The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was conducted on January 30, 2004, 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

On May 7, 2001, the claimant submitted a claim for compensation benefits indicating that she had injured her back on April 4, 2001 while emptying garbage containers at work.

The claimant's back condition was treated by two physicians as well as a chiropractor. On July 18, 2001, the claimant underwent a CT scan of the lumbar spine which revealed the following evidence:

"IMPRESSION: Small L4,5 disc of questionable significance. Larger L5,S1 disc to the right of midline. This could be significant and clinical correlation is recommended."

The claim was accepted by the Workers Compensation Board (WCB) and benefits and services were paid to the claimant beginning on April 6, 2001.

On April 25, 2002, a WCB orthopaedic specialist examined the claimant and his comments/opinion of the claimant's condition was as follows:

"The claimant has degenerative changes at the L4-L5 and likely the L5-S1 levels of her spine. The prominence of the disc at these levels, I think, is likely due to these degenerative changes. At the time of the CT scan it may have been slightly enhanced by a disc herniation. At the present time, her physical findings are consistent with degenerative disc disease and there are no definite signs of nerve root compression."

In a hand written memo dated May 2, 2002, the WCB orthopaedic specialist made the following comments after discussing the case with a WCB case manager:

"The claim dates from Apr 4/01. Initially no specific injury was reported. Lifting injury reported Dec 7/01. Initial reports indicate "no sign trauma", chronic LBP. Report received for Mar. 2000. If there was an acute disc protrusion in Apr 01 it should have healed by now (or long ago). Recurrent disc protrusions are possible. Advise a repeat CT scan. If the appearances are not significantly changed they are likely due to chronic degenerative change. If the "protrusion" is smaller it has likely healed. If it is greater then there may have been another protrusion - more disc herniation. The change on the CT would have to be "significant". "

On May 23, 2002, a CT of the lumbar spine revealed the following evidence:

"IMPRESSION: Diffuse disc bulge at L4,5 of uncertain clinical significance. Right paracentral diffuse disc bulge, possibly encroaching on the traversing right S1 nerve root. Does this correlate with the clinical findings?"

In a hand-written memo dated June 7, 2002, the WCB orthopaedic specialist stated that he compared the recent CT scan findings of May 23, 2002 to the CT scan findings of July 18, 2001. He suspected the disc protrusion at L5-S1 to be smaller. He interpreted the findings to be unchanged and that they were consistent with chronic degenerative disc disease. He noted that the claimant would have long term restrictions because of degenerative disc disease.

On June 18, 2002, the claimant was advised that wage loss benefits would be paid to June 25, 2002 inclusive and final as it was determined that her ongoing problems were related to degenerative changes as there had not been any significant changes found in the two CT scan evaluations.

In an appeal submission to Review Office dated July 17, 2002, a worker advisor, acting on behalf of the claimant, quoted the following excerpt from a March 15, 2002 report by the claimant's treating physical medicine and rehabilitation specialist:

"Her physical examination was similar to that noted when she was seen in December. There was limitation of spinal motion globally. No focal strength deficit was noted in either lower limb. No sensory deficit or gradient to pin was present in either leg. Straight leg raise testing was suggestive of active nerve root irritation bilaterally."

Based on the above commentary, the worker advisor contended that the claimant continued to suffer from the effects of S1 nerve root encroachment which was a result of the L5-S1 disc herniation. She also noted the opinion expressed by the WCB orthopaedic consultant on April 25, 2002 in which he stated that the L5-S1 disc herniation caused some enhancement to the claimant's degenerative changes.

In a decision dated September 6, 2002, Review Office held that the claimant was not entitled to benefits beyond June 25, 2002. Review Office noted that the case had been reviewed by the WCB's orthopaedic specialist on several occasions and that he had consistently indicated that the claimant had degenerative changes in her lumbar spine which was responsible for her ongoing back complaints. "The Worker Advisor has interpreted his comments of April 25, 2002 to mean that this accident enhanced or permanently made worse the degenerative disc disease because of the disc herniation." Review Office did not believe this to be the correct interpretation of the doctor's comments.

Review Office also pointed out that the orthopaedic specialist found that the physical findings were consistent with degenerative disc disease and that the claimant had no definite signs of nerve root compression. A second CT scan was ordered and compared with the first scan. Following a comparison of the two CT scans, the WCB specialist stated that even if there was a disc protrusion originally, this should have healed many months previously.

Review Office also considered the WCB's policy on pre-existing conditions when rendering its decision. Review Office concluded that the claimant had recovered from the effects of this accident by June 25, 2002 and she was not entitled to further benefits.

On December 11, 2002, the worker advisor asked Review Office to reconsider its decision of September 19, 2002 based on a report from the treating physiatrist dated November 29, 2002. In a decision dated January 31, 2003, Review Office maintained its position that the claimant was not entitled to payment of wage loss benefits beyond June 25, 2002.

In a submission dated June 10, 2003, the worker advisor requested the convening of a Medical Review Panel (MRP) in accordance with Subsection 67(4) of The Workers Compensation Act (the Act). It was contended that a clear difference of medical opinion existed between the claimant's treating physiatrist and occupational health physician and the WCB's orthopaedic consultant's April 25, 2002 opinion as to the cause/effect relationship between the claimant's back condition and the April 4, 2001 compensable injury. In this regard, the worker advisor quoted the following excerpt from the physiatrist's report of November 29, 2002:

"The information presented to me indicates that Mrs. [the claimant] sustained a right L5-S1 disc protrusion as a result of her workplace injury of April 2001. The history she provided indicates that she did experience radicular symptoms extending into the right leg. The referral to me from the Workers Compensation Board indicates that she had radicular pain. Her more recent CT scan demonstrated that there is still a right paracentral disc herniation at L5-S1. It is my opinion that her symptoms continue to be, in part, related to the right leg, as she did in the past. She is also experiencing pain in the back and the gluteal region bilaterally that would be characterized as "mechanical low back pain:". The "mechanical low back pain" may not be a direct result of the injury but she continued to report radicular symptoms that would be secondary to the disc herniation and nerve root irritation.'

The worker advisor quoted the following excerpt from the May 15, 2003 report by the occupational health physician:

"Reviewing the history file and my examination, it is my opinion that her April 2001 injury and its subsequent management was the cause of the L5-S1 disc protrusion found on CT. She has made a poor recovery thus far, with more generalized back symptoms and poor activity tolerance. I note the comments of Dr. [the treating physiatrist] (November 29, 2002):

I would generally agree with this opinion. She continues to be restricted and not to have recovered from her work injury, in a relatively unchanged pattern that continues to be disabling."

On July 18, 2003, a manager with Rehabilitation and Compensation Services denied the worker advisor's request for a MRP stating that the above two opinions did not offer a full statement of fact and reasons supporting a differing medical conclusion.

In reaching this conclusion, the manager noted that the physiatrist's November 29, 2002 report is prefaced by his comments that he "is not certain as to the strength of that relationship" referring to the relationship between the claimant's symptoms and her workplace injury. The manager also noted that the occupational health physician first examined the patient "for the first time two years post accident" and "generally agrees with the [physiatrist's] November 29, 2002 report".

In her view, "given the level of uncertainty attached to these opinions, I do not consider this to offer a full statement of the fact(s) and reasons to support a differing medical opinion."

On July 23, 2003, the worker advisor appealed this decision to Review Office. In her letter, she placed sole emphasis upon the November 29, 2002 report of the physiatrist. "[The physiatrist's] November 29, 2002 report was provided in support of a difference in medical opinion."

In a decision dated September 16, 2003, Review Office confirmed that a MRP would not be convened. The decision of Review Office cited subsections 67 (1) and (4) of the Act and noted that a medical opinion means a full statement of the facts and reasons to support a medical conclusion.

Review Office noted that the November 29, 2002 report of the Physiatrist found that, in addition to symptoms related to the disc herniation, the worker was experiencing pain in her back and gluteal region bilaterally which was characterized as mechanical lower back. It was observed that the particular diagnosis may not be a direct result of the work injury. Review Office also noted that the occupational health physician had seen the worker only once and for the first time on April 10, 2003, more than two years post-accident.

Review Office found the reports referred to by the worker advisor were speculative in nature. Review Office stated, "The medical matter affecting this worker's entitlement to further benefits is the relative contribution of the various medical entities that have been diagnosed. In the opinion of Review Office, the medical reports submitted by the attending physicians do not satisfy the definition of an opinion as contemplated in Section 67(1) of the Act, therefore, the request to convene a Panel under Section 67(4) is denied."

In November 2003, the worker advisor disagreed with Review Office and a non-oral file review was arranged. In the worker advisor's submission, the November 29, 2002 report of the physiatrist "supports that there is an ongoing cause/effect relationship between her radicular pain, mechanical lower back pain and the April 4, 2001 compensable injury." She argued there was a clear difference of medical opinion between the opinion of the physiatrist and the Medical Advisor, whose June 7, 2002 memorandum on file did "not support an ongoing cause/effect relationship between her current radicular and mechanical lower back symptoms and the April 4, 2001 compensable injury."

Reasons

The claimant has requested that a medical review panel be convened as per ss. 67(4) of The Act. The panel's consideration of this issue is driven by its application of ss. 67(1) and (4) of The Act to the specific facts of the case.

Subsection 67(1) of The Act provides:

In this section

"opinion" means a full statement of the facts and reasons supporting a medical conclusion;

"panel" means a medical review panel.

Subsection 67(4) states

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 sole issue in this appeal is whether there is a difference in opinion between the medical advisor and the physiatrist in terms of whether there is a relationship between the claimant's ongoing medical condition and the April, 2001 compensable injury which would justify the convening of a medical review panel.

The starting point in the panel's analysis is the medical opinion of the board medical advisor who was definitive in his often repeated view that the claimant had degenerative changes in her lumbar spine which were responsible for her ongoing back complaints. In essence, his conclusion was that the claimant was restricted in her ability to work by degenerative back changes and that the workplace injury was no longer affecting her ability to work.

The primary medical evidence which the claimant relies upon is the November 29, 2002 letter of the physiatrist which is less than definitive. The worker advisor suggests that the report of the physiatrist "supports that there is an ongoing cause/effect relationship between her radicular pain, mechanical lower back pain and the April 4, 2001 compensable injury."

With respect, this suggestion must be read with caution given the actual report. In terms of the relationship between the mechanical lower pack pain and the April 4, 2001 injury, the physiatrist finds that "this may not be the result of the work injury". In terms of any other relationship between her symptoms and her injury, the physiatrist is forthright in his acknowledgement that "I am not certain as to the strength of that relationship." In the panel's view, this is a less than definitive medical conclusion and does not fit within the meaning of an opinion under ss. 67(1) of The Act.

To meet the test under ss. 67(4), the panel must be satisfied that there is a difference in opinion between the board advisor and the physician selected by the worker with respect to the question of whether the claimant's current medical restrictions are caused by her April, 2001 compensable injury. An opinion means a full statement of the facts and reasons supporting a medical conclusion.

The board advisor has been definitive in his conclusion that the claimant had degenerative changes in her lumbar spine which were responsible for her ongoing back complaints. The physiatrist's letter of November 29, 2002 offers no such definitive conclusion. He is not certain as to the strength of the relationship between her symptoms and her workplace injury and he notes that the mechanized lower back pain may not be the result of the work injury.

Put another way, the panel is faced with a definitive no by the board advisor and a less than definitive maybe by the physiatrist. This is not the difference of opinion in respect of a medical matter affecting entitlement to compensation contemplated by the legislation.

The panel notes that the original request for a medical review panel also referenced the May 15, 2003 letter of the occupational health physician as a basis for the grounds of opinion. However, the appeal before this panel does not incorporate that letter. Given that fact, it is not necessary to extensively canvass that issue. However, the panel notes with approval the September 16, 2003 comments of the Review Office on that subject.

In the panel's view, there is no difference in opinion within the meaning of ss. 67(4) of The Act.

Accordingly, the request that a medical review panel be convened is denied and the appeal is dismissed.

Panel Members

B. Williams, Presiding Officer
B. Popowich, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of March, 2004