Decision #129/04 - Type: Workers Compensation
Preamble
A non-oral file review was held on August 18, 2004, at the request of a worker advisor, acting on behalf of the claimant.Issue
Whether or not a Medical Review Panel must be convened pursuant to subsection 67(4) of The Workers Compensation Act, to respond to questions regarding the etiology of the worker's tendonitis and carpal tunnel syndrome.Decision
That a Medical Review Panel should not be convened pursuant to subsection 67(4) of The Workers Compensation Act, to respond to questions regarding the etiology of the worker's tendonitis and carpal tunnel syndrome.Decision: Unanimous
Background
In March 2002, the claimant filed a claim with the Workers Compensation Board (WCB) for a frostbite condition to both of his hands. The claimant worked as a driller's helper/truck driver at the time of accident and his work duties involved drilling wells which exposed his hands to cold water.Medical information received from the attending physician confirmed the diagnosis of frostbite to both hands which included damage to the skin and underlying tissues. Treatment included physiotherapy sessions.
On April 17, 2002, the treating physician changed the diagnosis to read as follows: "Secondary to frostbite, wrist arthralgia". Objective complaints were noted as creps with movement of the wrists.
On May 13, 2002, primary adjudication determined that the claimant's current problems with his wrists were, on a balance of probabilities, unrelated to his frostbite condition and that his frostbite condition had resolved. The claimant was advised that his wage loss benefits would be paid up to and including May 9, 2002. This decision was confirmed by Review Office on June 7, 2002.
On June 16, 2003, a worker advisor, acting on behalf of the claimant, provided Review Office with a number of medical reports dating between November 6, 2002 and May 13, 2003. The worker advisor noted that these reports showed the claimant's wrist ganglion, carpal tunnel and tendonitis conditions were the result of the repetitive nature of his drilling assistant duties. Based on this evidence, the worker advisor felt that the WCB should reinstate the claimant's wage loss benefits and accept responsibility for the costs associated with the proposed carpal tunnel release and ganglion removal. In the event that the WCB was unable to reverse its previous decision, a Medical Review Panel (MRP) was requested.
On July 17, 2003, Review Office responded to the worker advisor's submission stating that the additional diagnoses of wrist ganglion, carpal tunnel and tendonitis had no relationship to the March 2002 frostbite condition and that a new claim should be filed to consider these additional conditions.
On July 21, 2003, the claimant filed a new claim with the WCB for the development of a ganglion and carpal tunnel syndrome which he attributed to 3 weeks of employment in March 2002.
In a memo dated July 31, 2003, a WCB medical advisor stated that the development of the small ganglion cyst was not, on balance of probabilities, related to the duties performed by the claimant in early 2002 and that ganglion cysts are common and most often spontaneous.
Following a review of the information on file which included comments from the WCB's healthcare branch, the WCB advised the claimant on July 31, 2003, that his claim for compensation was denied based on the following rationale:
- after comparing nerve conduction study (NCS) results dated August 6, 2002 and March 21, 2003, the WCB felt that the claimant's CTS condition developed at a time when he was not working and therefore the CTS condition was not work-related; and
- the ganglion condition was clinically identified on February 15, 2003 in a MRI examination. On a balance of probabilities, the WCB concluded that the ganglion condition was not related to the job duties that he performed for 3 weeks in March 2002.
Prior to considering the request for a MRP, primary adjudication obtained a complete description of the claimant's job duties as well as the approximate hours involved with each specific job. This information along with NCS results were passed on to the rheumatologist for review and comment. His response to primary adjudication is dated January 18, 2004.
On February 10, 2004, primary adjudication determined that the requirements of section 67(4) of The Workers Compensation Act (the Act) had been met for the convening of a MRP with respect to the ganglion diagnosis but that it had not been met with respect to the CTS condition. Primary adjudication commented that the decision to deny the claim in relation to the CTS diagnosis was an adjudicative decision and as such, it did not meet the requirements of section 67(4) of the Act. In reference to the diagnosis of tendonitis, primary adjudication stated that it had been unable to relate the claimant's diagnosed tendonitis condition to his work duties as "…there was no mention on the claimant's accident report at that time of symptoms in relation to tendonitis; the employer's report indicating they were only aware of frostbite; the physician's reports and comments that all physical findings prior to the April 16, 2002 exam were only in relation to frostbite, Rehabilitation & Compensation Services is unable to relate the claimant's diagnosed tendonitis to his work duties." Primary adjudication further stated, "Please note as the decision to deny benefits in relation to the tendonitis was an adjudicative decision, this would not meet the requirements for convening of a MRP."
On April 28, 2004, the worker advisor contended that the treating rheumatologist (report of January 18, 2004) explained the causal connection between the claimant's workplace duties and the ganglion, tendonitis and CTS conditions and that his opinion did meet the definition of opinion. "As far as the indication that the decision relative to the carpal tunnel syndrome is an adjudicative decision, we would point out that all board decisions are adjudicative. This does not preclude an MRP if the elements under 67(4) have been satisfied." Given that a MRP was already going to be convened on the ganglion, the worker advisor felt it would make sense to obtain the input from the MRP on the carpal tunnel and tendonitis conditions.
In a response to the worker advisor's submission, Review Office stated on June 25, 2004 "I am unable to find where a WCB medical advisor has expressed an opinion concerning the etiology of the worker's tendonitis and carpal tunnel syndrome. Accordingly, I find that the requirements of Section 67(4) of the Act have not been met for the two conditions in question…" On July 5, 2004, the worker advisor appealed Review Office's decision 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 Act that a medical review panel (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 advances the argument through his worker advisor that a MRP must be convened in order to respond to questions regarding the etiology of the worker's tendonitis and carpal tunnel syndrome.
After a thorough review of the evidence, we concur with the conclusion reached by Review Office that nowhere on file can there be found where a WCB medical advisor has expressed an opinion concerning the etiology of the worker's tendonitis and carpal tunnel syndrome. In other words, there is no difference of opinion in respect of a medical matter. Accordingly, the requirements of section 67(4) of the Act have not been satisfied.
In addition, the patient history upon which the treating rheumatologist relies in formulating his opinion is inaccurate with respect to the following: the nature and length of job duties; the reporting of the initial symptoms of carpal tunnel and tendonitis was not until 2003 which was a year following the compensable injury of frostbite to both hands; there was no reference to the intermediate examination findings of a WCB medical advisor recorded on June 5, 2002; reports by the treating neurologist and nerve conduction studies.
As well, the worker advisor contends that the July 31, 2003 memorandum recorded by a WCB medical advisor constitutes a differing opinion with the claimant's treating physician. We note, however, that the topic of discussion in the memorandum relates to the development of a ganglion, which condition is not the subject of these proceedings.
We find that the requirements of section 67(4) of the Act have not been met and therefore, there is no entitlement to the convening of a MRP. Accordingly, the claimant's appeal is hereby dismissed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of September, 2004