Decision #06/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 7, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not responsibility can be accepted for the worker's current right hip difficulties; and

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

Decision

That responsibility cannot be accepted for the worker's current right hip difficulties; and

A Medical Review Panel should not be convened under subsection 67(4) of The Workers Compensation Act.

Decision: Unanimous

Background

On June 14, 2000, the worker was involved in a work related accident whereby he was standing in a confined space and a forklift bumped his right hip. The worker missed two days from work as a result of the accident and then returned to regular duties. The diagnosis rendered was a soft tissue injury to the right hip.

In September 2003, the worker advised the WCB that he was having further difficulties with his right hip and that it felt like something snapped in his hip. The worker advised that he did a lot of walking in his job, i.e. up and down stairs 15 to 20 times per day, 56 stairs to a flight.

X-rays of the right hip dated August 22, 2003 revealed minimal osteoarthritis at the right hip joint.

In a decision dated September 22, 2003, the WCB determined that a relationship had not been shown to exist between the worker's present difficulties and his compensable injury. It was felt that the worker's ongoing problems were likely related to a pre-existing condition, namely osteoarthritis. According to the WCB, the condition was not caused or enhanced by the compensable injury and the compensable injury was no longer contributing to his ongoing problems. This decision was later confirmed in a letter by the WCB dated April 14, 2004.

On April 17, 2004, a worker advisor, acting on behalf of the worker, requested reconsideration of the April 14, 2004 decision to deny acceptance of the claim for a recurrent disability. The worker advisor made reference to the following three medical opinions on file: a report from the worker's treating physician dated April 24, 2001, a report from an orthopaedic specialist dated March 22, 2004 and an opinion expressed by a WCB medical advisor on September 18, 2003:

April 24, 2001 report by the treating physician:

"[worker's name] presented in our office on the above date with complaints of ongoing pain in his right hip. I suspect that due to an injury which [the worker] sustained on the job last May, he has developed osteoarthritis of that hip. The cold has aggravated the problem and I believe he would benefit from working in a somewhat warmer working environment. I would appreciate it if arrangements could be made in regard to this matter."

March 22, 2004 report from an orthopaedic specialist:

"It is now almost 4 years since this gentleman had his accident at work. I still feel it is possible that he had a chondral fracture as I mention in my previous report. I am not prepared to rule out that he has some enhancement of osteoarthritis as a consequence of his accident."

September 18, 2003 opinion by a WCB medical advisor:

"The original c.i. [compensable injury] of June 14, 2000 appeared to be soft tissue injury of the rt. Hip and no t.l. [time loss] was involved. The clmts [claimant's] current symptoms appeared while working, no injury occurred and appear to be secondary to osteoarthritis of the rt. Hip - unrelated to the c.i. and unrelated to his work duties."

The worker advisor felt that the reports by the two treating physicians supported an ongoing cause/effect relationship between the worker's right hip difficulties and the June 14, 2000 workplace injury. In the event that the WCB did not change the April 14, 2004 decision, a Medical Review Panel (MRP) was requested under subsection 67(4) of The Workers Compensation Act (the Act).

On July 27, 2004, Review Office determined that no responsibility could be accepted for the worker's current right hip difficulties. Review Office noted in its decision that extensive discussions took place with a WCB orthopaedic consultant who read the actual file and had called in various x-rays and personally read these x-rays. It was clear to the consultant that the worker had pre-existing osteoarthritis of both hips with the right hip being worse than the left. Review Office said the consultant was unable to attribute the osteoarthritic condition to the effects of the accident of June 2000. Review Office was of the opinion that there was no evidence of a chondral fracture as speculated by the orthopaedic specialist. The initial x-rays and subsequent x-rays did not support his conclusion, based on the opinion provided by the WCB orthopaedic consultant. As the issue concerning an MRP had not been addressed by primary adjudication, Review Office referred the case back to primary adjudication to make a ruling on this issue.

In a letter to the worker advisor dated August 17, 2004, a WCB Manager denied the request to convene an MRP. It was the manager's decision that the worker's treating physicians did not provide a full statement of facts and reasons supporting their medical conclusions. On August 25, 2004, the worker advisor appealed this decision to Review Office.

On September 3, 2004, Review Office upheld the decision to deny the request for an MRP. Review Office did not believe that the requirements of subsections 67(1) and 67(4) of the Act had been met. It was Review Office's opinion that the reports of the worker's orthopaedic specialist did not constitute a full statement of the facts and reasons supporting a medical conclusion.

On September 17, 2004, the worker advisor appealed Review Office's decisions of July 27, 2004 and September 3, 2004 and an oral hearing was arranged.

Reasons

We were asked to address two issues. The first issue was whether responsibility can be accepted for the worker's current hip difficulties. For the appeal to succeed on this issue we must find that the current hip difficulties are related to the worker's June 2000 workplace injury. Having considered all evidence on the file, we were not able to find a relationship between the current hip difficulties and the June 2000 workplace injury. We note that the worker did not present argument on whether a new workplace accident occurred in August 2003.

The second issue was whether an MRP should be convened under subsection 67(4) of the Act. For the appeal to succeed on this issue we must find there is a difference of medical opinion between the opinion of a WCB medical advisor and a physician selected by the worker. We were not able to find a difference of opinion as defined in the Act and accordingly there is no entitlement to an MRP under the Act.

Evidence and Argument at Hearing

The worker was represented by a worker advisor who made a submission on his behalf. The worker also answered questions posed by his representative and the Panel. The employer was represented by an employer advocate and a staff person. The employer's representative made a submission on the employer's behalf.

The worker provided a detailed description of the June 2000 accident. He advised that he was only off work for a couple days because the employer asked him to return to work to a light duty position. Unfortunately light duties were not available so he returned to his regular duties which he completed with assistance from co-workers. Some time later the worker changed positions at the employer's facility. On August 22, 2003, while performing these new duties, which involved significant walking and stair climbing, the worker felt severe pain in his right hip. The worker returned to work about three days later but could not continue. After missing work for approximately five weeks the worker quit and found other employment.

The worker considered the August 2003 incident to be a continuation of the symptoms he suffered from the June 2000 workplace injury. The worker denied having any hip problems before the June 2000 workplace injury.

With respect to his current status the worker advised that his hip continues to be painful. He has been told by his physician that a hip replacement may become necessary. He advised that he is employed as a van driver and that his hip bothers him while he is performing these duties.

The worker's advocate stated that the worker's June 2000 workplace injury did not resolve and in fact, became progressively worse. She referred to medical information in support of this position, specifically the June 14, 2004 report from the worker's orthopedic specialist.

The worker's representative also addressed the request for an MRP. She considers that the worker's orthopedic specialist reports satisfy the requirements of the Act and that an MRP should be convened.

The employer's representative made a submission on behalf of the employer. The representative reviewed the medical information on file and concluded that it established that the worker suffers from osteoarthritis in both hips which is not work related. She noted that the evidence does not demonstrate any enhancement of the pre-existing condition.

With respect to whether the worker had problems with his right hip prior to the June 2000 work injury, she advised that the employer's records show that the worker complained of a right hip problem in 1999 and that his physician suggested light duties.

Regarding the request for an MRP, the employer representative commented that the orthopedic surgeon's report is speculative and does not meet the definition of opinion set out in the Act.

We found the submissions made by the worker and employer representatives to be very helpful in our consideration of the issues.

Analysis

Issue # 1

We have considered the evidence presented at the hearing and the information on the claim file. We have found, on a balance of probabilities, that the worker's current right hip condition is not related to the June 2000 work injury and that responsibility should not be accepted for this condition.

We accept the evidence that the worker has bilateral osteoarthritis. This is confirmed by the diagnostic tests including x-rays and CT scan. The February 24, 2004 CT scan notes mild degenerative changes at both SI joints and that "Changes at the right hip are consistent with osteoarthritis only." We also rely upon the fact that the osteoarthritis is present in both hips and that this suggests that the condition is not likely related to a traumatic injury.

We also accept the evidence that the worker had a prior problem with his right hip in 1999 as reported by the employer.

We attach significant weight to the opinion of the WCB orthopedic consultant who reviewed the file and the actual x-rays. His opinion contained in a memo dated July 20, 2004 was that the worker suffers from bilateral degenerative osteoarthritis greater in the right hip than left hip.

We also note in a report dated March 22, 2004 that the worker's treating orthopedic specialist comments that "it is possible that his symptoms are due to osteoarthritis of the right hip. Certainly patients with bilateral disease typically have more pain on one side than the other…"

Issue # 2

Subsection 67(4) of the Act provides that a worker is entitled to have an MRP convened where there is a difference of opinion between a WCB medical advisor and a physician selected by the worker on a medical matter affecting entitlement to compensation. The worker has relied upon the opinion of the treating orthopedic specialist.

We have examined the reports provided by the treating orthopedic specialist and find that the reports do not meet the requirements of an opinion as set out in subsection 67(1) of the Act. The treating orthopedic surgeon comments that the worker's pre-existing osteoarthritis has been enhanced but does not offer a full statement of facts and reasons supporting this comment. We also note the orthopedic surgeon refers to the possibility of a chondral fracture and then seems to refute this possibility. As well we find the report to be somewhat speculative and does not support a medical conclusion as required by the Act.

The worker's appeal is dismissed on both issues.

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 6th day of January, 2005

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