and both hips is not, on a balance of probabilities, causally related to the original compensable injury to the claimant's left knee and lower back for which the WCB has been paying compensation. There is no medical evidence on file to support the contention that the claimant's osteoarthritis is a sequela or part of a reactive mechanism or a need to compensate for his left knee difficulties. Accordingly the claimant's appeal is hereby dismissed."

On December 3, 2002, the claimant asked the WCB to convene a Medical Review Panel (MRP) with respect his right knee condition. The claimant felt there was a difference of medical opinion between his treating physicians and WCB medical personnel concerning the WCB's responsibility for his right knee and hip conditions and whether or not he was considered employable.

In a letter to the claimant dated January 20, 2003, a WCB sector manager stated, in part, "…it would be my opinion 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. While some of your doctors have commented that they feel that all the problems with your right knee and hips are related to your compensable accident I do not feel they have met the criteria set out under Section 67(1) since their opinions do not seem to be supported by objective medical information. I am therefore unable to grant the request to convene a Medical Review Panel." With respect to the question of employability, the sector manager stated the following: "…the WCB is not of the opinion that you are employable when taking into considerations all of your different medical conditions. When determining an individual's employment potential our assessment only takes into consideration medical problems associated with a compensable injury. As a result it is our opinion that the cumulative impact of your compensable injuries would not prevent you from doing sedentary work." On June 5, 2003 the claimant's solicitor appealed this decision to Review Office.

On June 20, 2003, Review Office stated in its decision to the claimant that the opinions expressed by the treating physicians, as outlined in his letter of December 3, 2002, were speculative and not supported by a full statement of the facts and reasons supporting a medical conclusion as is required by legislation. Review Office therefore concluded that the requirements of Section 67(1) of the Act had not been fulfilled and that it was unable to grant a MRP under Section 67(4) of the Act. On August 13, 2003, the claimant expressed disagreement with this decision and a non-oral file review was arranged.

Reasons

This case involves a worker who incurred an injury to his left knee as a result of a workplace accident in 1978. His claim for compensation was accepted and benefits were paid accordingly. Over the ensuing years, problems related to his right knee and lower back have been accepted as sequelae of the original injury.

The issue before the Panel in this appeal is whether or not a Medical Review Panel (MRP) should be convened to consider whether or not the claimant is capable of working at sedentary duties. This request was denied by Review Office in a decision dated June 20, 2003.

For the appeal to be successful, we would have to find that the terms of section 67 of The Workers Compensation Act are met. We have so determined.

For cases which pre-date the 1990 and 1992 amendments to the Act, the practice is to apply subsection 67(1) from the current (1992) version of the Act and subsection 67(4) from the 1990 version. They read as follows:

67(1) In this section,
"opinion" means a full statement of the facts and reasons supporting a medical conclusion;
"panel" means a medical review panel.

67(4) 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 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, to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

Review Office denied his request for an MRP on the basis that the provisions of subsection 67(4) had not been met. The review officer wrote that the opinions submitted by the claimant in his December 2002 letter were "speculative and are not supported by a full statement of the facts and reasons supporting a medical conclusion, as required by legislation."

In our view, this was a correct decision based on the information before the review officer at that time. Subsequent to that decision, and prior to our review, the claimant submitted a letter written by an orthopaedic surgeon.

In this letter, the surgeon details his reasons for coming to his conclusions in respect of the claimant's various problems. We believe that the test required by subsection 67(4) of the Act has been met.

This doctor expresses the opinion, among others, that the claimant is incapable of performing any employment as a result of his workplace injuries. This is clearly contradictory to the opinion of board medical advisors, who have concluded that he is able to work at sedentary duties.

Accordingly, the claimant is entitled to have a Medical Review Panel convened, pursuant to subsection 67(4) of the Act.

It has been brought to our attention that subsection 1(1) of the Act defines "physician" as meaning a duly qualified medical practitioner who is lawfully and regularly engaged in the practice of his profession in Manitoba. It has been suggested that this might disqualify the orthopaedic surgeon who has expressed the opinion in this case, as he is based in Vancouver and licensed to practice in British Columbia.

It is our view that such a disqualification would violate the spirit and intent of the Act. It would also pose a serious threat to the conduct of board business, as the board often relies on the opinions and services of licensed physicians in other provinces.

Accordingly, we do not find this to be an impediment to our principal conclusion in the appeal.

The appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
P. Challoner, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of December, 2003