Decision #19/99 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on January 13, 1999, following receipt of an appeal from an advocate, acting on behalf of the claimant.

Issue

Whether the claimant is entitled to benefits while awaiting the result of the Medical Review Panel convened by the Review Office under Section 67(4) of the WC Act.

Decision

That the claimant is not entitled to benefits while awaiting the result of the Medical Review Panel convened by the Review Office under Section 67(4) of The Workers Compensation Act.

Background

In March 1990, the claimant injured his right shoulder while getting out of his semi truck. The claim was accepted by the Workers Compensation Board (WCB) and the claimant was paid benefits which included claims and rehabilitation benefits and a permanent partial impairment award. By May, 1994, the claimant's benefits ended as it was established he no longer had physical restrictions and that he had recovered from the effects of his compensable shoulder injury.

In 1998, the case was seen by the Review Office at the request of an advocate representing the claimant. On September 18, 1998, the Review Office determined that a Medical Review Panel (MRP) would be convened in accordance with Section 67(4) of the Workers Compensation Act (the Act). On September 29, 1998, the advocate requested the Review Office to consider interim benefits pending the outcome of the MRP and referred to Board Order 48/88 of the Act.

On October 14, 1998, the Review Office denied the advocate's request and stated, "any payment of interim benefits by Review Office, while awaiting the medical panel results, would likely be viewed as exceeding the authority of the Act." The advocate appealed the Review Office's decision and requested consideration by the Appeal Commission.

Reasons

The issue in this appeal is whether the claimant is entitled to interim benefits while awaiting the results of the Medical Review Panel (MRP) convened by the Review Office under subsection 67(4) of The Workers Compensation Act (the Act).

Subsection 67(4) states:

Reference to panel on request

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.

The advocate in this case has raised Board Order No. 48/88 which deals with whether disability benefits should continue while a Medical Review Panel is being convened under subsection 67(3) and 67(4) of the Act. The Board Order outlines the criteria to be used by adjudicators and states in part:

Title: Board Order 48/88 - MEDICAL REVIEW PANELS

Decision

That in cases where an adjudicator determines that a Medical Review Panel should be convened to assist in resolving an issue of a claims disability, the following criteria is to be utilized:

a) Compensation benefits would not be authorized in cases where the claim has never been accepted.

b) Compensation benefits would not be authorized in cases where the clear weight of medical evidence is against the claimant, but the Board is in receipt of a report(s) that outline a difference of medical opinion.

c) Compensation benefits would be authorized in cases that have been accepted as compensable and where there is a balance/tie of medical evidence or where the weight of medical evidence is in favour of a compensable disability.

The advocate in this appeal has requested that Board Order 48/88 be applied and interim benefits awarded while a Medical Review Panel is being convened under subsection 67(4) of the Act.

We note that policy does not speak to interim benefits but rather to the continuation of benefits while the medical issue affecting benefits is being considered. It is our view that this policy is discretionary in nature and was intended to be used only in very narrow circumstances and does not provide for an automatic entitlement simply because an MRP is called.

In reviewing the file we note the following:

a) the claimant has not received benefits from the WCB on this claim since May 4, 1994;

b) there was no activity on the file initiated by the claimant from May 1994 until June 1997;

c) In 1994 when benefits were terminated, the primary cause of the claimant's disability appears to have been the result of back injuries sustained in a non-compensable motor vehicle accident (MVA) in 1991.

It also appears from the file that the WCB at the time of the discontinuation of benefits interpreted the weight of medical evidence against ongoing eligibility. In this regard we note a report of June 2, 1997 from an attending physician in which he attributes disability to a non-compensable MVA in 1991.

Therefore it appears that the WCB, at the time of discontinuation of benefits, interpreted the clear weight of the evidence against the claim and at this time we see no reason to intervene with this finding or to exercise our discretion to grant benefits as sought by the claimant. Therefore the claimant's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 26th day of January, 1999

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