Decision #87/99 - Type: Workers Compensation
An Appeal Panel review was held on June 2, 1999, at the request of a union representative, acting on behalf of the claimant.
Whether or not a Medical Review Panel should be convened in accordance with Section 67(4) of the Act.
That a Medical Review Panel should not be convened in accordance with Section 67(4) of the Act.
The claimant submitted a claim for bilateral carpal tunnel syndrome on October 14, 1996, which he related to his work duties as a sous chef. The activities performed by the claimant included washing and cleaning produce, preparing and deboning meat. The claim for compensation was accepted by the Workers Compensation Board (WCB) and on November 28, 1997, the claimant underwent right carpal tunnel release.
On July 29, 1988, the claimant was examined at the offices of the WCB regarding present status, current work capabilities and the need for restrictions. At the completion of the examination the medical advisor provided the following comments under "Discussion and Opinion" of his examination notes:
"From the examination today I believe the claimant has recovered from the effects of the CTS decompression. The claimant only has slight tenderness over the scar. There are no signs of any ongoing median nerve compression. Hand grip on both sides are within normal limits. I believe the minor discomfort over the decompression scar on the right wrist should improve with activities. Based on the findings of the present call-in examination I believe the claimant should be able to return to his pre-injury duty without any restriction.”
On August 12, 1998, primary adjudication determined that the claimant had recovered from the effects of his carpal tunnel syndrome and was fit to return to work. It was also felt that any ongoing difficulties with respect to the claimant’s wrists were not considered to be related to the compensable condition. As a result, wage loss compensation was paid to August 19, 1998, inclusive and final.
The above decision was appealed by the claimant’s union representative on February 11, 1999. The union representative submitted to the Review Office a medical report from the claimant’s attending physician dated December 11, 1998, and quoted the following comments from that report:
“He is significantly restricted from performing the duties of a chef. ...He still had a positive Tinels and a mildly positive Phalens.” “It is clear, that Mr. [the claimant] prior to the onset of his carpal tunnel syndrome was a conscientious and dedicated employee. I feel that his ongoing problems are related to the carpal tunnel syndrome and post-surgical complications. Therefore I feel that he is still compensable according to the Workers Compensation Board rules and regulations.”
The worker advisor contended that based on the above information that WCB benefits should be restored beyond August 19, 1998. If the Review Office did not agree to restore benefits, the union representative requested a Medical Review Panel (MRP) to resolve the difference in medical opinion as to whether or not the carpal tunnel syndrome and/or post-surgical complications restricted the claimant from his pre-injury employment as a chef.
Prior to considering the appeal, the Review Office referred the case back to initial adjudication to deal with the issue concerning the convening of a Medical Review Panel. Initial adjudication, in turn, referred the case to a medical advisor for an opinion with regard to the medical report dated December 11, 1998, and from a specialist dated October 26, 1998.
On March 24, 1999, primary adjudication wrote to the union representative stating that a Medical Review Panel would not be convened. It was indicated that the attending physician’s report did not reveal any objective evidence to support the claimant’s inability to return to work and that inconsistent information had been provided with respect to the claimant’s signs and symptoms. The adjudicator also noted that the claimant was referred to a specialist and that the examination results appeared to be consistent with the findings of the WCB’s healthcare advisor.
On April 1, 1999, the Review Office dealt with several issues concerning the case and in particular, determined there was no reason under section 67(4) of the Act, to request the opinion of a medical panel in reference to the “earning capacity” issue. The Review Office stated that a differing opinion by the claimant’s attending physician concerning a persistent functional abnormality of the right wrist, sufficient to prevent the claimant’s return to work as a sous chef, was not supported by objective findings or a statement of facts and reasons as anticipated by section 67(1) of the Act. As such there was no reason to request the opinion of a medical panel under section 67(4). The union representative later appealed the Review Office’s decision and a non-oral file review was held on June 2, 1999.
The issue in this appeal is whether or not a Medical Review Panel should be convened in accordance with subsection 67(4) of the Act.
The relevant subsections of the Workers Compensation Act (the Act) are subsection 67(1) which defines opinion and subsection 67(4) which provides for a reference to a Medical Review Panel (MRP) and subsection 60(2) which outlines the particular jurisdiction of the board.
Subsection 67(1) states:
67(1) In this section,
“opinion” means a full statement of the facts and reasons supporting a medical conclusion;
Subsection 67(4) states:
Reference to a panel on request
67(4) Where in any claim or application by a worker for compensation the opinion of the medical officer 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.
Subsection 60(2) states in part:
60(2) without hereby limiting the generality of subsection(1), it is declared that the exclusive jurisdiction of the board extends to determining
(c) the existence and degree of disability by reason of any injury;
(e) the loss of earning capacity resulting from an accident;
In this appeal the worker advisor has contended there is a difference of medical opinion between the claimant’s attending physician in a report dated December 11, 1998, and the opinion of a WCB medical advisor. We note that the WCB medical advisor examined the claimant on July 29, 1998 and made further comments in a WCB memorandum to file dated February 25, 1999.
We have reviewed all the evidence on file and in particular the above noted reports and have concluded that the evidence, on a balance of probabilities, does not establish that there is a difference between the claimant’s treating physician and the WCB medical advisor which would support a conclusion that an MRP should be convened.
We find that for there to be a difference of medical opinion there has to be a full statement of the facts and reasons supporting a different medical conclusion. We note the attending physician has contended that in his opinion the claimant is totally disabled from his pre-accident occupation as a chef while the WCB medical advisors have indicated that the continuing symptoms noted should not prevent the claimant from returning to his pre-accident occupation.
We find that there is no disagreement in the medical evidence with respect to the presence of some continuing symptoms and subjective complaints and therefore no inconsistency with regard to the fact that the claimant has lingering symptoms and complaints. We also note, in this regard, that the WCB is continuing to provide medical aid benefits to the claimant.
We also note from the evidence that EMG testing performed June 1, 1998 with impressions recorded by the examiners suggests an improvement in nerve conduction as compared to similar testing performed October 17, 1994 and December 3, 1996 which is consistent with the medical evidence which suggests the claimant is improving with some degree of continuing symptomatology.
However, we place no weight on the findings of a positive Tinel’s sign by the claimant’s attending physician, as we accept the evidence of the WCB medical advisor that the results of this test may vary between clinicians dependent on technique and interpretation; and that the test is thought to be approximately 50% sensitive specific and therefore, in our opinion, open to interpretation and not necessarily definitive or consistent.
We note the only comment made by the attending physician in his report with respect to the issue of on-going total disability is the attending physician’s contention that in order for the claimant to perform his duties as a chef that the claimant requires the complete use of both hands. (emphasis added) The attending physician states:
“ Mr. [the claimant], at the present time is unable to return to his work as a chef. He is significantly restricted from performing the duties of a chef. These require the complete use of both hands.”
We find that the attending physician’s contention of total disability is not supported by a full statement of facts and reasons to support his opinion as required by the Act. We also find that whether or not the claimant is capable of full, alternate or modified light duties is an adjudicative decision as outlined in the Act based on all the evidence weighed on a balance of probabilities.
Therefore we find, on a balance of probabilities, that there is no difference of medical opinion between a medical officer of the WCB and the claimant’s attending physician in respect of a medical matter affecting entitlement to compensation which meets the requirements of subsection 67(1) and 67(4) of the Act and that an MRP should not be convened. Therefore the claimant’s appeal on this issue is denied.
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 10th day of June, 1999