The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 19, 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

In January 2003, the worker contacted the call centre at the Workers Compensation Board (WCB) to report difficulties that she was experiencing with her right wrist and fingers due to the repetitive nature of her work activities as a clinical resource nurse. Nerve conduction studies confirmed a diagnosis of mild right CTS and stenosing tenosynovitis of the right thumb.

On February 11, 2003, the WCB advised the worker that her claim for compensation was not acceptable. Following consultation with the WCB's healthcare branch, the WCB determined there was no direct cause and effect relationship between the development of the worker's symptoms and her employment activities.

In a decision dated April 17, 2003, Review Office confirmed that the claim for compensation was not acceptable. Review Office was of the opinion that the worker's employment as a clinical resource nurse was not highly repetitive and did not require high repetition involving full flexion and extension. Review Office noted that the claimant had significant risk factors that predisposed her to develop CTS. According to Review Office, on a balance of probabilities, the worker's right sided CTS and right thumb stenosing tenosynovitis were not work related and thus did not meet the test required by section 4(1) of The Workers Compensation Act (the Act).

On November 7, 2003, a worker advisor, acting on behalf of the worker, made reference to three medical reports on file which the worker believed supported her position that her workplace duties caused her condition. A Medical Review Panel (MRP) was requested in accordance with subsection 67(4) of the Act to resolve the difference in medical opinion.

In a response dated February 12, 2004, a WCB short term claims manager denied the request for an MRP. The manager did not believe there was a difference in medical opinion with respect to the different diagnoses offered for the worker's difficulties, i.e. mild right CTS and stenosing tenosynovitis of the right thumb. The manager further stated, "What is in dispute however, is whether there is a causal relationship between the diagnoses and the worker's employment. The question as it relates to the degree of occupational exposure and its relationship to the development of the conditions diagnosed is an adjudicative matter not a medical issue. Based on the fact that the decision rendered was a legal test under Sections 1(1) and 4(1) of the WC Act and not a medical test, your request for a Medical Review Panel has been denied." On September 22, 2004, a worker advisor appealed this decision to Review Office.

On November 10, 2004, Review Office agreed with the short term claims manager to deny the request for an MRP. Review Office confirmed there was no difference of opinion with respect to the worker's diagnoses. What was in dispute was not a medical matter but rather the degree and frequency of the worker's occupational exposure, which in the opinion of Review Office, was only one of several potential factors that can possibly lead to the development of both diagnosed conditions. Review Office considered that the determination of the matter of the degree of occupational exposure was more properly considered an adjudicative matter and not a medical matter as stipulated under subsection 67(4) of the Act. On November 22, 2004, the worker advisor disagreed with Review Office's decision and a non-oral file review was arranged.

Reasons

We were asked to determine whether an MRP should be convened under subsection 67(4) of the Act. For this appeal to succeed, we must find that the requirements of subsection 67(4) have been met. We were not able to make this finding. We found there was no difference of opinion on a medical matter and accordingly found that an MRP should not be convened.

The central question in this case is whether the comments by the physicians on the worker's job duties can be classified as medical opinions for the purposes of subsection 67(4). In general terms, to the extent that physicians provide comments on the types of movements/actions which can be causative of CTS or stenosing tenosynovitis and the risk factors for these conditions, their comments may be classified as medical opinions. But where the physicians are offering their opinions on the quantity or the extent of such movements/actions performed by the worker in doing her job they are providing evidence but not medical opinions.

There is no disagreement about the diagnosis in this case. The WCB medical advisors and the worker's physician agree that the worker has mild right CTS and stenosing tenosynovitis of the right thumb. Nor is there disagreement on the types of movements/actions which can be causative of the worker's condition. There is, however, disagreement on whether the worker's specific duties caused this condition. We find that this determination is an adjudicative question. While evidence has been provided by WCB medical advisors, the worker and her physician, the determination that must be made is the responsibility of the WCB.

Therefore, we have found there is no difference of opinion on a medical matter affecting compensation and accordingly, an MRP should not be convened under subsection 67(4) of the Act. The appeal is denied.

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 10th day of March, 2005