Decision #98/08 - Type: Workers Compensation
Preamble
The worker injured her right foot/ankle in a work related accident on June 12, 2000. The claim for compensation was accepted by the Workers Compensation Board (“WCB”) and various types of benefits and services were provided to the worker.
On February 14, 2007, a solicitor, acting on the worker’s behalf, contended that a difference of medical opinion existed between the worker’s treating physician and a WCB medical advisor and a Medical Review Panel (“MRP”) was requested. The request for an MRP was denied by both primary adjudication and Review Office on the grounds that the treating physician’s opinion outlined on December 27, 2005 did not meet the requirements of subsection 67(1) or 67(4) of The Workers Compensation Act (the “Act”). The solicitor disagreed and filed an Application to Appeal with the Appeal Commission and a hearing was held July 9, 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 be convened pursuant to subsection 67(4) of the Act.Decision: Unanimous
Background
On June 12, 2000, the feet of a metal roof ladder slipped while the worker was climbing down from it causing her to fall approximately eight feet. The worker was diagnosed with a comminuted fracture of the right calcaneous and later underwent three surgical procedures to her foot and ankle. The worker has since been provided with vocational rehabilitation benefits and has been considered capable of full time employment.
On March 8, 2005, an orthopaedic specialist reported that the worker had a lot of problems with chronic pain in her right foot. The worker reported a burning pain along the lateral aspect of her foot where the multiple debridement was performed. She had pain in her heel and some discomfort anteriorly over the ankle and pain into the forefoot. The worker indicated that she was able to walk a few hundred feet at most. The specialist reported that the worker’s ankle range of motion was actually normal. X-rays which were brought in by the worker showed no hardware, a well healed subtalar fusion and no real abnormalities about her ankle joint. The specialist was unable to offer anything surgical for the worker. He said there seemed to be a lot of chronic pain and some of this was neurogenic in nature.
In a memo dated May 18, 2005, a WCB orthopaedic consultant outlined the following permanent restrictions for the worker:
· To avoid any lifting or carrying.
· Limited walking with crutches as tolerated.
· Limited standing as tolerated.
· Limited use of stairs.
In a letter from the treating physician dated May 9, 2005, she reported that the worker complained of constant pain in her right foot which increased with regular daily living activities. The worker required rest during the day to relieve some of her pain. The worker was reluctant to take painkillers as the worker had to undergo abdominal surgery in 2002 as a result of complications she suffered due to the intake of painkiller medication. In the opinion of the treating physician, the worker’s work capacity was limited due to her work related injury. It was felt that the worker was capable of some work provided she worked reduced hours with restrictions.
On August 4, 2005, primary adjudication obtained an opinion from the WCB’s healthcare branch as to whether there were any objective findings that would preclude the worker from being able to perform full time employment as a receptionist/switchboard operator. On August 10, 2005, the WCB medical advisor opined that the worker was able to perform full time employment based on the restrictions that were in place.
On February 14, 2007, a solicitor, acting on the worker’s behalf, disagreed with the WCB’s position in terms of the worker’s employability and restrictions. Based on new medical information dated December 27, 2006, the solicitor contended there was a difference of medical opinion between her physician and the medical advisor of the WCB. It was requested that the matter be referred to an MRP pursuant to section 67 of the Act.
In her letter dated December 27, 2006, the treating physician stated that she disagreed with the WCB medical advisor’s opinion that the worker was capable of working full time. The worker was very limited in terms of standing, walking, sitting for extended periods of time, lifting, carrying and usage of stairs. She said the worker continued to suffer from chronic pain that was not controlled. In her opinion, this was a major disability. She believed that the worker was limited to in-home part time employment of no more than 8 to 12 hours per week.
On June 21, 2007, a sector services manager determined that an MRP would not be convened as the case did not satisfy the requirements of subsection 67(4) of the Act since a difference of opinion as defined by subsection 67(1) of the Act had not been established. As a rationale for his decision, the unit manager noted that except for the reference to sitting, the restrictions suggested by the attending physician were similar to those restrictions established by the WCB. There was no supporting statement made about why the worker would have a sitting restriction when the injury was to her right foot. There was no reference as to how the worker was prevented from working full time hours in an occupation respecting these restrictions. There was also no reference to the rationale used to establish how the treating physician determined the worker was restricted to only in-home part time employment of no more than 8 to 12 hours per week.
On January 31, 2008, the solicitor appealed the above decision to Review Office. He stated that the treating physician came to the very informed opinion that the worker “is limited to in-home part time employment of no more than 8 to 12 hours per week.” He stated the opinion of the treating physician was far more comprehensive than that of the WCB medical advisor and it was based upon ongoing and continuing examinations with the patient over a period of numerous months. Based on these factors, he stated that there was clearly a difference of medical opinion and that an MRP was warranted.
On February 13, 2008, Review Office noted that the information provided by the treating physician in her December 27, 2005 report did not meet the requirements of subsection 67(1) of the Act therefore an MRP would not be convened in accordance with subsection 67(4) of the Act. In support of its position, Review Office stated:
“…the restrictions recommended by the worker’s physician are similar to the restrictions established by the board, with the exception of the reference to sitting. Sitting would not be considered a restriction due to the heel/ankle injury and there were no reports provided in support of this conclusion to the contrary. Thus, there is no difference in the restrictions between that recommended by the WCB medical advisor and that of the worker’s physician. The worker’s physician has not provided any reasons why the worker is only capable of part time employment and not full time employment.”
On March 25, 2008, the solicitor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
The worker has asked that an MRP be convened pursuant to subsection 67(4) of the Act. This subsection provides that where there is a difference of opinion on a medical matter between a physician treating the worker and a WCB medical advisor which affects the worker’s entitlement to compensation, an MRP must be convened. Subsection 67(1) defines an opinion as “a full statement of the facts and reasons supporting a medical conclusion.”
Worker’s Position
The worker was represented by legal counsel who made a submission on the worker’s behalf.
The worker’s representative submitted that the medical dispute on this file is over the extent of the worker’s disability. He noted that the attending physician disagreed with the restrictions that were recommended by the WCB medical advisor. The attending physician opined that the restrictions were greater and the worker’s capabilities were less. The attending physician also disagreed with the ability of the worker to work.
The representative noted that the attending physician looked at the same tests as the WCB but in addition, she met with and treated the worker for many years. The physician advised that she saw the worker 16 times before the injury and another 25 times after the injury. He submitted that the attending physician relied upon a number of objective indices, has reviewed the medical reports including those of the specialists who performed operations and the WCB medical advisors, she came to a conclusion and provided her opinion.
The representative submitted there is a difference of opinion and that the worker is entitled to have an MRP in accordance with Section 67 of the Act.
The representative referred to jurisprudence dealing with the interpretation of legislation and standards for review of tribunal decisions. He also referred to an Appeal Commission decision which granted an MRP pursuant to subsection 67(4) of the Act.
Analysis
The issue before the panel is whether an MRP should be convened pursuant to subsection 67(4) of the Act. For this appeal to be successful, the panel must find that there is a difference of opinion between a WCB medical officer and a physician selected by the worker. The difference of opinion must be on a medical matter affecting compensation and must meet the definition of opinion in subsection 67(1) of the Act.
The panel notes that the difference of opinion in this case relates to the restrictions and the amount of hours the worker was capable of working. The WCB medical advisor was of the view that the worker could work full time while the attending physician was of the view that the worker could work limited hours, no more that 8 to12 hours per week. In arriving at this opinion, the attending physician relied on factors beyond those used by the WCB. She noted that the worker suffers from chronic pain which is uncontrolled and concluded this prevents the worker from working full time.
The panel notes that the designation of restrictions can impact on entitlement to benefits in adjudicating claims. The panel also notes that it is a standard practice to obtain advice on restrictions from a medical source.
The panel finds, on a balance of probabilities that the requirements of subsection 67(4) of the Act have been met in that there is a difference of opinion on a medical matter affecting compensation. The worker’s appeal is allowed and an MRP shall be convened.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 1st day of August, 2008