The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on July 27, 2000, at the request of an advocate, acting on behalf of the claimant.

Issue

Whether or not a Medical Review Panel should be convened.

Decision

That a Medical Review Panel should not be convened.

Background

On March 5, 1985, the claimant was lifting a case of aluminum cans when he felt a sharp pain in his lower back. The claimant was eventually diagnosed with a small central disc protrusion at the L4-L5 region. The claim was accepted as a Workers Compensation Board (WCB) responsibility. In August 1986, following assessment by a WCB medical officer, the claimant was considered capable of working without restrictions and did not have a rateable PPD (permanent partial disability).

In February 1997, an advocate acting on behalf of the claimant, submitted a February 11, 1997 report from a chiropractor that contained the results of the claimant’s lumbar range of motion tests. The report was forwarded to a WCB medical advisor for comment. On March 13, 1997, the advocate/claimant was advised that although the chiropractor’s report showed reduced ranges of motion, there was no evidence to relate the changes directly to the 1985 compensable injury. An adjudication supervisor confirmed this decision on April 9, 1997.

On June 12, 1997, the claimant’s advocate submitted a further chiropractic report dated June 9, 1997. Based on the claimant’s history and the findings on examination, it was the chiropractor’s opinion that the claimant’s limited mobility was the result of the injuries he sustained in the 1985 work injury. In view of the chiropractor’s comments, the advocate requested that the claimant be examined at the WCB’s offices to determine what impairment rating was applicable.

On July 2, 1997, an adjudication supervisor wrote to the advocate stating that no change would be made to the April 9, 1997, decision as it was still the opinion of the WCB that the claimant had fully recovered from the workplace accident. There was no information to specifically attribute any loss of range of motion to the 1985 workplace injury.

In August 1997, a submission was received from the advocate dated June 30, 1997. The advocate outlined three issues for consideration. These were as follows:

1. Whether the claimant was entitled to a permanent partial impairment award.

2. Whether the claimant should have received wage loss benefits after June 10, 1986.

3. That the case should be referred to a medical panel for opinion, in compliance with section 67(3) or (4) of the Workers Compensation Act (the Act).

In a letter dated August 29, 1997, Review Office determined that the claimant was not entitled to receive wage loss benefits after June 10, 1986. With respect to a permanent partial impairment award, Review Office requested that the claimant be examined by a WCB medical advisor. The claimant was then assessed at the WCB’s offices on September 26, 1997.

On October 14, 1997, an adjudication supervisor wrote to the advocate indicating that the recent examination by a WCB medical advisor confirmed that the claimant had recovered from the effects of his workplace injury of 1985. It was the WCB medical advisor’s opinion that the claimant was currently suffering from degenerative disc disease involving the L5-S1 level. The degenerative disc disease was not related to the 1985 compensable injury but was a progression of a naturally occurring disease process.

With respect to the request for a Medical Review Panel (MRP), the adjudication supervisor indicated that the request could not be honored as Section 67(4) of the Act had not been met. The adjudication supervisor stated the following in this regard: “Section 67(4) indicates that, “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”. The opinion on which you have based the request for a Medical Review Panel is from a chiropractor. As this does not meet the requirement of Section 67(4), we are unable to comply with your request.” On November 4, 1997, the advocate appealed the adjudication supervisor’s decision to Review Office.

On November 21, 1997, Review Office stated that it acknowledged that the chiropractor whom the claimant had been attending in the past few years had expressed a differing opinion. He said that the reduced mobility in the lower back resulted from the work related accident in 1985, but has not supported this opinion with a full statement of the facts and reasons for such a conclusion. Considering the available medical evidence, Review Office did not find there was good and sufficient reason to seek the further opinion of a medical panel. Review Office indicated that it was not satisfied that the opinion of a medical review panel ought to be requested under section 67(3).

On November 27, 1997, the treating chiropractor submitted a report which expressed disagreement with some of the opinions that were made by the WCB medical advisor in his examination report of September 26, 1997. On December 15, 1997, the Review Office wrote to the claimant’s advocate indicating that this new information did not change the previous Review Office decision. Specifically, Review Office did not consider that the claimant was entitled to benefits after June 1986 or that there was reason to refer the case to a medical panel under section 67(3) of the Act.

Further medical information was received from a physician specializing in occupational health dated March 5, 1998. Based on this report, the claimant’s advocate requested a MRP pursuant to section 67(4) of the Act.

On January 22, 1999, Review Office denied the request for a MRP stating that the actual examination findings recorded by the occupational health physician and the WCB medical advisor were not significantly different, except that the occupational health physician also diagnosed an element of myofascial pain involving the gluteal muscles. Review Office did not consider the recent findings had actually expressed an opinion about the causal relationship between these recent findings and the work related 1985 accident.

Review Office believed there was no reason to require the opinion of a medical panel under section 67(4) as it was not clear that an actual difference of opinion about a medical matter had been expressed in writing. Review Office did not consider that the doctor provided a statement of facts and reasons supporting a medical conclusion about the probability of a causal relationship between the current low back findings and the work related accident in 1985. On June 16, 1999, the claimant’s advocate appealed Review Office’s decision and a non-oral file review was arranged.

Reasons

The claimant is seeking to have a Medical Review Panel (MRP) convened in respect of his compensable injury, under Section 67(4) of The Workers Compensation Act (the Act) which states, “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”.

The claimant’s advocate has provided a written submission listing a series of medical practitioners seen by the claimant since his injury. The advocate appears to rely primarily on the medical opinions provided by a chiropractor in 1997 and by an occupational health physician report dated March 5, 1998 as differing from a medical opinion advanced by a WCB medical advisor on March 5, 1998, and by a WCB medical advisor who examined the claimant on December 10, 1985 and August 8, 1986.

With respect to the chiropractor’s reports, we note that Section 67(4) of the Act refers to an opinion provided by a physician selected by the worker. Chiropractors are not defined as “physicians” and accordingly we are unable to consider the reports from the claimant’s chiropractor as meeting the requirement of a physician’s opinion, as required by Section 67(4).

With respect to the occupational health physician’s report of March 5, 1998, we note that Section 67(1) defines “opinion” as meaning a full statement of the facts and reasons supporting a medical conclusion. We have reviewed the report and note the following:

• The physician first saw the claimant some 13 years after the compensable injury, and almost 12 years after benefits were terminated as of June 10, 1986.
• The physician, in describing the claimant’s medical history, does not appear to have had medical records at his disposal and relies on the history provided by the claimant.
• The history recorded by the physician indicates, in part, that “He [claimant] was referred to Dr. [orthopaedic surgeon], who admitted him to the Concordia Hospital where they performed a myelogram study which diagnosed disc protrusion and partial collapse.”  The physician’s summary states that “In summary, this 38 year old sales supervisor has a significant low back injury involving disc protrusion and radiculopathy in 1985 with chronic low back pain which troubles him in daily activities at work and at home; with flare ups it can be temporarily disabling. There is evidence of sacroiliac dysfunction on the left side with restricted lumbosacral mobility and left hip rotation.”
• The actual myelogram report, dated July 2, 1985 states “There is a shallow indentation of the contrast column at L4-5 consistent with a small central disc protrusion at this level. No abnormality was seen on the oblique views.” [emphasis ours]
•  There is no reference in the physician’s report to the subsequent course of treatments provided to the claimant, nor to the medical examinations and findings subsequent to that date. In particular, an examination by a WCB medical advisor on December 10, 1985 notes that “it would appear that the claimant has recovered from the protruded disc” and later indicates “there appears to be a strong functional component to his symptoms.” As well, in a subsequent examination by the WCB advisor on August 8, 1986, he concludes that “there is no evidence of disc protrusion or nerve root irritation.” This was the last medical information on file prior to the 1997 request for reconsideration of a permanent partial disability award.
• There is no reference by the physician to X-rays taken on July 2, 1985, approximately three months post injury which refers to narrowing of the lumbosacral space, and more recent X-rays taken on October 7, 1997 which indicate “Minor scoliosis convex to the left. Marked narrowing of the intervertebral disc space at L5-S1 level consistent with disc degeneration. Some narrowing of the L4-5 disc space is also noted.”

After a full review of the report, we find that the medical report of the claimant’s occupational health physician provides an opinion regarding the claimant’s disc protrusion that is incomplete and not based on a “full statement of facts” as required by Section 67(1) of the Act, and therefore does not stand as a differing opinion as required by Section 67(4).

After considering all the medical evidence on the file, we find that a difference of medical opinion is not, on a balance of probabilities, present that would satisfy the requirements of Section 67(4) of the Act. Accordingly, there is no basis to convene a MRP, and the claimant’s appeal is hereby denied.

Panel Members

B. Campeau, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

B. Campeau - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of September, 2000