The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 18, 2004, at the request of legal counsel, acting on behalf of the worker. The Panel discussed this appeal on the same day and again on June 7, 2004.

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 January 20, 1992, the worker injured her left shoulder muscle during the course of her employment as a labourer. Subsequent medical information diagnosed the worker with a left shoulder strain and she was prescribed medication and physiotherapy treatments. By June 1, 1992, the worker was considered capable of returning to her pre-accident duties by her attending physician and wage loss benefits were paid to May 29, 1992 inclusive and final.

In July 1998, the worker submitted a claim to the Workers Compensation Board (WCB) for continuing left shoulder difficulties that she related to her original 1992 injury.

A Doctor's First Report dated July 20, 1998, noted that the worker's left shoulder pain began in mid May 1998 and progressively became worse. The diagnosis rendered was bursitis of the left shoulder and the worker was prescribed physiotherapy and medication. An x-ray report of the left shoulder dated July 21, 1998 revealed slight widening of the left acromioclavicular (AC) joint.

In answer to a WCB questionnaire dated August 13, 1998, the attending physician noted that the worker "appeared to have recovered" from her left shoulder strain injury of January 1992.

The worker was referred to an orthopaedic surgeon. In a report to the attending physician dated October 8, 1998, the orthopaedic surgeon stated that the worker was having difficulty continuing with her modified duty position. The worker had pain on palpating and stressing the AC joint and the orthopaedic surgeon thought that this was an inflammatory rather than a compressive or a mechanical type of problem. The worker was given an injection of Depomedrol and Xylocaine into the left AC joint.

On November 3, 1998, the orthopaedic surgeon advised the attending physician that the worker's left shoulder responded temporarily to the injection and that he was proceeding with decompression of the AC joint and rotator cuff, with exploration of the cuff.

The worker was examined by a WCB medical advisor who noted that the worker had ongoing left shoulder pain arising from the left AC joint. With respect to a cause and effect relationship, the medical advisor commented that the AC joint problem was not directly related to the worker's latest work activity because the work did not involve any overhead activities or repetitive movement of her shoulders. He felt it was possible, although unlikely, that her condition was related to her previous 1992 injury. The medical advisor recommended the WCB obtain further information from the employer and the attending physician with respect to any shoulder difficulties that the worker may have complained of prior and subsequent to her 1992 claim. He would then provide his opinion with respect to the proposed surgery outlined by the orthopaedic surgeon.

In a memo to file dated March 4, 1999, a WCB adjudicator asked the examining WCB medical advisor to review the file information which contained statements from the worker (a signed declaration dated February 19, 1999) and the employer as well as videotape evidence of the worker's job activities. A report was also received from the attending physician dated February 17, 1999. The medical advisor confirmed his opinion that there was no causal relationship between the worker's 1992 injury and the worker's current shoulder complaints. He felt that the worker was not totally disabled effective December 11, 1998 and that surgery was not warranted. The WCB denied responsibility for the claim.

On May 13, 1999, the orthopaedic surgeon noted that the worker "…has exhausted all conservative treatments, continues to be disabled essentially for all work available to her, and as far as I can see, this is related to her previous work injury."

On June 17, 1999, the worker underwent the following surgical procedure: "Bursectomy, acromioplasty; distal clavicle excision". The post-operative diagnosis was "AC arthritis, rotator cuff tendonitis, bursitis left shoulder."

In an appeal submission dated August 9, 2000, the worker noted that she had been without pain and had been able to return to work since her recovery from surgery. As a result, the worker felt that she should be compensated from December 10, 1998 to February 7, 2000 as a consequence of her May 1992 work injury.

On January 26, 2001, legal counsel, acting on behalf of the worker, provided the WCB with a report from the orthopaedic surgeon dated December 14, 2000 which outlined his opinion that the disability suffered by the worker was work related and prevented her from carrying out the responsibilities of her employment. As this information differed from the opinions expressed by the WCB's medical advisor, legal counsel asked the WCB to convene a Medical Review Panel (MRP), pursuant to subsection 67(4) of The Workers Compensation Act (the Act).

On March 30, 2001, a WCB sector manager determined that the worker's recurrent difficulties in late 1998 and into 1999, and the resulting surgery, were not a direct result of either the 1992 or 1998 WCB claims. The WCB also determined that the requirements for a MRP had not been met as the orthopaedic surgeon's report did not contain a full statement of the facts and reasons supporting a medical conclusion. On August 6, 2003, the worker's solicitor appealed the WCB's decision to deny the request for a MRP.

In a letter dated December 4, 2003, Review Office made reference to the report by the orthopaedic surgeon dated December 14, 2000 in which he expressed his belief that the worker's most significant injury occurred in 1992 as there were frequent aggravations and recurrences occurring after that injury. Review Office found that the orthopaedic surgeon's comments were based upon assumptions that the Review Office was unable to verify from an adjudicative perspective. Note was made of the signed declaration provided by the worker on February 19, 1999, in which she confirmed that she made no complaints of left shoulder problems to her employer between 1992 and 1998 and did not seek medical attention during this same period.

Review Office felt that the orthopaedic surgeon's opinion could not be construed as being a full statement of the facts of the claim as he was provided with a differing version of the worker's complaints between 1992 and 1998 than was given to the WCB. Review Office found that the decision to deny the recurrence was made on the basis of the worker's lack of documented shoulder complaints between 1992 and 1998 rather than on the comments of a WCB medical advisor. The request for a MRP under section 67(4) of the Act was therefore denied. On December 22, 2003, the solicitor appealed Review Office's decision with respect to the denial of a MRP to the Appeal Commission and an oral hearing was convened on May 18, 2004.

At the hearing held on May 18, 2004, it was agreed to by all parties that the worker's solicitor would provide the Appeal Panel with case law that he felt was relevant to the issue under appeal. This information was then shared with the employer's advocate for comment. On June 7, 2004, the Panel met to render its final decision.

Reasons

We reviewed the claim file and conducted an oral hearing. The worker attended with legal counsel who made a submission and answered questions on the worker's behalf. The employer was represented by a staff member and an advocate who made a submission and answered questions. Both parties provided closing comments. We thank the parties for their helpful submissions and participation.

Subsections 67(1) and 67(4)

This was an appeal by the worker who was seeking to have a MRP convened under subsection 67(4) of the Act. This subsection provides:

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 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.

Subsection 67(1) is also relevant to this appeal. It defines an opinion as "…a full statement of the facts and reasons supporting a medical conclusion."

For subsection 67(4) to apply there must be a difference of opinion between the worker's physician and a WCB medical advisor on a medical matter affecting entitlement to compensation. For there to be a difference of opinion it is necessary that the differing opinions be based upon a common set of facts. Where the opinions are based upon different facts, it cannot be said that subsection 67(4) is satisfied. There is no common point of reference from which a difference of opinion can be established where the facts relied upon are different.

The requirement for a common set of facts is essential to the MRP process. MRPs are convened to provide a medical opinion where a difference of medical opinion exists on a file. MRPs are not adjudicative bodies. It is not their function to adjudicate on which facts are correct; rather, they are to provide opinions on medical matters. The adjudication of facts is a matter for the WCB and the Appeal Commission. For example, in a case dealing with the relationship of a worker's job duties to the injury, there must be a common understanding of the job duties so that the MRP can express an opinion on the relationship of the job duties to the injury. If the worker's physician relies on an understanding that the job duties primarily involve the use of a computer mouse and the WCB medical advisor relies upon a job description that the worker's duties rarely involve the use of a mouse, the difference of opinion between the physicians is meaningless. In such a case the requirements of subsection 67(4) are not met, as the facts relied upon are different and thus there is not a true difference of opinion over a medical matter affecting entitlement to compensation. A request for a MRP under subsection 67(4) in such a case would fail.

It is also important to note that a MRP is part of the evidence gathering process undertaken by the WCB and/or the Appeal Commission, to assist the appropriate adjudicator(s) in understanding complex or conflicting medical information on a file.

It should also be pointed out that the granting or denial of a MRP is not determinative of the rights of the worker to benefits. The MRP opinion is only one of the factors that is considered in the decision making process. Whether or not a MRP is granted under subsection 67(4) of the Act, it remains open to the WCB and the Appeal Commission to weigh all facts and medical evidence on the file as part of the adjudication process.

For the worker's appeal to be successful, we must find that the requirements of subsection 67(4) of the Act have been met. We were not able to find that the requirements of the Act were met. We find there is not a difference of opinion over a medical matter affecting compensation.

The employer's representative supported the Review Office decision. She submitted that the requirements of subsection 67(4) of the Act were not met. She noted that "Not only was [the orthopaedic surgeon's] opinion not supported by all the facts of the case, his opinion actually contradicts his own patient's account of the events that occurred between 1992 and 1998…"

The worker's legal counsel submitted that all the requirements for convening a MRP were met. He noted that the orthopaedic surgeon expressed the conclusion that the 1998 injury was related to the 1992 injury. This contrasted to the WCB medical advisor's conclusion that there was no relationship between the two injuries.

The worker's counsel argued that the opinion of the orthopaedic surgeon was contained in a series of letters and reports provided by the orthopaedic surgeon. He also argued that the WCB should not use technical legal arguments to refuse to convene a MRP. He provided legal precedents and statutory authority to support the position that the Act must be interpreted liberally. He noted that the worker is "…entitled to some form of independent tribunal to resolve her case." He also suggested that the report of the orthopaedic surgeon be preferred over that of the WCB medical advisor as the orthopaedic surgeon is a specialist and had actually operated on the worker.

The worker's counsel asked us to consider that the orthopaedic surgeon's opinion was contained in all the letters and reports prepared by the orthopaedic surgeon The Panel accepts that an opinion can be found in the totality of the reports and need not be included in one succinct report from the orthopaedic surgeon. This was not the issue in this case. The issue in this case surrounds the facts that the orthopaedic surgeon relied upon to reach his conclusion regarding the relationship between the 1992 and 1998 injuries. Central to his conclusion was the understanding that the worker had continual problems after the 1992 accident.

The orthopaedic surgeon states in his letter of April 17, 2002 "Therefore, considering the similarity of the condition between 1992 when she was referred to me in 1998 and the available documentation regarding long duration and continuation of symptoms, it seems to me that there is an ongoing connection between the 1992 and 1998 problems." (emphasis added)

The orthopaedic surgeon also made this comment in December 14, 2000 letter "From the information available, I suspect her most significant injury was in 1992. Thereafter, it was a combination of frequent aggravations and recurrences, activity and work related, with some overall enhancement of the condition, following the 1992 accident." (emphasis added)

The worker provided the following information on the duration and continuity of symptoms in a signed declaration on February 19, 1999:

"…I was off work completely as a result of that injury as per the file until May/92. I was given a light duty job standing by the freezer which involved taking out sealed bags that had defects. I was doing this job for about the next 3 yrs. This was a very easy job which involved taking the defective bags out which was not too often. This job was not bad on my shoulder and I had no problems with my shoulder for which I had to see any MD's or complain about. There were a few different times where my shoulder would bother me from time to time from the cold I believe and I saw a private masseuse about 3 x 's over 3 yrs. I never missed any time from work over that period except for about 2-3 mos for a stomach problem about 2-3 yr ago for which I was on group insurance…

For the 3 yrs or so that I was doing this job I would find that my shoulder would bother me off and on. I never missed anytime from work over that 3 yr period. I never saw any MD's about my shoulder up until this recent claim because the problems were not bad enough to go see a MD about. For this same reason I never bothered to complain as there was no use in doing so. I really can not tell you why my shoulder got so bad in July 98 as per this file. There had not been any new accident nor any change in my duties to account for it. There was nothing that happened outside of work to cause my problems again. I think that the problems just came back from my work over the yrs…" (emphasis added)

The worker's comments in her declaration contradict the position of the orthopaedic surgeon that there were frequent aggravations and recurrences.

It is clear that the physicians offered differing conclusions on the relationship between the 1992 accident and the 1998 accident. The orthopaedic surgeon said the 1998 injury is related to the 1992 injury. The WCB medical advisor said they were not related. Differing conclusions alone are not sufficient to establish an entitlement to a MRP. We find that the facts relied upon by the orthopaedic surgeon are inconsistent with the facts provided by the worker and the attending physician, and differ from the facts relied upon by the WCB medical advisor. As a consequence, we find there is not a difference of opinion as required by subsection 67(4) of the Act.

Representatives for both parties discussed whether the opinion of the orthopaedic surgeon or WCB medical officer should be preferred. We do not see this as one of the questions that must be answered in deciding this appeal. It is not a question of preferring opinions, rather a question of whether there is a demonstrated difference of medical opinion as required by the Act.

In asking for a referral to a MRP, the worker's legal counsel submitted that the worker was entitled to have her case resolved by an independent tribunal by which, we presume, he means the MRP. We note, however, that a MRP does not have authority to resolve the worker's case. A MRP is an independent body with authority to provide medical opinions which are then sent to the WCB and/or Appeal Commission to be used as part of their adjudicative process. We note that the question of the acceptance of the worker's claim and her entitlement to compensation has not been appealed to the Appeal Commission. We make no finding on whether the worker's 1998 injury is related to her 1992 injury. Accordingly, that is a matter to be addressed at a future date, at the appropriate adjudication level, which may include the Appeal Commission if an appeal is filed.

Finally we acknowledge the jurisprudence and statute law referred to by the worker's counsel. We agree that the Act should receive a liberal interpretation. We are satisfied that we have interpreted the Act appropriately.

This appeal is respectfully denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of July, 2004