The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on January 12, 1999, at the request of an advocate, acting on behalf of the claimant.

Issue

Whether a Medical Review Panel should be convened under Section 67(4).

Decision

That a Medical Review Panel should not be convened under Section 67(4).

Background

This case was previously the subject of an Appeal Panel hearing on June 10, 1996, at the request of the claimant. A complete background concerning the details of this case can be found in Decision No. 105/96 dated June 17, 1996, and will not be repeated it its entirety at this time.

Briefly, the claimant sustained a compensable lower back injury on January 15, 1997, while lifting a transmission onto a work bench. The initial diagnosis was described by a chiropractor as being an L3 subluxation.

On February 24, 1988, the claimant was assessed by a WCB orthopaedic consultant who indicated that there was no evidence of a lumbar disc protrusion and that the claimant may benefit from a reconditioning program. In March 1988, a CT scan revealed an overt disc herniation at L5-S1 on the left side.

On October 26, 1988, the WCB's orthopaedic consultant again assessed the claimant and stated that he had improved considerably as a result of performing back exercises and that there was no evidence of degenerative changes on routine x-rays or the CT scan.

In a decision dated November 4, 1988, the Review Office confirmed primary adjudication's decision that the claimant had recovered from the effects of his compensable injury and was fit to resume employment. This decision was formally appealed by legal counsel on December 11, 1995, which led to the June 10, 1996, Appeal Panel hearing. On June 17, 1996, the Appeal Panel confirmed that the claimant had recovered from the effects of the compensable injury and stated in part, the following:

"Since November 1988, there has been in our view little in the way of practitioner evidence supporting the position that the claimant had continued to have a condition in his back supporting non recovery from the accident injury. We do not believe the evidence establishes that the L5-S1 disc as identified by way of the CT scan was caused by the accident or contributed to the claimant's wage loss subsequent to November 18, 1988. We are further of the view that any reduction in earnings...".

By way of correspondence dated May 30, 1998, the claimant's advocate requested a Medical Review Panel (MRP) based on Sections 67(3) and 67(4) of the Workers Compensation Act (the Act) and Policy No. 42.10.70.20. The advocate contended that certain medical reports on file were at variance with the WCB's orthopaedic consultant's exam of October 26, 1988. The advocate was further of the view that "Policy no. 42.10.70.20, permits pre-1992 claims the convening of a Medical Review Panel on a difference of a medical matter even after the Appeal Commission has made a ruling."

On June 19, 1998, an adjudication supervisor determined that an MRP was not warranted under Section 67(3) or Section 67(4) of the Act. The supervisor took into consideration the medical reports referred to by the advocate and provided the following commentary:

• the report of January 29, 1996, did not provide a specific opinion which would warrant the convening of a MRP.
• the report of February 15, 1996, did not satisfy the definition of opinion as defined in Section 67(1) of the Act. The physician did not provide a full statement of the facts along with the reasons supporting his medical conclusion.
• the rheumatologist stated in his report of March 3, 1997, that it was possible the claimant's work accident may have enhanced or accelerated the condition. He did not state the claimant's ongoing difficulties were related to the accident of 1988.
• the chiropractic report of May 8, 1997, was not considered relevant as it was from a chiropractic discipline and as such did not meet the definition of opinion as defined in Section 67(1).

In a further submission dated June 19, 1998, the advocate provided additional medical information consisting of an x-ray report, dated May 12, 1998, and a report from a general practitioner dated June 3, 1998. On July 6, 1998, the adjudication supervisor determined that the physician's report did not satisfy the requirements of Section 67(1) of the Act.

On September 4, 1998, the advocate submitted another report from the general practitioner dated August 19, 1998. The advocate contended that this report was in contrast to the opinion of the WCB orthopaedic consultant and therefore an MRP should be convened to address the medical matters of the claim pursuant to section 67(4) and WCB policy 42.10.70.20.

After consideration of the medical evidence, the adjudication supervisor wrote to the advocate on September 22, 1998, confirming there was no basis to convene an MRP under Section 67(4) of the Act.

The case was later considered by the Review Office on October 30, 1998, and it confirmed that a MRP would not be convened. The Review Office believed that the "differing" medical opinions in this case did not include a full statement of facts and reasons supporting a medical conclusion and the case did not have sufficient credibility to warrant referral to a medical panel under section 67(4) of the Act. The Review Office stated that the issue of causation was predominantly an adjudication issue which had not relied on medical opinion or conclusions to determine the claimant's non-entitlement to benefits under the Act.

On November 18, 1998, the advocate appealed the Review Office's decision and a non-oral file review was conducted.

Reasons

The claimant's advocate contends an MRP should be convened pursuant to Section 67(4) of the Act on the basis that the opinion of the medical officer of the WCB in respect of a medical matter differs from the opinion in respect of that matter with the physician selected by the worker, and that such opinion is expressed in a certificate in writing by the physician. The advocate's written argument, submitted to this Panel, states in part as follows: "This letter and attachments will serve as my submission for the non-oral file review, January 12th, for Mr.[the claimant]." One of the above noted attachments referenced an enclosed report from the current treating physician, which in the advocate's view contrasted a 1988 opinion prepared by a WCB orthopedic consultant. We note that the WCB consultant examined the claimant on two separate occasions in 1988 and prepared individual examination reports. The advocate does not specify which one of these two reports contrasts that of the current attending physician.

The first examination report prepared by the orthopedic consultant is dated February 24th, 1988. At this time, he described the claimant's symptoms as consisting of pain in the left low back commencing just lateral to the sacroiliac area and extending upwards to the level of the 4th lumbar spinous process. The pain then extended down the outer aspect of the left lower limb to just above the ankle. "Examination of the back showed a normal posture when standing. There was tenderness when standing over the posterior half of the iliac crest and the left sacroiliac joint and the immediately adjacent upper buttock. There was no tenderness over the rest of the buttock and there was no tenderness in either thigh or over the course of either sciatic nerve in the buttock or thigh. Neurological examination of the lower limbs showed no sensory or reflex changes. Straight leg raising on the right was to 80 degrees and painless, on the left to 60 degrees reproducing his pain. X-rays taken on February 10, 1987 have been reviewed and show five lumbar vertebrae. The hip joints, the pelvis and the lumbar spine are in normal alignment and there is no evidence of any burning abnormality to be detected on the AP view. In the lateral view, there is some narrowing of the lumbar sacral disc without reactive changes, which suggests this may be congenital in origin. The films that were taken in 1983 have been compared to with the films of 1987 and show no significant change. There is no evidence of any radiological abnormality of significance. It seems most likely that his pain is due to the musculoligamentous back strain. There is no evidence suggesting he had a lumbar disc protrusion. This man may well benefit from a reconditioning program. Also advised is a CAT scan to make quite sure there is no disc protrusion or disc disease causing his symptoms." (emphasis ours)

The second examination took place on October 26th, 1988. Prior to this event, however, results of the claimant's CT scan were received by the WCB. According to the radiologist's findings of March 22nd, 1988, "I believe there is overt disc herniation at the L5-S1 on the left." In addition, there was a mild bulging disc at L4-5 which in the radiologist's view should be insignificant. We note with interest the comment made by the WCB's orthopaedic consultant after his review of the CT Scan report. "He [the claimant] had a CT Scan performed which was equivocal." This statement certainly leads us to conclude that the test results are open to speculation and to more than one interpretation.

According to the WCB orthopedic consultant's October 26th, 1988, notes:

"Examination of the back showed a normal posture with slight tenderness over the upper part of the left sacroiliac joint extending along the posterior part of the iliac crest about 2 inches from the sacroiliac joint. Movements of the spine were full with the exception of forward flexion, the fingertips reached to the lower third of the tibia with a normal rounding of the lumbar spine but no muscle spasm. There was discomfort on the left side of the low back extending up the lateral aspect of the low back to just short of the left costal margin on lateral flexion to the right and rotation to the left, when he stated he had a pulling sensation as though the back was stiff. Neurological examination of the lower limbs was negative. Movements of the left hip were full and painless. Movements of the right hip were full but full flexion of the right hip and rotation of the flexed right hip caused pain on the left side of the low back. Straight leg raising was bilaterally to 90 degrees, on the right causing pain in the lateral aspect of the left low back. This man's symptoms have improved considerably as a result of performing back exercises. These symptoms would appear to be primary (sic) due to residual stiffness. There is no evidence of degenerative changes on routine x-rays or on the CT Scan. This man has sold his business and is now working in Real Estate but I think that if he wished to return to his business in Automatic Transmissions he will probably be able to manage adequately. It is understood that initially there would be a transient increase in back pain which would probably subside as his back became less stiff and his general muscular condition improved." (emphasis ours)

X-rays taken of the claimant's cervical and lumbar spine on May 12th, 1998, revealed normal lumbar lordosis and moderate narrowing of the L5-S1 disc level. The radiologist noted, "Sclerosis is seen involving the apophyseal joint at C5-C6 [and] degenerative change at the L5-S1 disc level with mild bilateral sacroiliitis."

On June 3rd, 1998, the attending physician wrote to the claimant's insurance company and we note in particular certain impressively direct and decisive comments contained in that letter.

"Mr.[the claimant] has had long-standing problems with degenerative arthritis involving the cervical and thoracal lumbar spines. This has resulted in chronic pain and significant functional deficits involving the neck and lower back. In addition to degenerative osteoarthritic changes he also has psoriatic spondyloarthropathy with chronic bilateral sacroiliitis. He has been attending physiotherapy since September 12, 1997 with, unfortunately, little improvement in pain and functional status. I am enclosing recent x-rays of his cervical and lumbar spine as well as a copy of a recent letter sent to Canada Life."(emphasis ours)

The claimant's advocate places a great deal of reliance to support his argument on a report, dated August 19th, 1998, which he personally requested and received from the claimant's attending physician. The report states, in part, as follows:

"I would like to state at the outset that my first contact with the patient with respect to his back problems was on August 23, 1995. I subsequently saw him on September 26, 1995, December 19, 1995 and February 2, 1996 with respect to these complaints (photocopies of office notes enclosed). I did not see him again until August 12, 1997 when he presented at my office requesting completion of Disability Insurance forms relating to an exacerbation of his back and neck symptoms following a fall in his garage in July of 1997. The patient has chosen to attend a chiropractor for management of his back problems and I have had little or no direct involvement in the treatment of his back complaints. With specific response to the questions posed in your letter of July 24, 1998: As far as I am aware, the current diagnosis is that of degenerative osteoarthritis involving the cervical and thoraco lumbar spine, degenerative narrowing of the L5-S1 disc and mild bilateral sacroiliitis of undetermined cause. The findings on x-ray and clinical examination of the lumbosacral spine would certainly be consistent with a disc protrusion injury in the past. The remainder of his symptoms referable to the neck, upper back, thoracic spine and sacroiliac joints would probably not be directly related to this injury. As far as prognosis is concerned, I suspect that the degenerative arthritic changes present in his cervical and thoracal lumbar spine will deteriorate as time goes on although he may be able to obtain some help from participation in a regular exercise program and occasional physiotherapy treatments." (emphasis ours)

After thoroughly reviewing the foregoing reports of both the WCB orthopedic consultant and the claimant's attending physician, we find that there is absolutely no foundation for requesting an MRP pursuant to section 67(4) of the Act. We are at a loss to understand how the advocate can possibly suggest that the claimant's present diagnosis of degenerative osteoarthritis is in any way related to the compensable injury and how this diagnosis is in contrast with the WCB medical officer's opinion.

We further conclude that the claimant's advocate has filed a frivolous appeal. Accordingly, the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 21st day of January, 1999