The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The issue under appeal is to determine whether or not there was a difference of medical opinion between a medical advisor of the Workers Compensation Board (“WCB”) and the worker’s treating physician to warrant the convening of a Medical Review Panel (“MRP”) under subsection 67(4) of The Workers Compensation Act (the “Act”). Both primary adjudication and Review Office determined that there was no difference of medical opinion as there was no dispute over the worker’s diagnosed condition and the decision to deny the claim was based on an adjudicative matter and not a medical matter. The worker advisor disagreed and filed an appeal with the Appeal Commission and a file review was held on May 21, 2008.

Issue

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act.

Decision: Unanimous

Background

The worker filed a claim with the WCB on November 7, 2006 for right wrist difficulties that he attributed to using a mouse and keyboard on a repetitive basis. The worker stated that he first noticed soreness in his right wrist in early October 2006 and that the symptoms would subside while he was away from work. On October 25, 2006 while at work, the pain in his right wrist increased and he had a hard time keeping up with his regular duties.

Initial medical information indicated that the worker attended a physician for treatment on October 30, 2006. The physician reported that the worker had a painful right wrist and that the center of pain was directly over the insertion of the flexor carpi ulnaris. He noted that the worker described an increase of typing and using the mouse over a six month period. The diagnosis rendered was a repetitive strain injury of the right wrist (“flexor carpi ulnaris most prominently”).

On November 10, 2006, the treating physiotherapist reported that the worker had numbness and tingling into the 4th and 5th digits. She stated the worker’s pain was aggravated by prolonged mouse use especially with no wrist pad. The diagnosis rendered was flexor carpi ulnaris, tendonitis.

On November 20, 2006, the worker advised a WCB adjudicator that he experienced minor discomfort in his wrist in April 2006 and that the pain increased in October 2006 with an increase in workload. He said he worked on the computer all day and performed typing, mouse and phone work.

In response to a request by the adjudicator, a WCB medical advisor reviewed the file information on November 30, 2006. The specific questions asked were:

“In your opinion:

1. In general, what are the common causes for this type of injury?
2. Are there workplace factors that are generally associated with this type of injury?
3. Comments?”

The medical advisor’s response was as follows:

“File reviewed in its entirety. The diagnosis appears to be either a tendinosis or an ulnar neuropathy. The physician reports findings more consistent with a tendinosis. This diagnosis, however, would not account for the symptoms radiating into the 4th and 5th digits as reported by physio (in notes dated Nov. 10/06). The findings described by physio are more consistent with ulnar neuropathy. For either of these diagnoses, they may arise idiopathically although if workplace factors/actions are implicated, there has been some relationship demonstrated with forceful tasks performed repetitively.

Please let me know if further information is required.”

On November 30, 2006, the claim for compensation was denied by primary adjudication as it was unable to establish that the worker’s work duties involved the anatomical movements required for the development of flexor carpi ulnaris, tendonitis.

On April 26, 2007, a worker advisor provided the WCB with a report from the treating physician dated April 9, 2007 which states :

1. The most probable diagnosis of the worker’s condition was occupational repetitive strain injury of the right flexor carpi ulnaris tendon at the point of insertion; and
2. There is a relationship between the worker’s symptoms and his stated work duties.

In support of his opinion, the physician indicated that the worker had an increase in his workload from time to time as he was “covering for a workmate” and that the worker had concerns about the ergonomics of his work environment.

In a decision dated May 7, 2007, the adjudicator confirmed the decision made on November 30, 2006. She indicated that flexor carpi ulnaris/tendonitis can occur idiopathically and with activity such as repetitive forceful movements of the wrist. She found that the worker’s work day consisted mostly of typing, mouse and phone work and that these work activities did not involve forceful movements of the wrist. On May 25, 2007, the worker advisor appealed the decision to Review Office.

On July 5, 2007, Review Office confirmed that the claim was not acceptable. It accepted the WCB medical advisor’s opinion that the clinical findings supported the diagnosis of tendinosis. It also accepted that the worker’s work duties were repetitive and that his workload may have increased in October 2006. It did not find, however, that the worker’s job duties involved the anatomical movements required for the development of tendinosis and therefore the evidence did not establish that the worker suffered personal injury by accident arising out of and in the course of his employment.

In a submission to a WCB supervisor dated September 13, 2007, the worker advisor requested the convening of a Medical Review Panel (“MRP”) in accordance with subsection 67(4) of the Act. This request was based on the position that there was a difference of medical opinion between the worker’s treating physician and WCB medical advisor. She noted that the treating physician supported a relationship between the diagnosed condition and the worker’s employment.

In a letter dated September 20, 2007, a WCB supervisor denied the worker advisor’s request for an MRP. The supervisor indicated there was no difference in medical opinion as to the different diagnoses offered for the worker’s wrist condition. What was in dispute was whether there was a causal relationship between the diagnoses and the worker’s employment. She stated,

“The question, as it relates to the degree of occupational exposure and its relationship to the development of the conditions diagnosed, is an adjudicative matter not a medical issue. Based on the fact that the decision rendered was a legal test under Section 1(1) and 4(1) of the WC Act and not a medical test, your request for a Medical Review Panel has been denied.”

In a submission to Review Office dated October 11, 2007, the worker advisor appealed the WCB’s decision to deny an MRP. She asked that an MRP be convened to address whether the worker’s right wrist problems were related to his work duties. She submitted that the differing opinions of the treating physician and the WCB medical advisor have established the issue of causality as a medical matter and that the case met the remaining conditions set out under section 67(4) of the Act.

In its decision dated November 14, 2007, Review Office noted that the WCB medical advisor did not provide a medical opinion specifically regarding whether there was a causal relationship between the worker’s job duties of keyboarding and using a mouse and the diagnoses attributed to the worker. It stated that primary adjudication was of the view that section 4(1) of the Act had not been met as they were of the opinion that the worker’s injury did not arise out of and in the course of his employment. The adjudicator opined that the worker’s job duties did not involve the anatomical movements required for the development of the condition. Review Office was therefore of the opinion that the issue of whether there was a causal relationship between the worker’s job duties and the right wrist condition was an adjudicative matter and not a medical issue. It therefore confirmed that an MRP should not be convened. On February 26, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 12th day of June, 2008