The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 17, 1999, at the request of legal counsel acting on behalf of the claimant. The Panel discussed this appeal on November 17, 1999.

Issue

Whether or not a Medical Review Panel should be convened.

Decision

A Medical Review Panel should not be convened.

Background

A complete background concerning the details of this case can be found in Appeal Panel Decision No. 58/98 dated April 17, 1998, and will not be repeated in its entirety at this time.

In brief, the claimant sustained a compensable compound fracture of his left tibia/fibula on March 6, 1991, when his van backed over his left leg. In June 1992, the claimant was awarded a 4.8% permanent partial impairment award for his left ankle and foot which was increased to 8.2% in October 1995. File documentation also showed that in 1998, the Appeal Panel confirmed the decisions rendered by primary adjudication and the Review Office that the claimant's left hip and back symptoms were unrelated to the March 6, 1991 compensable injury.

In late January 1999, a solicitor requested that a Medical Review Panel (MRP) be convened to determine whether the claimant's back complaints were related to the compensable accident of March 6, 1991. With regard to this request, the solicitor referred to the supporting medical opinions included in the Appeal Panel's 1998 decision and hearing transcript.

On February 2, 1999, an adjudication supervisor determined that the weight of medical evidence did not support a difference of opinion and that a MRP would not be convened. The adjudication supervisor was of the view that the claimant's back problems were related to the degenerative condition of his spine. This was confirmed by two external orthopaedic specialists in 1995.

On May 4, 1999, the solicitor submitted a report from an orthopaedic specialist dated March 16, 1999 and from a chiropractor dated April 28, 1999. The solicitor was of the view that these written "certificates" differed from the opinion of a medical officer of the WCB and that a MRP was in order. The report from the orthopaedic specialist outlined his medical opinion that, on a balance of probabilities, the claimant's left sacroilitis was caused directly as a result of the physiotherapy which the claimant underwent in April 1991 due to the fact that he sustained an open fracture of the left tibia.

In a decision dated May 18, 1999, the adjudication supervisor determined the following:

• that the chiropractic report would not be considered as it came from a chiropractor and not a physician, as was required by Section 67(4) of the Act;
• the recent orthopaedic specialist's opinion was speculative in nature. Reference was made to the specialist's previous report of October 1995 in which he stated that the claimant's back pain was likely secondary to osteoarthritis or wear and tear changes of the discs and facets of the back. Reference was also made to the Review Office's decision of December 1997 in which they stated that the claimant had experienced back problems for which he received chiropractic treatment prior to the March 1991 accident. The Appeal Panel's 1998 decision was also noted in which the Panel considered the claimant's complaints of pain emanating from the back, sacroiliac joint, left hip and/or buttock was not a result of the March 1991 accident.

On May 21, 1999, the solicitor appealed the above decision to Review Office contending that:

• the supervisor who made the decision to deny an MRP was not qualified to offer a medical opinion; and
• "the medical evidence qualified under Section 67 in that the Board "shall refer the matter to a panel ...." where the opinion of the worker's physician expressed in writing was different from the opinion of the medical officer of the Board."

In a decision dated June 11, 1999, Review Office made reference to the comments expressed by the orthopaedic specialist in his report of October 23, 1995 and October 9, 1997, and which the Appeal Panel made reference to in its 1998 decision:

"...the claimant's pelvis, hips, and sacroiliac joints appeared normal and no soft tissue abnormality was observed. He felt the claimant had no hip pathology, and it was normal. He said the claimant's back pain was likely secondary to osteo-arthritis or wear and tear changes of the discs and facets of the back which were likely not due to the accident."; and

"...this man's left buttock pain is new in onset...".

Review Office indicated that the orthopaedic specialist's report of March 16, 1999, was simply a summary of his previous findings and opinion of October 23, 1995. Review Office therefore concluded that the information provided by the solicitor did not establish a difference of medical opinion and that a MRP would not be convened. In July 1999, the solicitor appealed Review Office's decision and an oral hearing was convened.

Reasons

The issue in this appeal is whether or not a Medical Review Panel (MRP) should be convened.

The relevant subsections of the Workers Compensation Act (the Act) which were in force at the time of the claimant's injury in 1991 are 67(1) and 67(4).

Subsection 67(1) states:

Definitions
67(1) In this section,

"opinion" means a full statement of the facts and reasons supporting a medical conclusion;

"panel" means a medical review panel.
S.M. 1989-90,c.47,s.36

Reference to panel on request
67(4) 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 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, to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

A review of the evidence on file and given at the hearing suggests that medical advisors with WCB health care management services have expressed their opinion that the claimant's left sacroiliac pain/discomfort is not related to the compensable event of March 6, 1991.

Under subsection 67(4) of the legislation, in order for a MRP to be convened it must be found that a difference of medical opinion exists between a treating physician and a WCB medical advisor. The legislation under subsection 67(1) requires full disclosure, that is, a full statement of the facts and reasons in support of a medical opinion.

In this case the claimant's representative has argued that two of the claimant's treating physicians, namely his attending physician and a second attending orthopaedic specialist, have expressed opinions which oppose those provided by the WCB medical advisors and that provided by the claimant's first treating orthopaedic specialist. In this regard we would advise that opposing opinions between the claimant's treating physicians would not mandate the convening of an MRP as the difference of medical opinion must be between the treating physician and a medical advisor of the WCB.

We note that the claimant's initial treating orthopaedic surgeon who operated on the claimant's fracture of the left tibia and fibula has provided opinions which in our view oppose opinions provided by the claimant's other treating physicians.

In this regard we note a report of December 5, 1991 where the treating orthopaedic surgeon indicated that the claimant can stop physiotherapy as " they are not doing anything that he could not do at home." He further states: " It is my impression that he can probably do some work with his present minimal disability." Also in a further report dated April 15, 1992 the same treating orthopaedic surgeon indicates in part:

" In addition, he complains of pain in his left sacroiliac joint if he has been standing awhile and he believes that this might be due to the ankle injury and the adjustment for weight bearing which is affecting his back. He has no radicular pain and the pain is localized to the left sacroiliac joint . Examination of his back reveals tenderness on palpation over the left sacroiliac area but no muscle spasm .

Conclusion: I cannot find any serious abnormality with Mr. [the claimant's] back on clinical examination. He may have some symptoms related to muscular attachment in the left sacroiliac region which I think should disappear with time." (emphasis ours)

In support of the argument that there is a difference of medical opinion the claimant's representative has identified a report dated March 4, 1994 of the claimant's attending physician and subsequent reports of a second treating orthopaedic surgeon dated October 23, 1995, October 9, 1997 and March 16, 1999.

We have reviewed the March 4, 1994, Doctor's First Report, of the claimant's attending physician and find that the comments outlined in the report simply list subjective complaints and objective findings and notes the claimant's reported view that these are related to the compensable injury. This, in our view, does not constitute an opinion supported by the full facts and reasons for a medical conclusion.

We also note that the objective findings listed in this report are remarkably similar to those stated by the claimant's first treating orthopaedic surgeon as noted above, namely:

" Full ROM Back, but some pain in L. sacro-iliac region on lat. Flex to R. SLR = 90 bil. Hips OK. 0 short. or atrophy. 0 loc. Tenderness."

We have also reviewed the reports of the second treating orthopaedic consultant dated respectively October 23, 1995, October 9, 1997 and March 16, 1999 as raised in argument by the claimant's advocate to support a difference in medical opinion.

In his assessment of October 23, 1995 the surgeon states:

" I think his pain is coming from the back and is likely mechanical low back pain secondary due to osteoarthritis or wear and tear, changes of the disc and facets of the back. These are likely not due to the motor vehicle accident but were certainly aggravated by the treatment for the motor vehicle accident which was physiotherapy. Not all of this man's left buttock pain is secondary due to the motor vehicle accident but certainly a part of it since it was aggravated by the treatment for the injury suffered by the motor vehicle accident." (emphasis ours).

The comments attributing an aggravation of the claimant's injury to his physiotherapy treatment are repeated and enlarged upon more definitively by the orthopaedic consultant in his subsequent report of March 16, 1999 and are the basis of the advocate's argument that there is a difference of medical opinion.

With due respect, we find that the evidence in the file does not support that the claimant suffered an injury from his physiotherapy treatment. As such we find that the orthopaedic surgeon in offering his medical opinion is relying on a misapprehension as to the facts of this case. In reaching this conclusion we noted the following:

• it appears that the second treating orthopaedic surgeon did not see the claimant until approximately four years after the accident and it is apparent from the reports that the specialist relies for history, on self report provided by the claimant;
• no other physician, other healthcare provider or Workers Compensation Board staff involved in the claim reference any reported causal connection between the claimant's symptoms and his physiotherapy treatment;
• a physiotherapy discharge report date stamped March 2, 1994 notes that the claimant was provided with physiotherapy treatment from July 8, 1991 until December 2, 1991. In her initial assessment of July 8, 1991 the therapist notes " that Mr. [the claimant] reported that he was able to walk without crutches short distances. After walking longer than ten minutes he was experiencing some discomfort in his left ankle and hip. He used crutches for walking long distances." On August 7, 1991 she notes that the claimant complained of persisting low back pain. Under "assessment" at the end of her report of the same date, the therapist notes the presence of pain left sacroiliac joint amongst other assessed features noted.
• We note there are no indications of any difficulties experienced by the claimant arising out of or in the course of treatment reported by the physiotherapist with respect to an aggravation of the claimant's injury;
• in a report dated December 5, 1991 the claimant's initial attending orthopaedic surgeon indicates that the claimant "can stop physiotherapy as they are not doing anything which he could not do at home" and "it is my impression that he can probably do some work with his present minimal disability."
• WCB memos to file dated July 25, 1991, August 15, 1991 and October 29, 1991 and December 9, 1991 respectively record conversations with the claimant and note his progress and improving condition while being treated with physiotherapy and record his subsequent discharge from physiotherapy. These memos do not record any concerns or complaints by the claimant with respect to the physiotherapy treatment;
• at the hearing the claimant was asked questions by the panel in order to clarify exactly how the physiotherapy treatment aggravated his injury. The claimant was unable to reference any particular incident or treatment modality which had resulted in a physical problem. Rather, he indicates, " it must have been the overall treatment that caused it, but at the time thinking that it would do me good."

We find that the preponderance of the evidence suggests that there was no aggravation of the claimant's condition which arose out of his physiotherapy treatment for the compensable injury of March 6, 1991. Accordingly we cannot place any weight on the opinions, with respect to an aggravation of the claimant's injury being related to the physiotherapy treatment, expressed by the second treating orthopaedic specialist which were in our view built on that factual premise. We therefore conclude that this opinion was not one which was a statement of the full facts and reasons as required under subsection 67(1) of the Act.

As such, there is no basis for the convening of a MRP based on a difference of medical opinion between the claimant's treating physicians and the WCB medical advisors. Therefore the claimant's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
M. Niekamp, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of December, 1999