The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on November 20, 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

The claimant filed a claim with the Workers Compensation Board (WCB) in February 2002 for right arm and hand difficulties that she related to the nature of her employment duties which included working with a computer, computer mouse, stamping and a calculator. Medical information on file from the claimant's treating physician confirmed a diagnosis of bilateral carpal tunnel syndrome (CTS).

Following consultation with a medical advisor from the WCB's healthcare branch, the claim for compensation was denied by primary adjudication as it was determined that the claimant's right arm and hand difficulties did not arise out of and in the course of her employment activities.

On May 29, 2002, a worker advisor submitted additional information which consisted of a medical report dated May 10, 2002. The physician outlined his opinion that the current diagnosis of the claimant's right hand and arm condition was CTS as well as flexor tendonitis. Based on this new evidence, the worker advisor contended that the claimant's current diagnosis was related to her work duties which arose out of and in the course of her employment.

After consulting with a WCB medical advisor, primary adjudication wrote to the worker advisor on August 14, 2002 to state that no change would be made to the previous decision to deny the claim.

On August 29, 2002, the worker advisor requested the convening of a Medical Review Panel (MRP) 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 claimant's treating physician and WCB medical advisor with respect to whether or not there was a relationship between the diagnosis of CTS and the claimant's work activities as an accounts payable clerk.

Primary adjudication referred the case to a WCB rehabilitation specialist who carried out a work site assessment on October 17, 2002. Following a review of the work site assessment report by a WCB medical advisor, primary adjudication wrote to the worker advisor on December 17, 2002 stating that no change would be made to its earlier decision that the claimant's right arm and hand difficulties were not related to her work activities.

In a submission dated January 2, 2003, the worker advisor asked Review Office to accept the claim and rescind the decisions made on April 12, 2002 and December 17, 2002 based on the following factors:

• the claimant's CTS symptoms developed in the fall of 2001 after her workload significantly increased;
  
  
• the WCB rehabilitation specialist identified a number of factors for the development of CTS following his work site assessment; and
  
  
• the attending physician's opinion that the CTS condition was related to the claimant's work duties.

In the event that Review Office did not accept the claim, the worker advisor requested the case be referred back to primary adjudication for a decision with respect to the convening of an MRP.

On February 21, 2003, Review Office made the determination that the claim was not acceptable. Based on a balance of probabilities, Review Office concluded that the claimant's CTS condition was not work related and did not meet the test required by section 4(1) of the Act. It was also concluded that the "painful inability to fully flex her fingers" as indicated by the hand surgeon was likely associated with an ongoing flexor synovitis of unknown origin.

In a letter dated April 17, 2003, a supervisor with short term claims wrote to the worker advisor with respect to the convening of an MRP. The supervisor stated that the decision to deny the claim was rendered based on a legal test rather than a medical test under Sections 1(1) and 4(1) of the Act and therefore the request for an MRP was denied. This decision was later upheld by the Review Office on June 13, 2002. On September 16, 2003, the worker advisor appealed Review Office's decision and a non-oral file review was arranged.

Reasons

As the background notes indicate, the claimant has requested pursuant to section 67(4) of the Act that a 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."

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, the requirements of the above section have been satisfied and therefore the claimant is entitled to request the convening of an MRP.

A review of the medical evidence on file clearly confirms that there is absolutely no difference of opinion with respect to the claimant's diagnosis of carpal tunnel syndrome. However, what is in dispute is not a medical matter, but rather, the degree and frequency of the claimant's occupational exposure, which is only one of several potential factors that can possibly lead to the development of carpal tunnel syndrome.

We consider that the determination of this issue of the degree of occupational exposure is more properly an adjudicative matter and therefore section 67(4) of the Act does not have any application in this case. Consequently, there is no entitlement to the convening of a medical review panel. 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 8th day of January, 2004