The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on July 20, 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 under Section 67(4) of The Workers Compensation Act (the Act).

Decision

That a Medical Review Panel should not be convened under Section 67(4) of The Workers Compensation Act (the Act).

Decision: Unanimous

Background

On December 19, 2000, the claimant was walking into his work building to obtain a receipt for a customer when he slipped on ice and twisted his left knee. The claimant knew right away that his knee was out because he felt his knee cap off to the right. He immediately popped it back into place and then was sent home.

As a result of the accident, the claimant was diagnosed with a dislocation of his left patella and a meniscal tear. On May 9, 2001, the claimant underwent surgery to his left knee and the post-operative diagnosis was chondromalacia patella.

In a follow-up report of May 29, 2001, the orthopaedic surgeon noted that the claimant was doing very well to this point. There was just a little mild patellar clicking and the knee was settling down well. His impression was "…a traumatic chondromalacia of the patellar secondary to patellar dislocation." By June 1, 2001, the claimant returned to his regular duties.

While at home on August 4, 2002, the claimant was getting up from a seated position when he felt his knee "pop". He had to stop work as a result and felt the incident was related to his compensable injury.

On September 10, 2002, the WCB advised the claimant that it was the opinion of a WCB medical advisor that he had sufficiently recovered from the effects of his December 19, 2000 work injury and that his left knee injury of August 24, 2002 was not related to the effects of that accident. Rather, it was related to the significant pre-existing degenerative conditions present in his left knee.

On January 10, 2003, the case was considered by Review Office based on an appeal submission from a worker advisor, acting on behalf of the claimant. Prior to considering the appeal, Review Office obtained an opinion from a WCB orthopaedic consultant who stated, in part, the following in a hand written, undated memo:

1. "The stage II and Stage III findings of chrondromalacia patella are not the direct result of the one CI occurring Dec. 19/00. They are indicative of longstanding patello-femoral problems which has resulted in 3 recurrent patellar dislocations, the first dating back to his teens. He appears to have patellar instability with perhaps mal tracking of the patellar leading to the development of chondromalacia patella and at least 3 dislocation episodes."

Review Office upheld the WCB's decisions that the claimant had recovered from the effects of his December 19, 2000 injury and that his left knee injury of August 4, 2002 which occurred at home was not related to the December 19, 2000 injury. On a balance of probabilities, Review Office felt the claimant would continue to have increasing problems with the knee and would eventually require chondroplasty of the left patella, regardless of the incident occurring December 19, 2001, and that one incident would not have caused the "stage II and III findings of chondromalacia patellar."

With respect to the incident that occurred at home on August 4, 2002, Review Office noted that this injury occurred subsequent to the claimant's recovery from the December 19, 2001 compensable injury. By his own description, the claimant stated he was 100% better and he returned to regular work with no further reported problems. Therefore, Review Office concluded that the injury at home would have no direct result of the compensable injury of December 19, 2001.

On March 14, 2003, the worker advisor requested a Medical Review Panel (MRP) to resolve the difference of opinion between the WCB's orthopaedic consultant and the claimant's treating orthopaedic surgeon (report dated May 29, 2001).

In a response dated March 24, 2003, a sector services manager wrote to the worker advisor stating that the comment made by the treating specialist, i.e. "the impression is for a traumatic chondromalacia of the patella secondary to patellar dislocation" did not necessarily contradict the noted WCB healthcare opinion by the WCB's orthopaedic consultant, especially in light of this worker's history of left knee patellar dislocations. As well, the comment by the treating specialist was not an opinion as outlined in section 67(1) of the Act, in that a full statement of facts and reasons supporting a medical conclusion was not provided to substantiate the treating specialist's comments.

On September 19, 2003, the worker advisor asked the WCB to consider a further report from the claimant's treating orthopaedic specialist dated April 20, 2003. She believed that the report clearly outlined a contradictory opinion to that of the WCB's orthopaedic consultant.

In a response dated October 21, 2003, the sector manager determined that no change would be made to his previous decision denying the request for a MRP. The sector manager stated, "…there is still no clear difference of medical opinion on the worker's left knee condition. There is agreement amongst the involved physicians that there are degenerative changes to this knee, specifically chondromalacia. The type of changes have always been suggestive of a pre-existing condition, rather than a work-related trauma. Dr. [specialist's] latest report does not provide medical evidence to confirm a different diagnosis for the left knee condition."

On October 31, 2003, the worker advisor appealed the above decision to Review Office and later, submitted further evidence to Review Office which consisted of a report from the claimant's family physician dated November 6, 2003.

In a decision dated April 21, 2004, Review Office noted that although the attending physician provided an opinion in writing concerning the claimant's left knee condition, he only provided a statement of the facts as he knew them. The statement of facts provided by the treating orthopaedic specialist was incomplete, reporting that he had no knowledge of any dislocation prior to that which occurred at work in December 2000. Hence, his opinion did not meet the requirements of section 67(1) of the Act and the request for a MRP was denied. On May 7, 2004, the worker advisor appealed Review Office's decision to the Appeal Commission 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 Workers Compensation Act (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 physician and the WCB’s medical advisors and thus the requirements of the above section have been satisfied, which would entitle him to request the convening of an MRP.

We have carefully and thoroughly reviewed all of the evidence on file as well as the argument advanced by the claimant’s Worker Advisor. With all due respect, we find that there is no difference of medical opinion with respect to a medical matter affecting entitlement to compensation.

The claimant’s own treating orthopaedic surgeon acknowledges that the claimant’s initial injury contributed or lead to the second.

These statements indicate that the claimant’s physician is relying on an incomplete statement of facts. As well, all physicians agree that a degenerative knee condition is present. As such, we find that there is no difference in medical opinion.

Inasmuch as we find that the requirements of section 67(4) of the Act have not been met 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 14th day of September, 2004