The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on November 24, 2004, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not a Medical Review Panel (MRP) should be convened.

Decision

That a Medical Review Panel (MRP) should be convened.

Background

On June 2, 1998, the worker reported that she developed problems with both arms, wrists, fingers and hands due to the nature of her employment activities which included daily computer usage. On September 16, 1998, the Workers Compensation Board (WCB) accepted the claim on the basis of a carpal tunnel syndrome (CTS) diagnosis and wage loss benefits were issued to the worker.

The worker subsequently underwent right carpal tunnel release surgery on April 21, 1999. In a report by a WCB physical medicine and rehabilitation specialist (physiatrist) dated September 8, 1999, it was noted that the surgery did not improve the worker’s symptomatology but that electrophysiologic evidence revealed improvement in the median nerve conduction. The physiatrist commented that there did not appear to be any myofascial pain syndrome activity present. Based on his examination findings, the consultant concluded that the worker had essentially recovered from the effects of her compensable injury and he did not feel that her complaints of arm and shoulder pain were related to the compensable injury (memo to file dated November 5, 1999).

In October 1999, the worker was assessed by a WCB psychological advisor who noted that the worker presented with pain as her primary complaint. On January 7, 2000, it was concluded that the worker did not meet the diagnostic criteria for chronic pain syndrome but that she displayed problems identified with an adjustment disorder with depressed mood. The WCB referred the worker to a registered psychologist for treatment of these conditions.

In a report to the WCB dated August 9, 2000, the treating physiatrist diagnosed the worker with myofascial pain syndrome in her right shoulder girdle muscles. He further commented that the worker’s current condition probably had no relationship with the previous diagnosed and treated CTS condition.

In August 2000, the worker commenced a graduated return to work program as the WCB determined that she was capable of returning to work.

In a report to the WCB dated September 28, 2000, a hand specialist reported that the worker was still having tingling over the distribution of the median nerve, although the more recent nerve conduction studies had shown that the median nerve of the carpal tunnel had regained its normal values. The worker had significant pain in her upper limb and shoulder girdle, primarily myofascial in nature. Testing for thoracic outlet syndrome was strongly positive.

In January 2002, the worker contacted the WCB to advise that she was having ongoing problems with her upper back and hands and that she had been on short term disability benefits between March and December 2001. Based on this information, primary adjudication asked a WCB medical advisor to provide his opinion to the file as to the ongoing cause and effect relationship between the worker’s current condition and her compensable injury.

Based on the opinion expressed by a WCB medical advisor on April 2, 2002, the WCB made the determination that the worker’s ongoing problems since June 1999 were not related to her compensable injury and that she should have been performing her pre-accident job functions in 2001. Given the weight of medical evidence, the mechanics of the accident and the duration of time since the compensable injury, the WCB concluded that, on a balance of probabilities, the worker had recovered from the effects of her compensable injury.

On August 27, 2002, a worker advisor provided the WCB with a July 11, 2002 report that he solicited from a third physiatrist who had been treating the worker since May 2001. In brief, the physiatrist diagnosed the worker with “myofascial pain syndrome which has come on top of fibromyalgia” and that both conditions “have the same origin and that is the repetitive work that she did for [the accident employer]”. Based on this evidence, the worker advisor requested that the WCB provide the worker with retroactive wage loss benefits and related medical aid, as it was clear that the worker continued to suffer from the direct and secondary effects of her compensable condition. If the WCB did not agree to reinstate benefits, the worker advisor requested a Medical Review Panel (MRP) based on a difference of medical opinion.

In a letter dated October 11, 2002, a WCB case manager informed the worker advisor that there was no question that the medical report of July 11, 2002 differed from the other medical evidence on file. However, prior to proceeding to an MRP, the case manager asked the worker advisor to provide the WCB with the letter that he had written to the specialist as it was unclear to the case manager as to whether the specialist had in his possession “a full statement of the facts and reasons supporting a medical conclusion” prior to providing his opinion.

On January 20, 2003, a different case manager informed the worker advisor that the report of July 11, 2002 had been reviewed by the same WCB medical advisor who had provided primary adjudication with his opinion on April 2, 2002. The medical advisor agreed that the worker had chronic complex pain problems, however, he was still of the view that the worker had recovered from the effects of her compensable injury and subsequent surgery, evidenced by the fact that a nerve conduction study that took place post-surgery was normal. The case manager said there was no relationship whatsoever between any of the conditions mentioned in the July 11, 2002 letter and the compensable injury, on a balance of probabilities, and that the request for an MRP did not meet the necessary criteria.

On June 25, 2003, the worker advisor asked Review Office to consider the issue of convening an MRP under subsection 67(4) of The Workers Compensation Act (the Act). Prior to considering the request, Review Office wrote to the treating physiatrist for clarification of his medical opinion as was outlined on July 11, 2003. A response from the physiatrist dated December 8, 2003 was then referred to the WCB’s physiatrist for comment and his response to Review Office is dated February 2, 2004.

On February 20, 2004, Review Office confirmed that the worker’s ongoing problems were not related to the compensable injury and that an MRP would not be convened. Review Office commented that the opinions expressed by the third physiatrist were “conjectural – speculative, and are not supported by a full statement of the facts; but based on history and subjective evidence provided by the worker, and medical theories ‘hypothesized’”. In the opinion of Review Office, there was insufficient evidence to establish, based on a balance of probabilities, that this worker’s ongoing symptoms are related to her compensable carpal tunnel syndrome. On August 23, 2004, a worker advisor appealed Review Office’s decision to deny the request for an MRP and a non-oral file review was arranged.

Reasons

Chairperson Scramstad and Commissioner Day:

The worker has requested that an MRP be convened in accordance with subsection 67(4) of the Act. In deciding this issue the panel must apply subsections 67(1) and 67(4).

Subsection 67(1) defines opinion as a full statement of the facts and reasons supporting a medical conclusion. We are satisfied that the reports provided by the worker’s treating physiatrist, specifically the reports of July 11, 2002 and December 8, 2003 meet the requirements of this subsection. The reports include a detailed review of the worker’s medical history, job duties, examination findings and treatments.

Subsection 67(4) provides that where the opinion of the WCB medical advisor in respect of a medical matter affecting compensation differs from the opinion of the worker’s physician, expressed in a certificate in writing, the WCB must refer the matter to an MRP, if requested by the worker.

We are satisfied that the requirements of subsection 67(4) have been met. There is, in our opinion, a clear difference of opinion between the WCB medical advisors’ opinions and the treating physiatrist’s opinion. The WCB medical advisors have opined that the worker has recovered from the workplace injury or that there is no causal link between the worker’s symptoms and the workplace injury. The treating physiatrist has opined that the worker has not recovered and that there is a causal link between the workplace injury and the worker’s current symptoms. The worker is entitled to have an MRP convened to address the matter.

The worker’s appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 6th day of January, 2005