The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 25, 2004, at the request of a worker advisor, acting on behalf the claimant. The Panel discussed this appeal on March 25, 2004 and again on May 31, 2004.

Issue

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of The Workers Compensation Act; and

Whether or not the worker's ongoing back difficulties are related to the work injuries of August 5, 1999, January 9, 1996 or December 17, 1995.

Decision

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of The Workers Compensation Act; and

That the worker's ongoing back difficulties are not related to the work injuries of August 5, 1999, January 9, 1996 or December 17, 1995.

Decision: Unanimous

Background

On December 17, 1995, the claimant was squatting or bending down to attach a roll of plastic onto a machine and felt pain in his lower left back after he went to straighten up. The claimant continued working for the rest of his shift but the pain began to get worse. In a chiropractor's first report dated January 2, 1996, the diagnosis rendered was a left sacroiliac subluxation and a strain.

In a Doctor's First Report dated January 5, 1996, the attending physician reported that the claimant had lower lumbar and left sided pain relevant to the left thigh and that this gradually settled down with rest and chiropractic treatment. The claimant presently had full range of lower back movement with no symptoms. The physician noted that the claimant had returned to work on January 2, 1996.

On January 12, 1996, the claimant filed a second claim for compensation with respect to an accident that occurred in the workplace on January 9, 1996. On this date, the claimant was performing a mill roll change when he experienced pain in his lower left back. When he sat down immediately afterward, he began to feel pain in the lower middle portion of his back and shooting pains down his left thigh.

A Doctor's First Report dated January 10, 1996, diagnosed the claimant with an acute lower lumbar back strain. Rest and analgesics were prescribed. On January 17, 1996, the claimant was authorized to return to light duties. In a progress report dated February 9, 1996, the claimant was noted to have full range of movement and there were no particular findings on examination. The physician commented that full recovery was anticipated.

The next claim filed by the claimant was on August 9, 1999, whereby he reported a sharp pain in his lower left back after bending forward to lift a 90 lb. object. The diagnosis rendered by the attending physician on August 6, 1999 was an acute strain of the left sacroiliac joint. The claimant was considered totally disabled and was prescribed medication and physiotherapy treatments.

On August 27, 1999, a WCB adjudicator telephoned the doctor's office and was advised that the claimant was seen in follow up on August 17, 1999 and that his condition was improving. The claimant was advised to return to modified duties on August 18, 1999. When seen again on August 24, 1999, the chart stated that the claimant had fully recovered and was returning to full duties effective August 30, 1999.

On February 28, 2002, the claimant contacted the Workers Compensation Board (WCB) to advise that the pain in his lower back had never left after he returned to work after his 1995 compensable injury. The claimant said he had had recurring episodes of low back pain both at work and at home. In January 2001, he was diagnosed with a herniated disc. About one month ago, (i.e., January 2002) he was sitting at home when his low back seized up. He attended a doctor and was told that this was all related back to his 1995 claim. The claimant filed insurance forms for work as a result but was told to apply to the WCB.

On April 30, 2002, a WCB case manager telephoned the claimant. After reviewing the 1995 claim, the case manager had been unable to attribute any of the claimant's current symptoms to the accident as the accident appeared to be a minor time loss case as well as a minor injury. The claimant stated that his back problems started shortly after his December 1995 work place accident and that three weeks later he sustained a new injury to his lower back region.

The claimant made reference to his 1999 claim and made the comment that when his physiotherapist was doing some leg raises, and he felt excruciating pain, the therapist felt that he might have a disc problem. The claimant noted that he had been booked for a CT scan which showed disc bulging and disc herniation. The case manager advised the claimant that he would request the 1996 and 1999 claim files and would do a work up to see if he could attribute the claimant's back problems to any of his prior claims.

In a report dated April 19, 2002, a physical medicine and rehabilitation specialist (physiatrist) reported that he saw the claimant on April 4, 2002 with a history of recurrent low back pain after doing any heavy work. The claimant had been experiencing similar episodes of pain every 15 months or so following his 1996 injury. The last episode of an acute exacerbation was on January 27, 2002, and he was off work for a couple of weeks.

A December 10, 2000 CT scan of the lumbar spine showed an L4-5 disc herniation, more so central, causing mild central stenosis. The specialist was of the impression that the claimant had been experiencing recurrent musculoligamentous and disc injury with possibility of previous disc herniation at L4-5 level. The claimant did not have radiculopathy but had restriction of movements of the spine with the possibility of facet joint traumatic arthritis. The specialist outlined treatment recommendations which included lumbar stabilization exercises and restrictions to prevent further exacerbation of his disc injury and radiculopathy.

Following consultation with the WCB's healthcare branch, the claimant was advised by letter on June 6, 2002, that an ongoing cause and effect relationship had not been established and that the WCB was unable to accept any responsibility for his current back problems. The following is a brief excerpt from that letter:

"On May 23, 2002, your file was reviewed by a board medical advisor, who offered the opinion that the L4/5 disc herniation noted on your CT scan would, in his opinion, be coincidental findings, as you appeared to recover quickly and had minimal time loss with your prior workplace accident."

On July 3, 2002, the claimant appealed the above decision to Review Office. On July 4, 2002, the accident employer supported the claimant's position that his current back problems were the result of his work activities and the original injury date of 1995.

In a decision dated September 13, 2002, Review Office noted that the claimant experienced strain-type injuries to his low back and sacroiliac area following the three separate work incidents. The claimant encountered limited time loss from work and had achieved full recovery, according to his treating practitioners.

Review Office could find no neurological findings and no clinical signs of any disc involvement after review of any of the physical examinations. Review Office found that the evidence did not support a cause and effect relationship between the claimant's current problems and any of the prior claims for injuries in 1995, 1996 or 1999. Hence, it was determined that no further responsibility could be accepted for these claims and the claimant was not entitled to benefits.

In a submission of August 8, 2003, a worker advisor, acting on behalf of the claimant, submitted additional medical information for Review Office's consideration along with information supplied by the claimant. In the event that this new information did not allow Review Office to rescind its previous decision, the worker advisor requested the convening of a Medical Review Panel (MRP) given the difference of medical opinion.

The medical information referred to by the worker advisor was a report from the treating physiatrist dated July 29, 2003. To assist him in his opinion, the claimant's representative provided him with: a) the claimant's July 3, 2000 appeal to Review Office; b) the employer's letter dated July 4, 2002 supporting the claimant; c) an additional letter from the claimant received May 6, 2003 explaining his position; d) a memorandum from the Case Manager to the Board's medical advisor dated May 17, 2002; e) the Medical Advisor's reply dated May 23, 2002.

The specialist answered six questions that were posed by the worker advisor. Briefly, the specialist was of the view that the claimant had not completely recovered from the injuries that he sustained in the work related injury of December 1995. He noted that the claimant possibly developed disc tear with herniation at the L4-L5 level with radiculitis. The radiculitis had resolved but the claimant still continued to experience discogenic and mechanical low back pain which he aggravated after doing any repetitive twisting and extension activities of the spine.

The physiatrist noted that his report was prepared on the basis of history, physical examination, review of tests, response to treatment and information provided by the Worker Advisor. He noted that at a later date, if further pertinent medical information became available, a follow up report may be requested which might or might not change the opinion rendered in the report.

On August 29, 2003, the Review Office determined that no change would be made to its previous decision of September 13, 2002. Review Office preferred to place more weight on the medical reports that were received closer to the time of the three injuries rather than a report from a doctor that the claimant saw and was examined by in 2002, some seven years post-95 accident.

In the view of Review Office, the findings and opinions provided at that time for each injury suggested that the claimant had experienced strain-type injuries with no evidence of any disc involvement and full recovery was achieved. Review Office said the evidence presented did not support a causal relationship to the three previous injuries and therefore no further responsibility could be accepted for any of the claims.

In correspondence dated September 19, 2003, the claimant and worker advisor were notified by primary adjudication that a MRP would not be convened under Section 67(4) of The Workers Compensation Act (the Act). On October 6, 2003, the worker advisor appealed this decision to Review Office stating that all six answers by the physiatrist (in his report of July 28, 2003) were contrary to the WCB medical advisor's opinion of May 23, 2002.

In decision dated November 7, 2003, the Review Office determined that a MRP would not be convened in accordance with Section 67(4) of the Act. Review Office stated, in part, that the opinions provided by the physiatrist were speculative and were not based on the specific facts of the case. The physiatrist was not the treating physician following any of the injuries in 1995, 1996 or 1999. There was no evidence of a disc injury, disc tear or herniation at the time of any of the work accidents or shortly thereafter. In summary, Review Office believed that the requirements of section 67(1) had not been met. This decision was also confirmed by Review Office in a letter to the worker advisor dated December 17, 2003.

On January 14, 2004, the worker advisor appealed Review Office's decisions and an oral hearing was arranged.

The oral hearing took place on March 25, 2004. In the course of that hearing, the claimant's representative took issue with the suggestion that claimant quickly returned to his pre injury duties after his second injury in 1996.

"Perhaps Review Office did not realize that following the first two accidents Mr. Greentree never returned to his usual pre-accident work. He returned to a different position that was less physically demanding." (Transcript, p. 7)

The claimant emphasized both the legitimacy of his injuries and his sincere efforts, with the assistance of his employer, to remain in the work place "I just want you guys to realize that this is, you know, something that happened to me. I'm working with my work to try and get through. And its just to be believed to be honest with you." (Transcript, p. 16)

The claimant's representative also indicated that she was seeking a determination as to whether the claimant's absence from work between January 28 and February 12, 2002 was related to a recurrence of the back injuries he experienced in 1995, 1996 or 1999. (Transcript, pp. 18 and 32) In his oral evidence, the claimant indicated that the January 2002 injury occurred at home as he was eating breakfast. (Transcript, pp. 23, 24)

Following the hearing and after discussion of the case, the Appeal Panel requested additional information from the claimant's treating physician. A report from the physician was received dated May 10, 2004 and was forwarded to the interested parties for comment. On May 31, 2004 the panel met to render its decisions with respect to the issues under appeal.

Reasons

In making its decision, the panel reviewed the written and oral record of this proceeding including the medical evidence presented. The reasons that follow will be divided into two sections relating to the specific issues before the panel.

Whether or not the worker's ongoing back difficulties are related to the work injuries of August 5, 1999, January 9, 1996 or December 17, 1995.

The claimant relies upon the opinions expressed by the physiatrist in his April 2002 and July 2003 reports. In particular, emphasis is placed upon the finding of possible disc tear with herniation at the L4-L5 level which the physiatrist believed was related to the claimant's work related injury in December of 1995.

However, the panel would note that there are no physical findings from the medical reports around the time of the injury which would support the conclusions drawn by the physiatrist. The problems identified by the physiatrist are in a different region of the back than the injuries which took place in 1995, 1996 and 1999. None of the medical reports of the physicians who treated the original injuries reveal any signs of tenderness in the L4/L5 region. Nor do these reports reveal any physical findings that one would associate with a disc injury, disc tear or herniation at the time of any of the work accidents or thereafter.

In short, the findings and opinions provided at the time of each injury would suggest the claimant had experienced a strain-type injury with no evidence of disc involvement and with the expectation of a full recovery. In all three cases, the claimant returned to work after a relatively short absence.

Given this reality, the panel cannot find a relationship between the injuries suffered in 1995, 1996 or 1999 and the current diagnosis. In the Panel's view, on a balance of probabilities, there is not a correlation between the workplace injuries suffered in 1995, 1996 and 1999 and the claimant's ongoing back difficulties.

With specific regard to the claimant's absence from work in late January and early February, 2002, the panel is unable, for the reasons stated above, to find a relationship between his injuries in the workplace in 1995, 1996 or 1999 and the injury suffered by the claimant at his home in January 2002 which caused his absence from work. Without this nexus, the panel is unable to find that injuries suffered at home are work place related or compensable.

The panel would note that its conclusions in this regard should not be taken as a negative finding in terms of the credibility of the claimant or as a negative comment on his sincere efforts in concert with his employer to maintain a relationship with the workplace. The panel has no doubt that the claimant has had and continues to have ongoing back difficulties. The panel is also confident that the claimant along with his employer are making every effort to maintain his relationship with the workplace. However, the panel is unable to relate the claimant's ongoing difficulties to an injury from the workplace.

As a result, the Panel concludes that the worker's ongoing back difficulties are not related to the work injuries of August 5, 1999, January 9, 1996 or December 17, 1995.

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of The Workers Compensation Act

Section 67(4) of the Act provides that:

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) of the Act defines an opinion as "a full statement of the facts and reasons supporting a medical conclusion."

Read together, subsections 67(4) and (1) make it mandatory to refer a matter to a medical review panel in circumstances where there is a difference in opinion between the claimant's physician and a medical officer of the board. A necessary precondition for that referral is that the opinion of the claimant's physician must satisfy the requirement of being a full statement of the facts and reasons supporting a medical conclusion. It is unlikely that there can be a full statement of the facts in situations where the physician has not been in receipt of all medical documentation on file.

The claimant's representative argues that there is a difference in opinion based upon the conclusions of the physiatrist in his letters of April, 2002 and more particularly, July 2003, when compared to the opinion of the Board medical advisor of May 2002. In short, the physiatrist found a correlation between the disc herniation and the workplace injuries while the Board Medical Officer considered that the disc lesion could be coincidental given the claimant's quick recovery.

However, the panel would observe that, as noted at page 21 of the transcript, the physiatrist was not in receipt of any of the copies of the attending physician's reports from the earlier injuries. This fact is confirmed on the last page of the physiatrist's letter of July, 2003 in which he identifies the material upon which his opinion was based and concludes that, "if further pertinent medical information became available, a follow up report may be requested which may or may not change the opinion rendered in the report."

As can be seen by the preceding discussion in terms of the relationship between the disc herniation and the workplace injuries of 1995, 1996 and 1999, the treating physicians' reports are an important piece of the information puzzle in this hearing. While there is a difference of viewpoints, the difference is not based upon a complete understanding of the relevant medical information on the file.

Given the absence of this critical piece of information, the views provided by the physiatrist cannot be considered to be "a full statement of the facts and reasons supporting a medical conclusion" within the meaning of subsections 67(4) and (1) of the Act. There is not a full opinion within the meaning of the Act. As a result, there is not a difference of opinion that would trigger the obligation to refer this matter to a medical review panel.

For these reasons, it is the panel's view that a MRP should not be convened pursuant to subsection 67(4) of the Act.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 14th day of July, 2004