The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on June 24, 1999, at the request of the claimant and employer.

Issue

Employer's Issue:
Whether wage loss benefits should be paid to the claimant up to and including November 20, 1997; and

Claimant's Issue:
Whether a Medical Review Panel should be convened.

Decision

Employer's Issue:
That wage loss benefits should be paid to the claimant up to and including November 20, 1997; and

Claimant's Issue:
That a Medical Review Panel not be convened.

Background

On September 7, 1997, the claimant felt severe pain in his lower back as a result of lifting a 35 foot ladder during the course of his employment as a firefighter. The diagnosis reported by the attending physician was a lower back strain. A CT of the lumbosacral spine performed on September 10, 1997, revealed no disc herniation, however, there was bilateral facet arthropathy at the L4-L5 and L5-S1 levels.

By November 4, 1997, the claimant was considered capable of performing modified duties, based on the opinion expressed by a medical advisor from the Workers Compensation Board (WCB). Restrictions were outlined for the claimant to avoid lifting greater than 10 pounds as well as repetitive bending and lifting. On November 5, 1997, the employer offered the claimant light duties consistent with the restrictions outlined by the WCB, however, the claimant refused to work until he was cleared to do so by his attending physician. On November 6, 1997, the WCB advised the claimant that he was not entitled to further wage loss benefits as he did not return to work in the light duty capacity.

On November 20, 1997, the claimant was examined by a WCB medical advisor who reported a working diagnosis of mechanical back pain, in conjunction with underlying facet arthropathy/degenerative changes. The medical advisor felt the claimant was fit for modified duties with restrictions of no lifting greater than 15 pounds and to avoid repetitive twisting and bending including sustained forward flexion. The time frame for the restrictions was to be evaluated following completion of a stabilization program and the implementation of medication recommendations. Based on this examination, Claims Services confirmed that the claimant was capable of performing light duties effective November 6, 1997.

On July 13, 1998, the Review Office acknowledged receipt of an appeal submission from the claimant which requested reconsideration of the adjudicator's decision to discontinue payment of wage loss benefits beyond November 5, 1997. On September 11, 1998, the Review Office determined that the claimant should be paid benefits up to and including November 20, 1997, and that there was no further entitlement to benefits after this date.

Review Office based its decision on the examination findings of November 20th, 1998, which were taken in context with the claimant's reported scan findings. Review Office was satisfied that the weight of medical evidence was sufficient to show on a probability that:

• the original work related accident caused injury to the soft tissue in the claimant’s lower back and there were no myofascial features;

• the mechanical back pain was consistent with pre-existing degenerative changes in the lower spine which had not been enhanced by recent injury to bone or discs;

• the subsequent fall at home had caused some local trauma which likely contributed to the degree of persistent symptoms in November 1997.

• there was little risk of further injury or damage to the lower spine resulting from a resumption of light duty employment.

Prior to November 20, 1997, Review Office did not find there was a clear weight of evidence to show that the claimant had recovered from the effects of his work related accident or that he was capable of modified duties. Review Office felt that the effects of the claimant’s work related accident no longer contributed significantly to either his loss of earning capacity or his persistent low back symptoms. On September 15, 1998, the employer appealed the Review Office’s decision and requested a non-oral file review.

In the interim, the claimant requested the convening of a Medical Review Panel (MRP) as he was of the view that “the accident of September 7, 1997, superimposed on the pre-existing pathology continued to leave him disabled from work. On November 20, 1998, primary adjudication denied the request stating that the requirements of Section 67(4) of the Workers Compensation Act (the Act) had not been met.

On March 17, 1999, the Review Office wrote to the claimant acknowledging the attending physician’s comments that the claimant was totally disabled and was “still not fit to do light duties.” In the opinion of Review Office, the claimant’s physician did not report why he felt the claimant was totally disabled and did not document any particular findings to show whether a return to light duties would likely expose the claimant’s lower back to unnecessary risks. The Review Office quoted the following opinion offered by the claimant’s physician:

“In my opinion, in November 1997 and December 1997 (you) were still not fit to do any work, because even light work would aggravate (your) condition and slow down (your) recovery.”

Review Office did not consider that the attending physician had provided a statement of facts and reasons to support a medical conclusion about the claimant’s lower back problems. Furthermore, Review Office found that the opinions provided by the WCB medical advisor had been consistent with the reported objective clinical findings, and these opinions had been supported by the results of a comprehensive examination of his lower back. Review Office concluded that it did not believe there was reason to request the opinion of a medical review panel under the provisions of Section 67(4).

On June 24, 1999, a non-oral file review was held at the Appeal Commission to consider the employer’s appeal as well as the claimant’s appeal regarding whether or not to convene a Medical Review Panel.

Reasons

A WCB medical advisor decided to call the claimant in for an examination in order to update the claimant's status, to address a specific diagnosis and to assess the claimant's work capabilities/modified or graduated re-entry. In his examination notes, the medical advisor recorded the following comments:

"This claimant's history along with present clinical evaluation supports the working diagnosis of mechanical back pain, which presents in conjunction with underlying facet arthropathy/degenerative changes.
At the present time, it is my opinion that this claimant is fit for modified duties, with workplace restrictions of no lifting greater than 15 lbs., avoidance of repetitive twisting and bending, including sustained forward flexion."

The fact that the claimant was only fit for modified duties and had restrictions at this time clearly indicates to us that he had not fully recovered from the effects of his compensable injury. Accordingly, we find that the claimant should be paid wage loss benefits up to and including November 20th, 1997.

In regards to the second issue, section 67(4) of the Workers Compensation Act (the Act) deals with an injured worker's request for a Medical Review Panel.

"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."

It should be noted as well that an opinion means a full statement of the facts and reasons supporting a medical conclusion.

We find that the requirements of the above quoted section have not been satisfied. As such, there is no basis on which to refer the matter to a Medical Review Panel.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of August, 1999