Decision #54/99 - Type: Workers Compensation
An Appeal Panel review was held on March 19, 1999, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on March 19, 1999.
Whether a Medical Review Panel should be convened pursuant to Section 67(4) or 67(3) of the Workers Compensation Act; and
Should a Medical Review Panel be convened, whether the claimant is entitled to benefits while awaiting the results of the Medical Review Panel.
That a Medical Review Panel not be convened pursuant to Section 67(4) or 67(3) of the Workers Compensation Act.
On May 8, 1997, the claimant filed a claim for right wrist tendinitis which she related to the repetitive nature of her employment as a medical records clerk. The claimant advised a Workers Compensation Board (WCB) adjudicator that she did not sustain a specific accident to account for the onset of her right wrist difficulties and had been experienced right wrist symptoms since approximately 1993. The claimant also advised the adjudicator that in the past several weeks she was experiencing numbness in her left wrist.
Initial medical reports revealed that the claimant was diagnosed with right wrist de Quervain's tendonitis by a sports medicine specialist. The claimant attended physiotherapy and was referred to a neurologist. Based on laboratory investigations which were done on May 23, 1997, the neurologist reported, "very borderline evidence of mild median nerve dysfunction in the carpal tunnels bilaterally."
In a progress report dated June 15, 1997, the attending physician noted an additional diagnosis of possible left wrist carpal tunnel syndrome (CTS).
On July 15, 1997, a WCB medical advisor reviewed the case at the request of primary adjudication. The medical advisor confirmed that the diagnosis was de Quervain's tenosynovitis and that the tendonitis, not the CTS, was the cause of the claimant's disability.
In a report from the treating hand specialist dated August 19, 1997, the specialist stated the claimant was assessed regarding her right carpal tunnel syndrome and tenosynovitis of the right 1st extensor compartment. The specialist suggested that the claimant undergo carpal tunnel release as splinting and physiotherapy were not helping. The specialist further stated that if, at the time of her carpal tunnel surgery, her 1st extensor compartment has not improved, consideration would be given to release of this as well.
On October 27, 1997, the WCB authorized surgery pertaining to the first extensor compartment given that the claim was accepted for this pathology as being caused by the claimant's workplace activities. The claimant subsequently underwent both the release of the right carpal tunnel and release of the right first extensor compartment on December 30, 1997.
Following physiotherapy treatments the claimant was considered fit to return to modified duties in May 1998, and was to avoid repetitive movements of the right wrist. On June 15, 1998, the treating hand specialist reported that the claimant had returned to work at four hours a day but was experiencing aching in her hand. The specialist stated that he advised the claimant not to increase her work hours over four hours per day and that she would benefit from arthroscopic examination of her wrist to rule out an underlying scapholunate ligament tear.
On July 3, 1998, a WCB medical advisor wrote to the attending specialist indicating that the WCB would not accept financial responsibility for the above procedure. In part, the medical advisor stated, "....As per my letter of October 27, 1997 where I indicated we would accept release of the first extensor compartment for de Quervain's but not the CTS, I have no reason to change the WCB's position regarding this most recent proposed surgery, that is that the question of a scapholunate tear has not been brought up previously through your several examinations of this claimant but of greater importance is the fact that no compensable injury likely to produce this clinical condition has been identified in our record."
On August 11, 1998, the claimant was assessed by a WCB medical advisor regarding present status, current work capabilities and the need for any further surgical intervention. The medical advisor concluded from his examination findings that the claimant still had ongoing evidence of a mild right de Quervain's tendonitis but in addition there was also some evidence of an intercarpal ligament problem. It was noted the claimant's compensable injury was related to the de Quervain's tendonitis and the carpal ligament problem only started recently. Therefore, the medical advisor did not believe it was related to the compensable injury. Regarding functional capabilities, the medical advisor felt the claimant could gradually increase her work hours up to eight hours per day, eventually increasing same to full duties.
In a decision letter dated August 27, 1998, primary adjudication advised the claimant of the details regarding her graduated return to work schedule. The claimant was also advised that her WCB benefits would be paid to September 25, 1998, inclusive and final. On September 10, 1998, the claimant the appealed this decision to the Review Office.
In a report dated September 21, 1998, the treating hand specialist stated the claimant was still experiencing wrist pain with increasing activities. As a result, the specialist stated the claimant wished to proceed with the arthroscopic examination of the wrist to rule out any internal pathology. While awaiting for a surgical date, the claimant would undergo an MRI of the wrist prior to her surgery to see if it could rule out any pathology.
On October 2, 1998, the Review Office made the following determinations following review of all file documentation:
- that, on a balance of probabilities, the claimant's job activities and/or some other work related accident had not contributed significantly to the cause of right wrist problems diagnosed as carpal tunnel syndrome, and scapholunate tear; and
that benefits were not payable under the Act for the consequences of these diagnoses/injuries; and
that the claimant was not entitled to further benefits after September 25, 1998, due to the effects of any work-related accident.
On November 9, 1998, an advocate, acting on behalf of the claimant, requested that a Medical Review Panel (MRP) be convened pursuant to Section 67(3) or 67(4) of the Workers Compensation Act. In addition, the advocate requested that the claimant receive benefits pending the outcome of the MRP pursuant to Board Order No. 48/88, page 1, paragraph "C". The advocate identified eight issues in dispute which he believed were sufficient grounds for the convening of a MRP.
In a letter by Review Office dated November 27, 1998, the advocate's request for a MRP was denied. The Review Office did not consider there was reason to request the opinion of a medical panel under sections 67(3) or 67(4) of the Act, as there was no difference of medical opinion in respect of this particular matter, supported by a full statement of the facts and reasons.
With respect to interim wage loss benefits being paid to the claimant while the panel is being convened, Review Office believed that current legislation did not allow for benefits to be authorized when information had not yet established the injury was one which was caused by accident arising out of and in the course of the employment.
At the advocate's request, the Review Office decision of November 27, 1998, was reconsidered by a different Review Officer on December 11, 1998. This Review Officer confirmed that a MRP would not be convened pursuant to Section 67(3) and Section 67(4) of the Workers Compensation Act; that the claimant would not be paid wage loss benefits beyond September 25, 1998; and that the earlier Review Office decisions of October 2, 1998, and November 27, 1998 were confirmed.
Briefly, the Review Officer quoted Section 67(3) of the Act and stated that this legislation was not available to an advocate. As well, the Review Office did not believe that a difference of medical opinion existed and that a statement of facts and reasons supporting the medical conclusion had not been submitted, therefore there was no support under section 67(4) of the Act for the convening of a MRP.
The advocate for the claimant subsequently appealed the Review Office's decision and a non-oral file review was held on March 19, 1999.
The issues in this appeal are whether a Medical Review Panel (MRP) should be convened pursuant to subsection 67(4) or 67(3) of the Workers Compensation Act (the Act) and should a MRP be convened, whether the claimant is entitled to benefits while awaiting the results of the MRP.
The relevant subsections of the Act are subsection 67(1), (3), and (4).
Subsection 67(1) states:
- In this section,
"opinion" means a full statement of facts and reasons supporting a medical conclusion:
"panel" means a medical review panel.
Subsection 67(3) states:
- Where in any claim or application by a worker for compensation a medical matter arises in which the board desires a further opinion, the board may refer the matter to a panel for its opinion in respect of the matter.
Subsection 67(4) states:
- Where in any claim or application by a worker for compensation the opinion of a 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 of 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.
In this appeal the worker's advocate has raised eight issues in dispute which he believes are sufficient grounds for convening of a MRP under subsections 67(3) or subsection 67(4) of the Act.
With regard to subsection 67(3), with respect we agree with the Review Office that this is a discretionary authority granted to the WCB to obtain clarification or further information and is not available to the claimant.
An application by a claimant or their representative can be made pursuant to subsection 67(4); however the requirements of the Act must be met.
We have reviewed all the evidence on file and conclude that the evidence, on a balance of probabilities, does not establish that there is a difference of medical opinion between the claimant's treating physicians and the WCB medical advisors which would support a conclusion that a MRP should be convened.
We find that for there to be a difference of medical opinion established there has to be a full statement of the facts and reasons supporting a different medical conclusion. We find that the WCB based on the medical evidence has accepted that the job as a medical records clerk resulted in De Quervain's tendonitis and that all the claimant's treatment and time loss related to De Quervain's was compensable. The WCB medical advisors also state that the facts do not support a causal connection between the claimant's work duties and carpal tunnel syndrome or a scapholunate ligament tear.
We find that the claimant's physicians do not make findings of facts that the diagnoses of carpal tunnel syndrome and scapholunate ligament tear are related to the workplace with their reasons and conclusions to support such findings. Therefore we find that there is no difference of medical opinion established that satisfies the requirements of subsections
67(1) and 67(4) of the Act. In light of our findings on the first issue, the second issue does not need to be addressed. Therefore the appeal is denied on both issues.
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 8th day of April, 1999