Decision #93/04 - Type: Workers Compensation
Preamble
A hearing was held at the Appeal Commission on June 6, 2007 at the request of legal counsel, acting on behalf of the worker. Following the hearing, the panel met and rendered its final decision.Issue
Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of The Workers Compensation Act ("the Act").Decision
That a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.Decision: Unanimous
Background
The worker filed a claim with the Workers Compensation Board (WCB) in February 2005 for left arm difficulties that he related to his employment activities as a long distance truck driver. The date of accident was recorded as being July 1, 2004 and was reported to the employer on January 22, 2005.
In a February 22, 2005 report, the worker's treating physician advised the WCB that the worker had numbness and loss of power in his left arm and digits that was episodic. The diagnosis rendered was a left ulnar neuropathy. The physician commented that the worker’s current condition was likely related to the repetitive nature of being a truck driver with pressure to the left arm and elbow.
Following consideration of the medical information, the worker’s employment history and the onset of his symptoms, the WCB denied the worker’s claim in March and April 2005 as it could not associate his left ulnar neuropathy to his work activities. The worker disagreed with the decision and appealed to Review Office.
Prior to rendering its decision, Review Office consulted with a WCB orthopaedic consultant on May 18, 2005. The consultant confirmed that the medical information was consistent with a diagnosis of ulnar neuropathy. He stated that leaning on a windowsill/door of a vehicle for extended periods of time can be a common cause of ulnar neuropathy. As the symptoms were in the left arm only, this suggested that this activity was the likely cause of the condition. The worker’s other duties such as tarping, strapping, etc. were not causative but may have aggravated the condition. He further advised Review Office that “Sensory findings without motor findings would not require time loss. There was no evidence of motor dysfunction and therefore no reason to support time loss. If the worker avoids leaning on his elbow, then the symptoms will gradually decrease over time.”
On May 18, 2005, Review Office determined that the worker’s condition of ulnar neuropathy satisfied the WCB’s definition of an "accident". With regard to any time loss, however, Review Office noted that the worker continued to work despite his symptoms until other health factors took him off work. It also referred to the WCB orthopaedic consultant’s opinion that time loss would not be required in relation to the ulnar neuropathy and that the worker’s symptoms should subside with the avoidance of leaning onto his elbow.
The worker subsequently advised the WCB that he was terminated from employment because of his left arm and has not worked since December 31, 2004. On May 31, 2005, a WCB case manager informed the worker that the WCB was unable to accept responsibility for wage loss benefits based on the opinion expressed by the WCB orthopaedic consultant to Review Office on May 18, 2005.
In a report to the WCB dated June 3, 2005, the treating physician noted that the worker still complained of constant ulnar neuropathy with dysesthesia and was awaiting surgery. The worker felt unable to drive safely due to the discomfort and sensory disturbance. The treating physician concurred that the worker’s safety driving a long distance truck may be impaired with his degree of symptomology. He noted that the worker’s diabetes had long since been ruled out as a cause of his neuropathy.
On June 7, 2005, the WCB orthopaedic consultant was asked to comment on the June 3, 2005 opinion expressed by the treating physician. He stated “Neuropathy is a general term – not related directly to function. We already have opinion on file that the worker has dysthesia but no loss of motor function. I cannot therefore support opinion that the worker is unable to perform his truck driving duties.” Based on this opinion, the worker was notified on June 8, 2005 that no change would be made to the decision made on May 31, 2005 not to award wage loss benefits.
In a report dated June 22, 2005, a treating neurosurgeon suggested that the worker undergo ulnar nerve decompression surgery. Financial responsibility for this procedure was accepted by the WCB. The surgery later took place on October 11, 2005 and the worker received wage loss benefits from October 11, 2005 to December 6, 2005 inclusive.
As the worker continued to appeal the WCB’s decision to deny him wage loss benefits retroactive to December 31, 2004, the case was referred to a WCB medical advisor by Review Office, to provide an opinion and rationale as to whether or not the worker was capable of continuing to work as a truck driver prior to his surgery on October 11, 2005.
In a report dated February 17, 2006, the medical advisor stated, in part, that an inability to work as a truck driver would be plausible if there was evidence of motor impairment due to the neuropathy, in a manner that compromised safe driving ability. He said this had not been substantiated by the submitted medical information on file. He therefore concluded that the worker’s ulnar neuropathy with normal left hand power would not have prevented him from continuing with his duties as a truck driver. He also referred to comments that were made by Review Office in its earlier decision that the worker continued working despite the ulnar neuropathy and then went off work due to another condition, demonstrating that the worker was capable of carrying out his work duties while being symptomatic.
Based on the above medical opinion, Review Office confirmed on February 21, 2006 that no change would be made to the WCB’s decision to deny the worker wage loss benefits retroactive to December 31, 2004 or subsequent to December 5, 2005.
In a report dated March 29, 2006 the treating neurosurgeon noted that the worker continued to have sensory symptoms involving his left fourth and fifth digits and that this may be related to Guyon’s Canal syndrome. He also noted that repeat EMG nerve conduction studies revealed evidence of severe bilateral carpal tunnel syndrome, left more than right. He did not recommend further surgical treatment for the worker but did recommend he keep all pressure off the elbow regions.
On May 16 and 18, 2006, the WCB medical advisor stated that neither Guyon Canal syndrome nor carpal tunnel syndrome were related to the compensable injury. On May 18, 2006, the worker was advised by the case manager that the medical information did not establish a cause and effect relationship between his left arm injury of July 1, 2004 and the diagnoses of Guyon’s Canal and carpal tunnel syndrome.
On December 7, 2006, a solicitor acting on the worker’s behalf provided the WCB with a November 1, 2006 report from the treating physician which disagreed with the opinion expressed by the WCB medical advisor on February 17, 2006. Based on the differing medical opinions, the worker requested a Medical Review Panel (MRP) in accordance with subsection 67(4) of the Act.
On December 18, 2006, a unit supervisor denied the worker's request. It was determined that the attending physician’s opinion of November 1, 2006 did not meet the criteria set forth in subsection 67(1) of the Act as it did not contain a full statement of facts and reasons supporting a medical conclusion to support his position that the worker could not perform his pre-accident duties as a truck driver. On February 19, 2007, the solicitor appealed this decision to Review Office.
In a decision dated March 20, 2007, Review Office confirmed that an MRP would not be convened as it felt that the attending physician’s report did not satisfy the requirements of an ‘‘opinion’’ as defined by subsection 67(1) of the Act. Review Office further stated,
“Your claim has been accepted as an ulnar neuropathy caused by the prolonged resting of your left elbow on the windowsill of your truck while driving. [The treating physician] references a comment by your neurosurgeon, who postulated following surgery that your ongoing symptoms may be related to a Guyon’s canal syndrome. We are unable to accept that this condition would have been produced by the work injury described, and [the treating physician] has not explained the etiology of this condition.
In addition, [the treating physician] references a conversation which he had with a representative of Driver and Vehicle Licensing inferring that sensory deficits in the hand would adversely affect one’s ability to drive. This information appears contrary to advice provided from the same office to a WCB Medical Advisor in February 2006.
Lastly, [the treating physician] has failed to report that you continued to drive a truck with symptoms of an ulnar neuropathy between July 2004 and December 2004, when you went off work due to an unrelated condition.”
On April 11, 2007, the solicitor appealed Review Office’s decision and a hearing was arranged.
Reasons
The issue on this appeal presents a narrow question: whether, pursuant to subsection 67(4) of the Act, the worker is entitled to a Medical Review Panel ("MRP").
The Act provides:
Reference to panel on request of worker
67(4) 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.
In our opinion the facts of this case demonstrate exactly the type of situation contemplated by the legislation.
The worker's request for an MRP relates to his claim for wage loss benefits resulting from a compensable injury which occurred on July 1, 2004. In particular, the worker claims entitlement to wage loss benefits both prior and subsequent to his surgery of October 11, 2005.
Part of the adjudication of that claim involves an analysis of the worker's medical restrictions and whether and to what extent those restrictions are caused by the original compensable injury.
A review of the file reveals a history of disagreement of opinion between the worker's treating physician and WCB medical advisors on a number of areas including whether and to what extent the worker's symptoms are and have been causally related to the compensable injury. The worker's request for an MRP comes out of this history of disagreement. The most recent example is found between the treating physician's report of November 1, 2006 and the medical advisor's memo of February 17, 2006.
Since the occurrence of his compensable injury the worker has been followed consistently by his treating physician. That physician has written a number of reports to the WCB which are included in the file. The reports set out the worker's injuries, the treating physician's opinion regarding the worker's corresponding work restrictions and the cause of those restrictions in terms of attributing them to the original compensable injury. The most recent of those opinions is set out in a report written by the treating physician to the worker's solicitor dated November 1, 2006. That report was provided to the WCB in support of the worker's request for wage loss benefits.
The Board has also been in consistent receipt of reports from its own medical advisor regarding the worker's entitlement to benefits. The most recent of those reports is dated February 17, 2006.
The WCB medical advisor in his report of February 17, 2006 did not dispute the existence of the original compensable injury. He expressed the opinion, however, that sensory disturbance involving the ulnar aspect of the hand alone would not be expected to compromise the daily activities of a truck driver. He went on to express the opinion that an inability to work as a truck driver would be plausible if there were evidence of motor impairment due to the neuropathy in a manner that compromised the driving ability but that in his opinion this had not been substantiated by the submitted medical information.
In summary, therefore, in his opinion "a left ulnar neuropathy with normal left hand power as was objectively reported to be the case here should not have prevented the claimant from continuing with his duties as a truck driver".
In his report dated November 1, 2006, the worker's treating physician states that he has reviewed the WCB medical advisor's report of February 17, 2006 along with the reports of other physicians who have evaluated the worker. He states that all evaluating physicians have agreed that there is left ulnar neuropathy. He comments that the patient feels this is problematic for driving a truck and says that he agrees with this view.
The treating physician further sets out that he has discussed these issues with the Department of Driver & Vehicle Licensing and that that office has advised him that a sensory deficit of this nature may indeed adversely affect the patient's fitness to drive. He states that the worker still has significant sensory neuropathy arising from ulnar neuropathy relating to workplace injury and that the severity of this injury may compromise his position to safely drive a Class I vehicle. He expresses the opinion that the surgery the worker underwent in October of 2005 did not correct his symptomology clinically and that, in his opinion, the worker's ability to drive safely is compromised as the result of the workplace injury.
The Review Office decision of March 20, 2007 addresses a number of issues in denying the worker's appeal. In particular, however, the decision states that the treating physician's report of November 1, 2006 does not satisfy the requirements of an "opinion" as defined by subsection 67(1) of the Act.
In our view the treating physician's report does constitute an opinion within the meaning of the Act. Pursuant to subsection 67(1) an opinion "means a full statement of the facts and reasons supporting a medical conclusion".
We find that the treating physician's report of November 1, 2006 is an "opinion" within the meaning of subsection 67(1) of the Act. We make this finding both on reviewing the contents of the report itself and on viewing the report in the context of previous reports written by the same physician, all of which addressed issues of a medical matter affecting the worker's entitlement to compensation, from the time the claim was originally reported.
At the hearing of this matter, the worker's solicitor commented that what was interesting about the two medical opinions was that they come to different results on basically the same information. The evidence also disclosed that of the two physicians, only the worker's treating physician had actually examined the worker.
Having regard to the medical reports provided by the worker's treating physician and comparing those reports to various memos and reports provided by the WCB medical advisor, we find that there is indeed a difference of opinion between the two physicians in respect of "medical matters affecting entitlement to compensation" including whether the worker has and is experiencing medical restrictions affecting his ability to work and whether and to what extent those restrictions can be attributed to his compensable injury.
Accordingly we find that a Medical Review Panel should be convened.
Panel Members
S. Walsh, Presiding OfficerA. Finkel, Commissioner
W. Leake, Commissioner
Recording Secretary, B. Kosc
S. Walsh - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of July, 2007