The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a request for a Medical Review Panel (“MRP”) pursuant to subsection 67(4) of The Workers Compensation Act (the “Act”) on the grounds that there is a difference of opinion between the worker’s treating physician and a WCB medical advisor about the causal relationship between the worker’s back complaints and his compensable injury.

On June 13, 1997 the worker had a workplace injury which was accepted by the Workers Compensation Board (the “WCB”) as chronic fibromuscular pain and sprain to his left calf muscle. The worker later developed back pain that he says is related to the workplace injury. He says that the medical reports from his treating physicians support this position. The reports from the WCB medical advisors do not. He therefore says that there is a difference in medical opinion in accordance with subsection 67(4) of the Act which requires convening an MRP.

The WCB denied the worker’s request for an MRP at both the adjudicative and Review Office levels. It is in this context that the worker filed an appeal with the Appeal Commission and a review was held on September 15, 2006.

Issue

Whether or not a Medical Review Panel should be convened under subsection 67(4) of The Workers Compensation Act.

Decision

That a Medical Review Panel should not be convened under subsection 67(4) of The Workers Compensation Act.

Decision: Unanimous

Background

Reasons

The worker, through his advocate, says that there is a difference in medical opinion between his treating physicians and the WCB medical advisors as to the relationship between his June 13, 1997 accident and his back difficulties. To determine whether there is effectively a difference in medical opinion under subsection 67(4) of the Act it is necessary to review the contents of these medical reports.

The Treating Physicians

“In summary he appears to have had some soft tissue injury involving the calf muscles and perhaps the left knee itself. There is evidence of mild S1 root injury on the left and subtle evidence of L5 root disease on the left as well.”

• A February 5, 1998 report from the family physician references an October 9, 1997 visit where the worker complained of aches and pains in his lower back, left buttock, left thigh and left leg which were getting worse and that he thought were due to “bouncing on a truck for all those years”.

• A March 24, 1998 report from the neurologist noting that there was “mild objective weakness of plantar flexion of the left foot…[and] evidence of lumbar root injury as a cause for the weakness although any signs of acute nerve root irritation were absent.”

• An April 16, 1998 report from the worker’s neurologist notes:

“The CT scan demonstrates moderate to severe spinal stenosis at the L4-5 level due to disc bulging and ligamentum hypertrophy. The numbness and weakness therefore is due to multiple root entrapment secondary to the spinal stenosis.”

The WCB Medical Advisors

• A November 12, 1997 report from a WCB medical advisor who states:

“…the [worker] complains of pain in the posterior left thigh and occasional pain in the right thigh. In addition, the [worker] also complains of occasional pain in the left hip and back area. The [worker] indicates that with prolonged standing, walking and sitting, he would experience more back pain. The [worker] indicates that the back pain started some time in July or August after his work related injury…

…I am not able to make any tissue-specific diagnosis regarding the [worker’s] ongoing back and leg problems. From today’s examination, there are no signs of any ongoing left knee problem. There is also no sign of any active radiculopathy or peripheral neuropathy.”

• A May 25, 1998 report from a WCB medical advisor that expresses his view that there was no ongoing relationship between the compensable injury and the worker’s current difficulties.

• An October 20, 2005 memorandum from a WCB medical advisor stating that the worker’s lumbar disc degeneration, facet degeneration and hypertrophy and acquired stenosis was a pre-existing condition (and not a workplace injury) which began as early as 1978. It also comments that the neurologist’s reports suggest a diagnosis of compromised left lower lumbar nerve roots arising out of his spinal stenosis. There is “no suggestion of a diagnosis of lumbar disc herniation, which might suggest a more recent event”.

• A November 2, 2005 memorandum from a WCB sport medicine advisor which states that most spinal stenosis results from a combination of degenerative changes such as degenerative disc disease, facet osteoarthritis and hypertrophy of the ligamentum flavum over a period of time. The mechanism of injury was unlikely to have caused either an aggravation or enhancement to the spinal stenosis as there was no acute low back events such as disc herniation.

Analysis

Subsection 67(4) of the Act provides:

“Where in any claim or application by a worker for compensation 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, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by 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 67(1) clarifies that an opinion means a full statement of the facts and reasons supporting a medical conclusion.

In reviewing the medical reports before us, we do not see a difference in medical opinion between the treating doctors and the WCB medical advisors. Indeed, all of the doctors (the treating physicians and the WCB medical advisors) suggest that the worker’s back complaints are due to degeneration. Further, while the WCB medical advisors clearly state that they do not feel that these degenerative changes were caused by the workplace injury, there is no clear opinion based on a full statement of facts expressed by the worker’s treating physicians.

Based on the foregoing, we do not find, on a balance of probabilities, that there is a difference in medical opinion that would warrant the convening of an MRP under subsection 67(4) of the Act.

For these reasons, the worker’s appeal is denied.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of October, 2006