Decision #97/08 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for pain in both hands that he attributed to his work duties as a laborer. The claim for compensation was accepted and the worker was paid wage loss benefits up until August 6, 2004 when it was determined that he had recovered from the effects of his injuries. It was subsequently argued by the worker’s solicitor that there was a difference of medical opinion between a WCB medical advisor and an occupational health physician which warranted the convening of a Medical Review Panel (“MRP”) in accordance with subsections 67(1) and 67(4) of The Workers Compensation Act (the “Act”). The request to convene an MRP was denied by both primary adjudication and Review Office. The worker’s solicitor disagreed and filed an application to appeal to the Appeal Commission and an oral hearing was held on July 8, 2008.

Issue

Whether a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision

That a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision: Unanimous

Background

On November 24, 2003, the worker was assembling product when his hands locked. He described pain in both hands, worse on the right, which radiated to his arms and shoulders. Initial medical reports showed that the worker was sent for nerve conduction studies (“NCS”) to rule out carpal tunnel syndrome. Cervical spine x-rays taken January 29, 2004 revealed no abnormalities. On February 10, 2004, NCS were done and were considered to be normal.

On April 2, 2004, a neurologist reported that the worker presented neurologically with complaints referable to his right hand. He had a scar on the volar aspect of his right wrist but the worker could not remember where it came from. At the end of the assessment, the neurologist was unable to find anything wrong neurologically and could not explain the worker’s presenting complaints.

In May 2004, the worker was referred to a hand specialist who noted that the worker had a very tender trapezius and sternomastoid muscles and he wondered whether this was from myofascial pain involving the shoulder girdle. He referred the worker to the Rehabilitation Hospital for an assessment.

In July 2004, the treating physician reported that the worker’s pain was worse because of multiple complaints and that the worker was referred for another set of NCS.

On July 12, 2004, a WCB medical advisor examined the worker’s cervical spine, both shoulders, elbows and hands. Under Discussion and Opinion, the medical advisor stated the following:

“Examination this morning does not establish any clear tissue injury related to the claimant’s workplace. The claimant’s specific complaints appear to be centered mainly in his right forearm and related also to his shoulder and neck. The normal clinical examination could not establish any objective evidence of injury in these areas. There are some minor muscular discomforts in the claimant’s neck as indicated in the text. There is no clear neurological deficit in the arm, forearm or the hand. The specific discomfort in the area of the forearm at the common palmaris tendon is somewhat non-specific and does not appear to relate to any maneuver performed by the examiner.”

In a decision dated July 29, 2004, the worker was advised that in the opinion of the WCB, he had recovered from the effects of his compensable injury and was not entitled to wage loss benefits beyond August 6, 2004.

On May 17, 2006, the worker appealed the WCB’s decision that he had recovered from the effects of his compensable injury. Included with his submission were three medical reports dated April 26, 2004, September 29, 2005 and October 26, 2005.

The physician’s April 26, 2004, examination findings noted full range of motion of the hand, no evidence of atrophy in the thenar or hypothenar musculature, positive Phalen’s test and some tenderness on palpation of the anatomical snuff box.

In the occupational health physician’s report of September 29, 2005, he concludes that the worker’s physical findings relate to a pattern of chronically held muscle tension and irritability that likely developed in the course of his pain condition associated with rapid assembly work in his former workplace, significant myofascial referral from the neck and shoulder into the hand and arm and a reflex sympathetic dystrophy type syndrome.

The October 26, 2005, report from the family physician diagnosed the worker’s condition as reflex sympathetic dystrophy.

Following review of the new medical information along with the worker’s May 2006 submission, a WCB case manager determined on May 29, 2006, that there was no new evidence to warrant a change in the decision dated July 29, 2004.

On October 23, 2007, the worker’s solicitor provided the WCB with a report from the occupational health physician dated September 13, 2007. He submitted that there was a difference of medical opinion between the occupational health physician and the WCB medical advisor as to the worker’s current medical conditions which warranted the convening of an MRP based on subsection 67(4) of the Act.

In his report to the solicitor dated September 13, 2007, the occupational health physician indicated that he last saw the worker on May 24, 2007. By his assessment, the worker continued to have significant ongoing impairments and partial disabilities that interfered with him resuming university courses, with handwriting and computer work. He felt there was an underlying myofascial, musculo-tenderness condition resulting from repetitive overuse.

Prior to considering the solicitor’s request for an MRP, primary adjudication requested and obtained additional medical information. This consisted of a report by a physical medicine and rehabilitation specialist report dated August 24, 2004. It stated that based on history and physical examination, which lasted approximately one hour and 15 minutes, “we were not able to find any abnormalities (musculoskeletal and neurologic systems) which could potentially be the cause of the patient’s symptoms. The patient does have some tenderness involving certain spinal ligaments and muscles, however, there were no signs of flare after trying to reproduce the patient’s symptoms.”

On January 2, 2008, it was determined by primary adjudication that after reviewing all the available information, there was no new evidence to warrant a change in the initial decision. It was determined that the reports by the occupational health physician from 2005 and 2007 did not constitute a full statement of the facts and reasons supporting a medical conclusion. It determined that the requirements of subsections 67(1) and 67(4) of the Act had not been met and therefore an MRP would not be convened. The decision was appealed by the worker’s solicitor on January 18, 2008 and the case was forwarded to Review Office for consideration.

On February 5, 2008, Review Office determined that an MRP should not be convened. Review Office noted that there had been numerous positions advanced as to the nature of the worker’s persisting complaints. It considered that the medical report from the occupational health physician did not address them to the point where it meets the definition of an opinion. Review Office therefore concluded that there was no basis to convene an MRP.

In March 2008, the solicitor filed an Application to Appeal with the Appeal Commission and a hearing was convened to consider the matter.

Reasons

Applicable Legislation and Policy

The worker has requested that an MRP be convened under subsection 67(4) of the Act. The relevant provisions of the Act are subsection 67(4) and 67(1).

Subsection 67(4) 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.

Subsection 67(1) defines opinion as “a full statement of the facts and reasons supporting a medical conclusion.”

Worker’s Position

The worker was represented by legal counsel at the hearing. The position put forward on behalf of the worker was that the legislation entitles any worker to an MRP if they can first show that there is a conflict or difference in medical opinion between the attending physician and one of the WCB’s physicians. The second element to be shown is that there is a medical opinion as defined in the Act, meaning a full statement of the facts and reasons supporting the medical conclusion. On the first issue, it was noted that Review Office already acknowledged that the September 13, 2007, report of the occupational health physician was contrary to the WCB medical advisor’s opinion. On the second issue, it was submitted that report of the occupational health physician clearly met the criteria of a full set of reasons supporting an opinion. In the report, the occupational health physician gave not only his own observations, but considered the objective evidence of EMG, x-rays, and nerve conduction tests, as well as the medical reports of a number of other physicians. As the requirements as set out by the Legislature had clearly been met, the worker was entitled to an MRP as a right. The panel was urged to adopt a liberal approach to interpreting the Act in favour of the injured worker.

Employer’s Position

A representative from the employer was present at the hearing. While the representative indicated that the employer had concerns regarding entitlement to benefits, she was advised that the issue of entitlement was not presently before the panel. The employer did not take a position on the issue of whether an MRP should be convened.

Analysis

To accept the worker’s appeal we must find on a balance of probabilities that the medical opinion of the WCB medical officer differs from the opinion of the worker’s physician within the meaning of subsections 67(4) and 67(1) of the Act. We are able to make that finding.

The September 13, 2007, report of the occupational health physician indicates that he had available to him medical tests and physician exam reports from the WCB file, a September 12, 2005 submission to the Manitoba Human Rights Commission, a February 5, 2005 psychiatric assessment, an October 22, 2004 report from a neurologist, a September 15, 2004 internal medicine assessment, and an August 24, 2004 physical medicine assessment. We also know from the occupational health physician’s September 29, 2005, report that he has seen the worker since September 2005 for assessment and management advice. On May 24, 2007, he had opportunity to reassess the worker. In the September 13, 2007, report, the occupational health physician describes the development of significant muscle and tendon related pains from the highly repetitive and fast paced work the worker did in a soldering position during the last three months of his employment. While it was initially localized to the thumb and wrist, it later progressed into his arm, neck and shoulder girdle. The report then describes the development, in direct consequence to the pain and associated guarding a pattern of dystonia, muscle flinching and pain avoidance behaviours. By the occupational health physician’s assessment, in September 2007 the worker continued to have significant ongoing impairments and partial disabilities that interfered with his functioning. It was his opinion that the worker has an underlying myofascial, musculo-tenderness condition resulting from repetitive overuse.

To summarize, it is clear that the occupational health physician is of the opinion that the worker is continuing to suffer from pain and disability and that his condition is related to the repetitive and fast paced work that the worker reported he performed in his employment.

The panel agrees with legal counsel’s submission that the September 13, 2007, report contains a “full statement of facts and reasons supporting a medical conclusion” and meets the criteria set out in the Act.

The July 12, 2004, examination notes of the WCB medical advisor state that as at the time of his examination, while the worker did complain of pain and discomfort in various regions, the examination did not establish any clear tissue injury related to the worker’s workplace. There was no objective evidence of injury or neurological deficit. A WCB memorandum on file by the adjudicator dated March 29, 2006, indicates that after consultation with the WCB medical consultant, it was determined that based on the call-in exam, there was no evidence of disability. It would appear that the adjudicator relied on the examination notes and his consultation with the medical advisor to decide that the worker had recovered from the effects of his compensable injury and that there would be no further responsibility for the worker’s claim.

In the panel’s view, to the extent that the occupational health physician felt that there remained symptomatology related to the repetitive duties and the WCB medical advisor felt that there was no longer any evidence of disability, there is a difference of medical opinion affecting entitlement to compensation. Accordingly, the requirements of subsection 67(4) are met and an MRP should be convened. The worker’s appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of August, 2008

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