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

Commissioner's Dissent

Commissioner Finkel’s dissent:

The worker in this case is seeking a declaration that there is a difference of medical opinion between her treating physiatrist and a WCB doctor, and thus she is entitled to an MRP, under subsection 67(4) of the Act. This case was discussed in a non-oral review, with written presentations provided by the worker’s advocate and the employer.

After careful consideration of the submissions and the medical reports on the file, I have concluded that the statutory requirements of subsections 67(1) and 67(4) have not been met.

Legislation:

Subsection 67(4) of the Act provides that an MRP will be convened where “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.” The term “opinion” is defined in subsection 67(1) as “a full statement of the facts and reasons supporting a medical conclusion.”

The Facts:

As noted in the background, the WCB accepted a claim by the worker that her right carpal tunnel syndrome (CTS) condition was job-related, and with evidence of a mild CTS condition noted in diagnostic testing, authorized surgery for that condition. The file evidence discloses that the surgery was successful, in that later diagnostic tests showed no median nerve slowing at the wrist. The worker, however, continued to report right arm problems, and later, shoulder problems. Over time, an extending series of medical conditions have been identified by various medical practitioners on the file. These diagnoses include thoracic outlet syndrome, myofascial pain syndrome affecting both arms, neck, and upper back, fibromyalgia, sleep disorder, and depression.

The Conflicting Medical Reports:

A WCB medical advisor wrote two memos, on April 2, 2002 and December 5, 2003, in which he noted that the worker’s CTS surgery was successful, based on the nerve conduction study performed after the date of surgery as well as the clinical findings of a WCB physiatrist who had examined the worker in September 1999. On the basis of this medical evidence, the medical advisor concludes that the worker had recovered from her compensable injury.

As well, a WCB physiatrist examined the worker on September 8, 1999, and similarly concluded in his examination report that the worker had recovered from the CTS surgery. He also tested for and did not find evidence of myofascial pain syndrome, and stated that there were limited objective findings to support the worker’s pain complaints.

Later, on February 3, 2004, the WCB physiatrist reviewed the medical file, including the medical reports and opinions provided by the worker’s physiatrist, and concluded that he could “find no pathoanatomic diagnosis” for the multiple diagnoses identified as time progressed. In other words, he could not causally connect the original workplace injury to the worker’s current symptoms and medical conditions.

Countering these WCB medical opinions, the worker relies on the July 11, 2002 medical report of her attending physiatrist and a later letter written by him on December 8, 2003, and states that her physiatrist has provided a different medical opinion -- that her ongoing medical difficulties are indeed causally related to her compensable CTS condition.

In his letter of July 11, 2002, the worker’s physiatrist states that the worker has myofascial pain syndrome and fibromyalgia and states that these medical conditions were caused by her repetitive work duties.

In his letter of December 8, 2003, the worker’s physiatrist lists the various medical complaints, and suggests that the CTS condition led to a sleep disorder which in turn led to the development of the other medical conditions experienced by the worker, and thus all are causally related to the compensable CTS injury.

Analysis:

The WCB physicians have noted that the medical condition accepted on the file was CTS, resulting in a right carpal tunnel release. This is confirmed by the adjudicative decisions on the file. Although many other diagnoses have shown up in later medical reports, none of them have been accepted by the WCB as being causally related to the workplace, either as physical injuries directly related to the worker’s workplace, or as sequelae to her compensable CTS injury. The physical diagnoses include thoracic outlet syndrome, myofascial pain syndrome, and fibromyalgia. As well, the worker also has been diagnosed with a sleep disorder, depression, and a chronic pain condition.

The worker’s physiatrist first treated the worker on May 30, 2001, some four years after the 1998 compensable injury. He comments in his letter of July 11, 2002 that “I have been treating her for myofascial pain syndrome which has come on top of fibromyalgia. I feel both conditions have the same origin and that is the repetitive work that she did for [her employer]. She had to leave work because of pain and numbness affecting both hands, pain in the forearms to the shoulders as well as significant pain in her neck.” This report describes treatment over the next year for these conditions, encompassing pain or tenderness complaints over much of the worker’s body.

In dealing with these comments, it is important to note that this claim was accepted for CTS, and that the worker’s work duties were only assessed by the WCB regarding the unique occupational exposures needed to trigger this condition. In this case, there is no medical dispute as to whether the worker has myofascial pain or fibromyalgia. What is now asserted by the worker’s physiatrist is whether the worker’s job duties -- “repetitive work” -- could have directly caused these medical conditions. I consider the determination of this new issue of occupational exposure to be an adjudicative matter and not a medical matter, and as such subsection 67(4) does not have any application to these assertions.

The worker’s physiatrist offers a second medical scenario in his lengthy letter in December 2003. He suggests that the worker began to suffer a sleep disorder as a result of complications from her CTS condition and/or the resulting surgery. This sleep disorder worked in a cycle with the worker’s ongoing pain and/or depression, and led over time to the development of the other medical conditions, in particular her myofascial pain syndrome that is affecting many parts of her body including shoulders, neck, lower back and legs, and fibromyalgia which is a total body ailment.

After reviewing the worker’s history, the worker’s physiatrist states on page 4 of his 2003 letter that “I feel one of the main sources of her ongoing problems has been her sleep disorder.” He then discusses the interrelationship between pain and disturbed sleep, and the further difficulties that arise with the presence of a co-existing major and chronic depression. He then notes that the worker “has chronic pain in the arms, shoulders and neck. She has evidence for somatic dysfunction created by myofascial taut bands. She also meets the criteria for fibromyalgia. She experiences depression as well as a considerable disruption in her sleep at this point in time. I feel the progression of her condition to the present state has been gradual starting initially with the symptoms of medial neuropathy in the right hand. The pain created a significant alteration in her sleep quality which, in turn, influenced her mood and also allowed for increased sensitization of her central nervous system to pain.”

It is apparent that the physiatrist’s central thesis is that the worker’s sleep disorder follows from and is causally connected to the worker’s CTS condition, and that everything else is causally connected to the sleep disorder, and thus to the original compensable injury.

Of critical importance to establishing a “pathoanatomic” connection (and thus the difference of medical opinion) is whether a biologically plausible link has been asserted by the worker’s physiatrist between the worker’s CTS condition and the later developing sleep disorder. In other words, is the statement of facts accurate? And do they link to the medical opinion offered?

The physiatrist first addresses whether the CTS condition was still in play after the surgery, given the normal clinical findings and nerve conduction studies that were noted afterward. He proposes that “the normalization of nerve conduction studies does not mean that the symptoms will disappear.” He then suggests a number of scenarios under which sensory abnormalities like pain can persist. These include: damage of the palmar cutaneous nerve, a painful aroma due to injury of the palmar cutaneous branch, intrinsic nerve injury secondary to compression and external scarring. He also indicates that there may also be contribution from a number of other sites including the neck and compression of the median nerve as it passes through the pronator teres at the elbow. The worker has as well hypothyroidism, and a diagnosis of thoracic outlet syndrome.

However, in reviewing this discussion, I note that the worker’s physiatrist has provided a series of speculative diagnoses of how a CTS surgery might go wrong; outside of this general discussion of what might happen after a CTS surgery, he provides no medical findings or conclusions that any of these potential diagnoses are in fact present, nor does

he point to any other medical reports or information suggesting that any of these scenarios are in fact diagnosed or being treated. As such, there is no medical opinion based on a statement of facts offered by the worker’s physiatrist to support the conclusion that the worker continues to suffer from the effects of her CTS condition.

The physiatrist also attempts to bridge the CTS condition to the onset of the sleep disorder by noting that there were concerns shortly after the CTS surgery about the possibility of a complex regional pain disorder (reflex sympathetic dystrophy), including a referral for treatment of same, thus suggesting that the surgery was not successful. I note, however, that this diagnosis was not sustained and appears to have been supplanted by the other diagnoses established on the file. Again, there is no medical opinion based on a statement of facts offered by the worker’s physiatrist to support the conclusion that the worker has a complex regional pain disorder that is a sequela of her CTS condition and/or surgery.

In reviewing the balance of the December 2003 letter, I note that the worker’s physiatrist goes on to describe a number of other medical conditions diagnosed for the worker that can lead to upper extremity symptoms and/or a sleep disorder. In particular:

• The physiatrist acknowledges that right arm symptoms can also arise from other sites including the neck and compression of the median nerve at the elbow. Again, these diagnoses are speculative in nature and not supported by any medical evidence on file. Even if present as described, there has been no adjudication linking these medical conditions to the worker’s workplace duties.
• The worker has been diagnosed with a thoracic outlet syndrome condition, and associated symptoms in the worker’s right upper extremity. Again, I note that this condition has not been established as being work-related.
• The worker has had upper limb difficulties bilaterally since 1994, preceding the 1998 CTS claim by several years. These difficulties have never been adjudicated by the WCB or found to be work-related.
• The worker was diagnosed with myofascial pain syndrome in a multitude of locations including the upper extremities, shoulders, upper back, neck, lower back and legs, subsequent to the WCB physiatrist’s examination in September 1998. The worker has also been diagnosed as having fibromyalgia. These conditions have not been proposed as being a direct physical sequela of the CTS condition or subsequent surgery by the physiatrist or any other medical practitioner.
• The physiatrist puts weight on the fact that some unexplained shoulder symptoms had been identified by the WCB physiatrist in his examination in September 1999. Again, this statement is problematic given firstly that the worker provides a history of ongoing shoulder difficulties dating back to 1994, and secondly, that the WCB has never accepted responsibility for any shoulder problems experienced by the worker.

The physiatrist then discusses at length the problems associated with sleep disorders: “I feel one of the main sources of her ongoing problems has been her sleep disorder. The relationship between pain and disturbed sleep is complex and appears to be bidirectional in that pain makes sleep more difficult; disturbances in sleep exacerbate pain. Pain is commonly a suggested cause of sleep disturbance and is often combined with stiffness, muscular discomfort and cognitive arousal…The ability to assess the presence and severity of coexisting major and chronic depression with sleep disturbance is difficult…As sleep disorders are a common feature of affective disorders and the symptoms of depression are a common outcome of chronic pain, the relationship between pain, effective disorders and sleep disturbance is difficult to tease apart.”

Again, I find that there is no medical dispute regarding the presence of a sleep disorder or depression or the other non-compensable medical conditions listed above. The problem remains though that many of these conditions are prominent in their presentation and are themselves significant pain generators that can lead to the sleep disorders described by the worker’s physiatrist. Outside of a temporal relationship in which the CTS condition preceded the sleep disorder, the worker’s physiatrist has failed, however, to demonstrate a biologically plausible linkage between the worker’s CTS condition or its residues, and the sleep disorder. As such, I find that he has failed to provide a medical basis for his opinion that the worker’s sleep disorder is causally related to the worker’s surgery.

As such, I find that the worker’s physiatrist has failed to provide a “full statement of facts” to support his medical opinion, and thus there is no difference of medical opinion as required under subsection 67(4) of the Act. Accordingly, I would deny the worker’s appeal.

A. Finkel, Commissioner