The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on February 27, 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.

Decision

That a Medical Review Panel should not be convened.

Decision: Unanimous

Background

On April 30, 1998, the claimant injured his lower back when he lifted a roto-rooter over a sewer main in a crawl space. As a result of the accident, the claimant was diagnosed with muscle sprain of the right loin muscles. The claim was accepted by the Workers Compensation Board (WCB) and benefits and services were provided to the claimant.

A WCB medical advisor examined the claimant on July 22, 1998. The examination was reported to show no bony injuries and no evidence of radiculopathy. The claimant did show evidence of injury to his right sacroiliac area and the facet joints therein. Associated with this was paraspinal muscles surrounding the joint area. The medical advisor commented that the claimant's behavior was somewhat pain-focused.

On April 7, 1999, the claimant was interviewed by a medical advisor at the WCB's Pain Management Unit (PMU). During this assessment it was concluded that the claimant appeared to have an adjustment disorder with depressed mood and that he qualified for a diagnosis of chronic pain syndrome. It was felt that the workplace incident contributed significantly to its development.

Subsequent file information showed that the claimant was treated by a number of healthcare professionals with respect to his lower back. In September 2002, the claimant was re-assessed at the WCB's PMU and the following conclusions were made:

"The Claimant has been previously assessed a (sic) the Pain Management Unit and there are Interview Notes on file dated June 13, 2000, April 7, 1999, and March 22, 1999. Based on those assessments it was the opinion of the Pain Management Unit that the Claimant met the diagnostic criteria for a Chronic Pain Syndrome. Based on the assessment of June 13, 2000 recommendations were made including Temporary Functional Limitations that were assigned to the Claimant. The recommendations arising from the June 13, 2000 interview were implemented [including the Temporary Functional Limitations] and the Claimant was reassessed at the Pain Management Unit September 12, 2002.

Based on the assessment of September 12, 2002 it is the opinion of the Pain Management Unit that the Claimant does not currently meet the diagnostic criteria for a Chronic Pain Syndrome as the disability is not proportionate in all areas of functioning. As such the Temporary Functional Limitations assigned June 13, 2000 on the basis of Chronic Pain Syndrome should be withdrawn gradually over an appropriate period of time as determined by Case Management. As well it is recommended that the Counseling with Ms. [name] be time limited and transitional in nature. The Pain Management Unit also recommends that the file be forwarded to a General Medical Advisor to the Board for an opinion as to whether or not there is any ongoing physical component contributing in a material way to the Claimant's ongoing pain that is causally related to the Compensable Injury. The file will now be considered by Case Management as appropriate."

In a letter dated October 31, 2002, a case manager with Rehabilitation and Compensation Services advised the claimant that it was the WCB's opinion that he had recovered from the effects of his compensable injuries and that WCB benefits would be paid up to December 20, 2002 following the completion of a six week reconditioning program.

In a submission dated April 1, 2003, a worker advisor contended that the claimant continued to be disabled in all areas of function as a result of his compensable injury. In support of this position, new medical information was submitted dated March 23, 2003 from an Associated Professor of Psychiatry. In this report, the specialist stated, in part, "…he realizes that he has a spinal degenerative disc disease and this is causing him pain. It is my opinion he will remain chronically impaired from a physical perspective in terms of being able to return to work resembling anything that he had before. From a psychiatric perspective he falls into the classification of Chronic Pain Disorder associated with a general medical condition".

The worker advisor believed that the above report supported a cause and effect relationship between the 1998 compensable injury and the diagnosis of Chronic Pain Disorder. In the event that adjudication did not change the October 31, 2002 decision, the worker advisor requested a Medical Review Panel (MRP) be convened in accordance with section 67(4) of The Workers Compensation Act (the Act).

In a response to the worker advisor's request, it was determined on May 30, 2003, that no change would be made to the decision of October 31, 2002. It was felt that the psychiatrist's report of March 23, 2003 addressed pain disorder and not Chronic Pain Syndrome as per the WCB criteria nor did it provide any new medical evidence to support the diagnosis of Chronic Pain Syndrome.

On June 17, 2003, the worker advisor provided the WCB with another report from the treating psychiatrist dated June 14, 2003 in which he provided his opinion regarding the claimant's diagnosis using the WCB's Chronic Pain checklist. In part, the specialist stated, "I reviewed your check list and basically it is my opinion he falls into the criteria that you use for Chronic Pain Syndrome. You also have a section entitled, 'contraindication diagnosis'. It is my opinion the diagnosis is not contraindicated by any of the particular points outlined in the six points mentioned in this checklist."

In a response dated June 26, 2003, a WCB sector manager denied the request for a MRP under section 67(4) of the Act. The sector manager stated:

"In order for a doctor's report to be considered an "opinion" consistent with the Act's definition of opinion it must be based on a "full statement of the facts and reasons supporting a medical conclusion" must be provided. It is my belief that the information that I have on file from Dr. [name] does not meet this definition.

Dr. [WCB medical advisor]'s medical opinion on file indicates that you do not fit the WCB definition of Chronic Pain Syndrome. He has provided documentation outlining how you spend your time and what impacts, if any, your pain has had on all aspects of your daily life. His opinion is supported by an analysis that supports how he came to formulate his opinion. This documentation on file is included in his September 12, 2003 (sic) exam notes."

On September 16, 2003, the case was considered by Review Office at the request of the worker advisor, who appealed the decision of June 26, 2003. Review Office noted that the treating psychiatrist felt that the claimant had a pain disorder and that it was related to degenerative disc disease. Review Office stated that it did not disagree with this opinion but pointed out that the degenerative disc disease was not a compensable condition and it was not brought on by the April 1998 incident.

Review Office was of the further opinion that the debate over an attempt to clinically define the pain disorder involved in this matter was moot as Review Office felt that a cause and effect relationship between the April 1998 injury and subjective complaints of pain in the lumbar spine as of December 21, 2002, had not been medically confirmed. The Review Office was therefore unable to grant the convening of an MRP. On December 11, 2003, the worker advisor appealed Review Office's decision and a non-oral file review was convened.

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 claimant contends that there is a clear difference of medical opinion between his treating psychiatrist and the WCB's medical advisors. The claimant argued that his psychiatrist's March 23, 2003 report substantiated a cause/effect relationship between the claimant's compensable injury and the treating psychiatrist's diagnosis of chronic pain disorder. Thus the requirements of the above section have been satisfied, which would therefore entitle him to request the convening of an MRP.

With all due respect to the claimant and his worker advisor, we find that there is no difference of medical opinion. Both the WCB medical advisor and the claimant's treating psychiatrist agree that the claimant has a pain disorder consistent with DSM-IV and that this is related to his non compensable pre-existing disc disease. While there may be disagreement with respect to the diagnosis of chronic pain syndrome and the checklist used by the WCB, there is no suggestion that this condition is a result of his compensable injury. Accordingly, we find that these medical opinions do not directly affect entitlement to compensation, as required under subsection 67(4).

We find that the requirements of subsection 67(4) of the Act have not been met and 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 7th day of April, 2004