The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 13, 2005, at the request of legal counsel, acting on the worker's behalf. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits and/or coverage for medical treatment beyond March 20, 2003; and

Whether or not a Medical Review Panel should be convened.

Decision

The worker is not entitled to wage loss benefits and/or coverage for medical treatment beyond March 20, 2003; and

That a Medical Review Panel should not be convened.

Decision: Unanimous

Background

During his employment activities as a parts handler on December 10, 1997, the worker reported injuries to his right hip, left back and knee. The initial medical report indicated that the worker hit his left knee and hip and wrenched his back and neck from the December 10, 1997 accident. The diagnosis rendered was a contusion to the right hip. A chiropractor also assessed the worker and his diagnosis was a sprain/strain type injury. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid to the worker.

Ongoing medical reports were obtained from the worker's treating physician, orthopaedic specialist and treating chiropractor. The diagnoses rendered included chronic right SI joint pain, chronic back and hip pain and bursitis in the right hip.

In October 1999, a WCB medical advisor and psychological advisor interviewed the worker. On November 12, 1999, it was concluded that the worker did not meet the diagnostic criteria for chronic pain syndrome (CPS) as his disability did not affect proportionately his occupational, social and recreational areas of functioning.

On November 30, 1999, Review Office determined that the worker was entitled to further benefits. It believed that the weight of evidence supported that his ongoing right hip and sacroiliac joint complaints were related to the compensable injury.

Between February 2000 and November 2002, two orthopaedic specialists and a physical medicine and rehabilitation specialist (a physiatrist) examined the worker. A WCB medical advisor, chiropractic consultant and an orthopaedic consultant also assessed his medical status. The worker underwent various medical investigations, which included x-rays and MRI and underwent physiotherapy treatments and cortisone injections.

On July 25, 2002, a WCB adjudicator spoke with the worker. The worker indicated that he sustained a fracture to his left foot at work on July 18, 2002 when he was picking oil caps from the pump when his hip gave out and his left foot slipped and he fell into a piece of steel.

In a report dated September 16, 2002, the treating physician indicated that the worker sustained a fracture of the left fifth metatarsal while at work on July 18, 2002 and was placed in a cast for 2.5 weeks. By September 5, 2002 complete healing had not taken place and the worker was fitted with a below knee cast and crutches for another four weeks. The WCB accepted responsibility for the secondary accident involving his left foot.

In a progress report dated November 25, 2002 the treating physician noted that the worker had fallen in October 2002 and complained of pain in his left ankle with weight bearing. Treatment consisted of tensor and crutches.

On January 27, 2003, following comparison of the worker's MRI findings from 2002 and 2003, the treating orthopaedic specialist found nothing to explain the worker's ongoing symptomatology.

In a memo of March 13, 2003, a WCB case manager documented that she discussed the case with a WCB orthopaedic consultant as to whether there was a cause and effect relationship between the compensable work injury and the worker's ongoing problems. The WCB orthopaedic consultant responded that there was not. The consultant was of the view that the worker's current problems were not WCB related.

In a decision dated March 13, 2003, the WCB denied further responsibility for the claim and advised the worker that wage loss benefits would be paid to March 20, 2003 inclusive and final. It was the WCB's position that an ongoing cause and effect relationship did not exist between the worker's compensable injury and his current problems. It was felt that the worker's present lower back problems were related to a pre-existing condition.

In a progress report dated March 21, 2003, the treating physician diagnosed the worker with chronic hip/pelvis pain.

Review Office considered the case on June 20, 2003 based on an appeal submission by the worker dated May 20, 2003. Review Office confirmed that the worker was not entitled to wage loss benefits or coverage for medical treatment after March 20, 2003. Review Office noted that the file evidence suggested that the worker suffered a soft tissue injury involving the right hip at the time of the workplace event on December 10, 1997 and that numerous diagnostic investigations failed to show a more significant injury. Review Office concluded that there was no definitive diagnosis to explain the worker's ongoing symptomatology and that there were minimal physical findings on examination. On a balance of probabilities, Review Office determined that the worker had essentially recovered from the effects of his December 10, 1997 work injury.

On March 31, 2003, the treating orthopaedic surgeon reported that the worker sustained a fifth metatarsal neck fracture at work in November 2002 and by March 18, 2003 progressive healing had taken place. The worker also described another fracture more distally around the head of the fifth metatarsal but this could not be detected on x-ray. He stated that the worker continued to have other pain problems around the right pelvis region which had been followed by another orthopaedic specialist.

In a report to the WCB's Review Office dated December 12, 2003, the worker's treating chiropractor stated, in part, that the worker was suffering from a chronic mechanical unstable right SI joint and that the condition had not changed over the last number of years. It was aggravated by too much activity. He stated that the chronic pain that the worker endured had caused a reflex muscle inhibition that in turn had created a weakening of the surrounding pelvic musculature and that this weakness seemed to be more pronounced with the passage of time. The chiropractor was not aware of any evidence that supported the WCB's position that the worker had recovered from his compensable injury.

In a decision dated December 12, 2003, Review Office determined that the new medical information did not alter its earlier decision of June 20, 2003.

On August 25, 2004, the treating physiatrist reported that the worker continued to suffer from a soft tissue pain syndrome. He noted that the worker has had little relief with treatment. The physiatrist stated that he discussed possible treatment options but the worker had no way to pay for the tray fees or for the prescriptions for the injectable materials. Exercises were recommended for the low back and gluteal muscles.

On October 5, 2004, a worker advisor, acting on the worker's behalf, appealed Review Office's decisions of June 20 and December 12, 2003. The worker advisor contended that the worker continued to suffer from the effects of his compensable injury beyond March 20, 2003 based on his ongoing symptomatology and a diagnosis of myofascial pain syndrome. In support of her position, the worker advisor referred to a medical opinion by the worker's physiatrist dated September 22, 2004. In the event that Review Office did not change its previous decisions, a Medical Review Panel (MRP) was requested under subsection 67(4) of The Workers Compensation Act (the Act) based on the difference of medical opinion between the WCB's orthopaedic specialist and the worker's treating physiatrist.

In an October 21, 2004 decision, Review Office referred to the opinions expressed by the treating physiatrist on August 25 and September 22, 2004 and that made on September 12, 2000. Review Office concluded that no new evidence was provided that would alter its previous decisions of June 20 and December 12, 2003. With respect to the request for an MRP, Review Office referred the case back to primary adjudication to render a decision on this issue.

On November 12, 2004, primary adjudication denied the request for an MRP. It stated that the treating physiatrist did not provide a consistent opinion and observations as to the cause of the worker's reported physical symptoms, from September 2000 to the present. "Thus, as it is not clear as to the causation of the noted symptomology due to this diffuse opinion, there is no clear comparison that can be drawn to the opinion provided by WCB Medical Advisor Dr. [name]." On November 17, 2004, the worker advisor appealed this decision to Review Office.

On December 15, 2004, Review Office asked the treating physiatrist to clarify the statements that he made on September 12, 2000 and September 22, 2004 regarding the worker's condition. A response from the physiatrist to Review Office is on file dated January 25, 2005.

In a decision letter dated February 3, 2005, Review Office denied the request for an MRP citing that a difference of medical opinion did not exist on the file. On March 1, 2005, the worker advisor appealed Review Office's decisions and an oral hearing was arranged.

Reasons

The Panel was asked to determine two issues that have arisen on this worker's file.

The first issue was whether the worker is entitled to wage loss benefits and/or coverage for medical treatment beyond March 20, 2003. For the appeal to succeed on this issue, the Panel must find that the worker's symptoms after March 20, 2003 are related to his compensable injury of December 10, 1997 and/or the secondary injury of July 18, 2002 and that the worker is suffering a loss of earning capacity as a result. The Panel did not find that a relationship exists.

The second issue the Panel was asked to address was whether an MRP should be convened. For this appeal to be successful the Panel must find a difference of opinion between a WCB medical advisor and the worker's physician on a medical matter affecting compensation. The Panel did not find that a difference of opinion, as contemplated by the Act, exists in this case.

Applicable Legislation and Policy

The worker's claim for wage loss benefits is governed by subsection 39(1) of the Act. This subsection provides that wage loss benefits are payable where the injury results in a loss of earning capacity after the day of the accident. There are several other provisions of the Act, which deal with the calculation of wage loss benefits.

The worker's request for an MRP is governed by Section 67. Of particular application to this case is subsection 67(4) which provides:

67(4) - Reference to panel on request

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.

Evidence and Argument at Hearing

The worker attended the hearing with legal counsel who made a presentation on behalf of the worker. The worker answered questions posed by his legal counsel and the Panel. The worker also called, as a witness, his treating physiatrist who answered questions posed by legal counsel and the Panel.

The physiatrist testified that in his opinion the nature and location of the worker's pain was more consistent with a muscular based pain than pain caused by facet arthropathy. He disagreed that the worker's pain was caused by pre-existing degenerative changes in the worker's lumbar spine but acknowledged that some people with degenerative disc disease or other kinds of degenerative problems tend to demonstrate muscle pain. He agreed with the treating physician that the worker's ongoing condition was related to the worker's workplace injury.

The physiatrist also stated that the worker's level of disability when he saw him in 2000 and in 2003 had not changed. "I believe it was the same and that he would be capable of sedentary to light part-time or full-time work."

Regarding recovery, he advised that any treatment program would be aimed at getting the worker to functional employability and not back to his pre-accident status.

The treating physiatrist discussed possible treatments. When asked about the worker's prognosis if he were to receive treatment, the treating physiatrist responded that it was "poor".

The worker testified regarding his current condition and employment status. He indicated that his condition has not changed. He advised that he has continued to see his treating physician and treating chiropractor who has adjusted his hip/pelvis periodically. He also saw the treating physiatrist.

The worker advised that he is currently employed as the manager of a community store and service centre in a remote community. He commenced this employment on March 28, 2005. He described his duties which included responsibility for hiring and firing staff, ordering of inventory, and other duties related to management of the enterprise. He has given the owners of the business a commitment to stay for 15 years, subject to being able to physically continue working. He explained that he is able to perform his current duties but must take some time off at midday to rest.

The worker advised that he left his previous job in March 2003 because it was too physically demanding. He felt many of the duties were outside his physical ability to perform and that he was working in great pain.

Between March 2003 and March 2005, the worker did not actively seek employment, although he did contact at least one business about light duty work. He indicates that he was unemployable during this period. He said there was no job he could do. He did participate in some volunteer activities.

The legal counsel reviewed the evidence which he submitted establishes on a balance of probabilities that the worker has not recovered from the work injury. In support of this position he referred to the opinions of the treating physician, physiatrist and orthopaedic surgeon.

With respect to the second issue, legal counsel contrasted the difference in opinion between the WCB orthopedic consultant and the treating physiatrist.

Analysis

Issue 1

The Panel found, on a balance of probabilities, that the worker was not entitled to wage loss benefits and/or coverage of medical treatment beyond March 20, 2003. In arriving at this conclusion the Panel places significant weight on the following evidence:

• March 13, 2003 opinion of WCB orthopaedic consultant as recorded by the case manager that the worker's ongoing problems were not related to the compensable injury.
• January 27, 2003 report from a consulting orthopaedic surgeon which states that:

  "MRI of the pelvis …14 January 2003. Both hip joints are normal, musculature is normal, both sacroiliac joints show no degenerative changes or swelling. Therefore the MRI indicates the sacroiliac joints are structurally normal.

  The previous MRI of the lumbosacral spine, September 5, 2002 showed some degenerative wear at L1 and L2/3 however the rest of the spine didn't show any significant problems or wear, therefore there was nothing present that truly explains Mr. [the worker's] ongoing symptomatology. Certainly there was nothing present that would be amenable to any invasive treatment."

• various MRI scans including the scan dated September 5, 2002 which showed some mild degeneration of the L1-L2 and L2-L3 spinal discs and an MRI scan of the worker's pelvis done January 14, 2003 which showed that the hip joints and SI joints were normal.

In reaching this decision, the Panel carefully considered the opinion of the treating physiatrist. Although he has suggested a diagnosis of myofascial pain syndrome, the treating physiatrist commented in his September 12, 2000 report that "If this were the only true diagnosis, I would have expected a greater response from the treatments that have been provided to him." In that report, he comments that "…it appears as though a number of diagnostic entities have been attached to this man's low back problems. None of these have turned out to be entirely accurate, and could only be regarded as speculative diagnoses."

Also in his September 12, 2000 report, the treating physiatrist notes that he "suspects" there are other perpetuators of the worker's condition, many of which are in the non-physical realm. At the hearing the treating physiatrist confirmed that he thought there were a number of factors impacting the worker's condition. He stated that:

"My impression at that time was that Mr.[the worker] was under a lot of stress emotionally because of the circumstance that he was in and, for a significant portion of my appointment with him, Mr.[the worker] would share his anger and disappointment with the handling of his situation, also with respect to his personal life with his family."

At the hearing the treating physiatrist was asked about degenerative problems and muscle pain. He acknowledged that such problems can result in muscle pain and noted that it is often difficult to apportion the extent that pain is caused by degenerative conditions and other causes of muscle pain.

The Panel finds there are various possible diagnoses for the worker's ongoing symptoms but that on a balance of probabilities the ongoing symptoms are not related to the workplace injury. Accordingly the worker is not entitled to further wage loss benefits or medical coverage.

As noted in the background, the worker had a secondary injury on July 18, 2002 which resulted in a fracture to his left foot. Although not advanced as the cause of the worker's loss of earning capacity, the Panel considered whether this injury was contributing to the loss. The Panel finds that the worker has recovered from this injury and is not suffering a loss of earning capacity as result of the injury. In arriving at this decision, the Panel places significant weight on the February 28, 2003 opinion of the WCB orthopaedic consultant that the worker's secondary injury appears to have healed satisfactorily. He also noted there was no need for work restrictions related to this injury.

In considering the worker's entitlement to wage loss benefits, the Panel considered the worker's employment history from 2003 to 2005. The worker advised the Panel that he quit his job in 2003 because he was not medically fit. The worker did not actively search for employment during this time. He stated that he was unemployable and remained unemployed until March 2005 when he was approached to take a position running a store in a remote community.

Regarding the worker's ability to work, the treating physiatrist advised the Panel that in his opinion the worker's medical condition has not changed since 2000. He also advised the Panel that when he saw the worker in 2003, he considered the worker was fit for sedentary to light part-time or full-time work. The worker has demonstrated his employability in his recent position. Given that the worker's medical condition has been stable over the last several years and that he is currently employable, we do not accept the worker's position that he was unemployable prior to March 2005. The Panel finds that the worker's loss of earning capacity was not due to his workplace injury but to his voluntary removal from the workforce in 2003.

Given the above findings, the worker's appeal on the first issue is declined.

ISSUE 2

The Panel finds that a difference in medical opinion as contemplated in the Act does not exist and accordingly an MRP will not be convened. Initially, the request for an MRP was made by the Worker Advisor Office on behalf of the worker. In a letter dated October 5, 2004 the worker advisor noted that the basis for the request was an "…absolute difference of diagnoses being a medical matter and also the differences of opinion on whether there is an ongoing cause effect relationship between the work injury and Mr. [the worker's] ongoing symptomatology."

The worker's advocates have contrasted the opinion of the WCB orthopaedic consultant with the opinion of the worker's treating physiatrist. The treating physiatrist's opinion is contained in two reports dated September 12, 2000 and September 22, 2004. The WCB asked the treating physiatrist for clarification of his reports which was provided in a further report dated January 25, 2005. As well, at the hearing the treating physiatrist commented on his reports.

With respect to the diagnosis of the worker's condition, the Panel does not consider that a difference of opinion on this issue alone, in this case, is sufficient to convene an MRP under subsection 67(4) of the Act. In this case it is not solely the diagnosis which affects entitlement to compensation but the relationship of the diagnosis to the compensable injury.

The Panel notes that the treating physiatrist has not offered an unequivocal diagnosis of the worker's condition. In his September 12, 2000 report the treating physiatrist makes the following comments regarding the diagnosis of myofascial pain syndrome:

"With regards to the possible myofascial pain syndrome diagnosis eluding previous medical practitioners, this may have well been the case. However, it appears as though a number of diagnostic entities have been attached to this man's low back problems. None of them have turned out to be entirely accurate, and could only be regarded as speculative diagnoses. If this were the only true diagnosis, I would have expected a greater response from treatments that have been provided to him. This being the case, I do suspect that there are perpetuators of this syndrome, many of which are in the non-physical realm."

In his September 22, 2004 report, he opines that the worker suffers from myofascial pain syndrome with non-specific mechanical low back pain. At the hearing the treating physiatrist confirmed his opinion that both these diagnoses are still applicable.

With respect to a diagnosis of degenerative disc disease or other kinds of degenerative problems, the treating physiatrist acknowledged at the hearing, that patients with these conditions also demonstrate muscle pain. When asked whether these conditions are in play as possibilities he replied:

"True, they can all be in play to various extents and oftentimes we can't apportion what extent is, for instance, a disc pain versus the muscular component of a person's pain."

On the issue of whether there is a difference of opinion on the cause and effect relationship between the worker's ongoing symptoms and his work injury, the Panel notes the treating physiatrist's comments in his report of September 12, 2000 that :

"With regards to whether or not I feel that his ongoing difficulties relates (sic) specifically to his injury in the workplace dated December 10, 1997, I am unable to specifically, and categorically state that this is the case. As indicated in Dr. [name] report there are a number of factors that are impacting upon his clinical status. I would agree with Dr. [name], that physical ones are not necessarily the greatest problem. His difficulties with back injury that may have arisen in December 1997 may well have largely settled sometime ago."

In his September 22, 2004 report, the treating physiatrist makes the following comments regarding a cause and effect relationship:

"My opinion, based on the history of events provided to me by Mr. [worker], as well as the medical information on file, would indicate that there is a cause and effect relationship with respect to this man's physical complaints, and the compensable accident of December 10, 1997."

In his letter of January 25, 2005, the treating physiatrist confirms the opinions set out in his prior reports and comments:

"Based on the information provided to me long after the alleged incident leads me to believe there is a possible cause and effect between the incident described and the symptoms he claims to have."

The Panel finds that the treating physiatrist comments on the cause and effect relationship are speculative and do not meet the requirements of a medical opinion as set out in the Act. Accordingly, the Panel finds that an MRP should not be convened.

The worker's appeal is declined 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 31st day of August, 2005