Decision #174/05 - Type: Workers Compensation
Preamble
A non-oral file review was held on October 6, 2005, at the request of a worker advisor, acting on behalf of the worker.Issue
Whether or not a Medical Review Panel should be convened under subsection 67(4) of The Workers Compensation Act.Decision
That a Medical Review Panel should not be convened under subsection 67(4) of The Workers Compensation Act.Decision: Unanimous
Background
On January 11, 2000, the worker injured his lower back and right hip during the course of his employment as a truck driver while cleaning ice and snow from the entrance of his truck bay. The initial diagnosis rendered by the treating chiropractor was a lumbosacral sprain/strain type injury.On July 4, 2000, a CT scan radiological report indicated Grade I spondylolisthesis at the L5-S1 level secondary to bilateral L5 spondylolysis. There was no evidence of disc herniation, central spinal stenosis or nerve root compression.
The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker up to March 21, 2000 when it was determined that he was fit to return to his pre-accident work duties.
In January 2001, the worker contacted the WCB to indicate that he was having the same problems with his back as he did in February 2000. Following review of new medical information, the worker's benefits were reinstated.
On March 31, 2003, the WCB determined that the worker was capable of returning to work in a light duty position for a period of eight weeks and then he would be capable of returning to full regular duties. Based on this decision, wage loss benefits were paid to the worker up to June 17, 2003 inclusive. On June 10, 2003, the worker appealed this decision as he was of the view that his medical condition and restrictions had not changed since January 11, 2000 and he was unable to return to work.
On June 27, 2003, Review Office confirmed that the worker had essentially recovered from the effects of his compensable injury and that he had no loss of earning capacity beyond June 17, 2003. Review Office's position was that the worker had suffered a temporary aggravation of his pre-existing mechanical pain at the time of the work event on January 11, 2000.
On May 28, 2004, a worker advisor asked Review Office to reconsider its decision of June 27, 2003 based on a report from the worker's physical medicine and rehabilitation consultant (physiatrist) dated May 16, 2004. The worker advisor outlined the physiatrist's opinion that a combination of the worker's pre-existing pathology and the workplace injury was responsible for his ongoing dysfunction and that his pre-existing condition had been permanently enhanced. The worker advisor believed that the worker was entitled to full compensation benefits in accordance with WCB policy 44.10.20.10 given the additional medical evidence.
In a July 3, 2004 decision, Review Office determined that there would be no change to its decision of June 27, 2003. Review Office remained of the view that the worker's loss of earning capacity after June 17, 2003 was no longer related to the effects of his January 11, 2000 compensable injury.
Review Office considered the case again on October 14, 2004 in light of a November 6, 2002 report from a physiatrist who provided the worker with prolotherapy treatment. Following review of the new report, Review Office found that the information did not provide any evidence to support a permanent enhancement of the worker's pre-existing condition nor was there evidence to support a relationship between the worker's complaints and the January 11, 2000 work injury.
On December 6, 2004, the worker advisor contended that a difference of medical opinion existed between the WCB's physiatry consultant's examination findings of September 12, 2002 and the opinion expressed by the treating physiatrist on May 16, 2004, thereby constituting the need to convene a Medical Review Panel (MRP).
In a decision dated January 11, 2005, a WCB unit manager denied the request for an MRP. The unit manager felt that the treating physiatrist was unable to explain the cause of the worker's pain and therefore there was no differing medical 'opinion'.
On January 18, 2005, the worker advisor appealed the unit manager's decision to Review Office. The worker advisor argued that the treating physiatrist provided a contrary medical opinion and had supported it fully with a detailed rationale. The worker advisor noted that the WCB acknowledged that there was a difference of medical opinion in regard to the role of the pre-existing condition and that this difference of medical opinion was affecting the worker's entitlement.
In a decision dated February 17, 2005, Review Office determined that an MRP would not be convened in accordance with subsection 67(4) of The Workers Compensation Act (the Act). Review Office outlined its position that the opinion provided by the physiatrist in his report of May 16, 2004 was "speculative at best" and therefore the requirement of subsection 67(4) of the Act had not been satisfied. On June 23, 2005, the worker advisor appealed Review Office's decision and a non-oral file review was arranged.
Reasons
The issue before the Panel was whether an MRP should be convened under subsection 67(4) of the Act. The relevant provisions of the Act are subsection 67(4) and 67(1). Subsection 67(4) provides:67(4) - Reference to panel on requestSubsection 67(1) defines opinion as "a full statement of the facts and reasons supporting a medical conclusion."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.
For subsection 67(4) to apply there must be a difference of opinion between the opinions of a treating physician and a WCB medical officer on a medical matter affecting entitlement to compensation. Subsection 67(1) imposes the requirement that the opinion be a "full statement of the facts and reasons supporting a medical conclusion." This requirement is met, when the facts are spelled out and are consistent in both opinions. The requirement for a full statement of facts insures that the differences between the views of the treating physician and WCB medical officer are based upon a common set of facts. Where the views are based upon different facts, it cannot be said that subsection 67(1) is satisfied.
It is important to note that an MRP is part of the evidence gathering process undertaken by the WCB and/or the Appeal Commission, to assist the appropriate adjudicator(s) in understanding complex or conflicting medical information on a file. It works where there is a common view of the facts and conflicting views as to diagnosis or to the cause of medical conditions. The MRP can be rendered meaningless where its foundation, the factual scenarios leading to the injuries, is not accurate.
Analysis
The worker's representative argued that an MRP should be convened in accordance with subsection 67(4) of the Act. In support of this request the worker has relied upon the medical report of the worker's physiatrist dated May 16, 2004. The physiatrist comments that:
"The most probable cause of [worker's] ongoing symtomatology is due to a combination of his pre-existing condition and his workplace injury…
"I agree with the WCB consultants that [worker] has mechanical back pain. I also agree that he had degenerative changes in his lower back prior to the onset of his loss of work injury January 2000. I don't agree that the present situation is present only on the basis of pre-existing problems." (italics added)
The worker's representative contrasts the above report with the report of the WCB's consultant dealing with the call-in examination of September 12, 2002 and concludes there is a difference of opinion.
The Panel finds that the medical report referenced by the worker's representative does not satisfy the definition of an opinion noted above as the medical report is not based upon a full statement of facts. The treating physiatrist specifically notes the following areas in which he does not possess the relevant facts:
- "I have no copy of an MRI scan"
- "In order to prove that the pre-existing condition was a major issue prior to the injury of January 2000, a record of his work, physician visits and treatment records of the chiropractor would have to be reviewed. I have not had these records available."
- "Without corroboration from pre-accident sources (family physician, chiropractor, employers) regarding the state of [worker's] back situation, the ability to make a specific determination regarding the amount of injury specific physical and psychological impact is limited."
The Panel finds that the requirements of subsection 67(4) have not been met and that an MRP should not be convened. The appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of November, 2005