Decision #119/09 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) which denied the request for a Medical Review Panel under subsection 67(4) of the Act. A file review was held on October 20, 2009 to consider the matter.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 April 13, 2006, the worker injured his low back region during the course of his employment as a homecare attendant. The compensable diagnosis accepted by the WCB was a low back strain and the worker received treatment which included physiotherapy and medication. A CT scan dated April 21, 2006 revealed a moderate broad central disc bulge at the L5-S1 level with no evidence of spinal stenosis.
Ongoing medical reports revealed that the worker was showing signs of abnormal pain behaviors which prompted an assessment by the WCB’s Pain Management Unit (“PMU”) on February 1, 2007. The differential diagnoses outlined were as follows: pain disorder associated with psychological factors and a general medical condition, hypochondriasis and chronic pain syndrome. It was indicated that Axis II factors appeared to play a significant role in the worker’s functioning.
At a PMU case conference held on March 22, 2007, it was determined by the PMU’s medical advisor and psychological consultant that the worker did not meet the WCB’s criteria for chronic pain syndrome as there were pre existing congenital/developmental personality factors present which contraindicated chronic pain syndrome. It was also the opinion of the PMU consultants that the worker did not meet the criteria for a pain disorder associated with psychological factors and a general medical condition, as there was no general medical condition that was causally related to the compensable injury.
On June 20, 2007, a clinical psychologist reported that the worker’s presentation was consistent with abnormal pain behavior and a diagnosis of pain disorder associated with psychological factors and a general medical condition.
On September 18, 2007, a second clinical psychologist reported that the worker was referred to him as part of a work hardening program. He stated that the worker “presents as an individual experiencing very high levels of depressive and anxiety based symptomatology. This, based on reviewed medical information and assessment information to date, may also be associated with some Axis-II personality related issues…”.
The WCB arranged for the worker to attend a psychiatrist for treatment. In his report dated November 9, 2007 the psychiatrist presented the following DSM-IV diagnoses:
“Axis 1 Pain Disorder associated with Psychological Factors in a General Medical Condition
Anxiety Disorder due to Chronic Low Back Pain with Generalized Anxiety and Panic Attacks
Mood Disorder secondary to Chronic Pain with Depressive and Anxious Features
Axis II Cluster C (Avoidant and Dependent) Personality Traits
Axis III Chronic Low Back Pain
Axis IV Injury of April 13, 2006
Axis V GAF = 50.”
At the request of primary adjudication, the case was reviewed by the WCB’s PMU psychological consultant who gave the following opinion on November 29, 2007:
“Axis II (personality disorder) factors, specifically Cluster C (dependent and avoidant) were playing a significant role in this worker’s functioning. Dr. (psychiatrist) also diagnosed him with this type of personality disorder.
Personality disorders are longstanding, dysfunctional, patterns of behaving and of relating to others. By definition, they are not caused by an injury in adulthood, unless there has been some injury to the brain…(the worker’s) psychological condition (i.e. personality disorder) is pre-existing…these pre-existing psychological features play a significant role in his functioning, in his delayed recovery, and in his quite dramatic, inconsistent, and variable pattern of symptoms…I wish to note that there is no DSM diagnosis of Anxiety Disorder due to Chronic Pain, or Mood Disorder due to Chronic Pain, although certainly depression has been shown to be associated with chronic pain and a clinician can opine about the genesis of an anxiety or mood disorder.”
On January 22, 2008, the WCB’s PMU psychological consultant was asked to review the file and answer a number of questions related to the worker’s psychological condition. The consultant stated, in part, that the worker continued to suffer from a pain disorder; however, “based on medical opinions, the Pain Disorder is associated solely with psychological factors”. The consultant later stated, “…the current Pain Disorder associated with Psychological Factors is not related to the C.I.”.
On March 4, 2008, the worker was advised of the WCB’s position that he had recovered from his low back strain injury of April 2006 and that his ongoing medical condition was related solely to his pre-existing psychological condition, which was not caused or worsened by the accident at work.
A further decision letter was written to the worker dated June 20, 2008. Following review of submitted reports from the treating psychologist dated May 7, 2008 and the treating psychiatrist dated May 26, 2008, the case manager confirmed his earlier decision dated March 4, 2008 that the worker had recovered from his 2006 back injury and that any symptoms he experienced were related to a pre-existing psychological condition and not to the compensable injury.
On July 4, 2008 a worker advisor, acting on the worker’s behalf, appealed the case manager’s decision to Review Office. The worker advisor submitted that the evidence “weighs in favour of the worker in establishing a relationship between the worker’s psychological difficulties and the effects of the compensable injury.”
On September 9, 2008, Review Office confirmed that the worker’s psychological condition was not related to the compensable injury. Review Office concluded that the worker had a pain disorder associated solely with psychological factors. It did not accept the diagnosis of a pain disorder with a general medical condition as it was of the opinion that there was no medical evidence to support that there was a general medical condition still causally related to the compensable injury.
On November 3, 2008, the worker advisor provided Review Office with a report from the treating psychiatrist dated October 23, 2008.
In the report, the treating psychiatrist opined that:
· When he first met the worker on November 9, 2007, he felt that the worker had three Axis 1 disorders: pain disorder associated with psychological factors in a general medical condition, an anxiety disorder due to chronic low back pain, and a mood disorder secondary to chronic pain.
· Aside from a brief encounter with a school psychologist, there is nothing in the worker’s history that indicates significant pre-existing personality factors.
· The compensable injury directly caused the Axis I disorders, but the compensable injury probably aggravated some pre-existing personality factors that we can neither prove nor document.
In claim notes dated November 10, 2008, the WCB psychiatric consultant noted: “In the past, the WCB consultants opinion is that the claimant does have Pain Disorder with psychological symptoms, but the diagnosis is not related to the compensable injury”. She also states: “The diagnosis of personality disorder is considered unrelated to the claim. A personality disorder describes a longstanding pattern of maladaptive behavior, begins by adolescence, and is diagnosed in adults.”
In a decision dated December 17, 2008, Review Office confirmed its previous decision that the worker’s psychological condition was not related to the compensable injury. Review Office agreed with the WCB’s healthcare consultants that the worker did have pain disorder with psychological symptoms but that the diagnosis was not related to the April 13, 2006 compensable injury.
On January 8, 2009, the worker advisor requested a Medical Review Panel (“MRP”) under subsection 67(4) of The Workers Compensation Act (the “Act”). The worker advisor referred to the following opinion expressed on May 26, 2008 by the worker’s treating psychiatrist:
“The injury was real and appeared relatively minor, but his pain and disability exceeded the objective clinical and radiologic findings. As a result of his ensuing disability, he developed a Major Depressive Disorder and an Anxiety Disorder…[the worker] meets DSM-IV diagnostic criteria for a Pain Disorder associated with both psychological factors and a General Medical Condition – chronic (duration of six months or longer).
Therefore, in my professional opinion, as [the worker’s] treating psychiatrist, [the worker’s] compensable injury can be directly linked to his current symptoms and present disability. (original emphasis) (May 26/08)”
The worker advisor noted the WCB’s psychological consultant’s opinion of January 22, 2008:
“…it is likely that he continues to experience Pain Disorder. However, based on medical opinions, the Pain disorder is associated solely with psychological factors, as no medical condition has been identified by physicians, including [the treating psychiatrist] …Thus, in my opinion, the current Pain Disorder associated with Psychological Factors is not related to the C.I. [compensable injury].”
The worker advisor indicated that the treating psychiatrist’s report of October 23, 2008 clarified his diagnosis and its relationship to the compensable injury. He confirmed the possibility of pre-existing factors; however, he was of the opinion that the compensable injury, at minimum, caused an aggravation of those pre-existing factors which remain ongoing to date. It was submitted that the psychiatrist had presented an opinion pursuant to the meaning defined under subsection 67(1) of the Act.
The worker advisor submitted that there was a clear difference of medical opinion with respect to a relationship between the compensable injury and the worker’s psychological difficulties. The difference of opinion was on a medical matter and plainly affected the worker’s entitlement to benefits.
On January 22, 2009, a sector services manager indicated that an MRP would not be convened. The manager stated that there was no difference of medical opinion as it related to the presence of the worker’s diagnosis of pain disorder associated with both psychological factors and a General Medical Condition-chronic (duration of six months or greater). “What is in dispute, however, is whether there is a causal relationship between this diagnosis and the compensable injury of April 13, 2006.” The manager referred to the following medical opinion that was made by the treating psychiatrist: “the compensable injury probably aggravated some pre-existing personality factors that we can neither prove nor document…it is probable that [the worker’s] psychological difficulties will and are persisting even after the physical effects of the compensable injury have resolved. All we have to go on is the patient’s subjective experience of his pain.” The manager indicated that the treating psychiatrist did not provide a full statement of facts and reasons to support a causal relationship between the worker’s psychological condition and the April 13, 2006 work injury.
On February 17, 2009, the worker advisor appealed the above decision to Review Office. It was submitted that an MRP was warranted to resolve whether there was a relationship between the worker’s psychological difficulties and the compensable injury of April 13, 2006. She noted that the WCB’s psychological consultant rejected the presence of such a relationship, attributing the worker’s psychiatric disorder solely to pre-existing personality factors. In contrast, the treating psychiatrist was of the opinion that the compensable injury, at minimum, aggravated pre-existing personality traits to produce the worker’s current level of disability. The worker advisor felt that the psychiatrist’s medical conclusion was supported by his review of the worker’s psychosocial history, as set out in the PMU’s assessment of February 2007 as his professional expertise he brought to a diagnostic interpretation of the worker’s subjective experiences of pain and disability. She indicated that the psychiatrist’s use of the term “probably” did not detract from his conclusions and satisfied the WCB’s standard of proof.
On March 12, 2009, Review Office determined that a MRP would not be convened. Review Office referred to reports by the psychiatrist dated May 26, 2008 and October 23, 2008. Review Office was of the opinion that a full statement of the reasons to support the expressed opinion that there was a causal relationship between the diagnosis and compensable injury had not been provided.
On May 4, 2009, the worker advisor appealed Review Office’s decision of March 12, 2009 to the Appeal Commission and a file review was arranged.
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 subsections 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 assisted by a worker advisor with the appeal. The position put forward on behalf of the worker was that the WCB relied on the opinions of two of its medical officers to deny the worker entitlement to compensation benefits. The WCB psychological consultant’s opinion was that the worker was suffering from a Pain Disorder associated with Psychological Factors, which were not considered to be related to the compensable injury. Instead, the psychological consultant was of the opinion that the condition was solely attributable to a pre-existing personality disorder (November 29, 2007 and January 22, 2008 reports). This opinion was reiterated by the WCB psychiatric consultant in her claim notes of November 10, 2008.
In contrast, the worker’s treating psychiatrist acknowledged the likelihood of some pre-existing personality traits or a predisposition to anxiety and mood disorders, but concluded that these were only minor. It was his opinion that these minor pre-existing personality factors were aggravated by the compensable injury to cause the worker’s current disabling psychological difficulties (October 23, 2008 report). It was submitted that the treating psychiatrist applied his clinical expertise in interpreting the psychosocial history and subjective experiences described by the worker and that he has offered a valid and fully reasoned opinion in support of his diagnosis, such that his opinion satisfied the definition under subsection 67(1) of the Act.
Employer’s Position
The employer did not take a position on the issue being appealed.
Analysis
To accept the worker’s appeal, we must find on a balance of probabilities that the medical opinion of a 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.
At the outset, we note that the WCB psychological consultant who rendered the opinions of November 29, 2007 and January 22, 2008 is a registered clinical psychologist and is not a licensed physician. Subsection 67(4) requires there to be a difference in opinion between a medical officer of the board and a physician selected by the worker. In the panel’s opinion, the term “medical officer of the board” is wide enough to encompass any healthcare practitioner who serves as a medical consultant or advisor to the board, including, as in this case, a clinical psychologist. The fact that the drafters of the Act specifically declined to state that the WCB’s practitioner must be a physician (which is a defined term in the Act) leads us to believe that other healthcare providers may qualify as a “medical officer of the board”. In practice, the panel understands that the Board regularly consults with a number of different types of health care advisors with special expertise, including physiotherapists, chiropractors, and clinical psychologists.
After reviewing the medical reports on file, the panel agrees with the worker advisor’s submission that there is a difference of opinion between the WCB psychological and psychiatric consultants, and the treating psychiatrist. We find that there is a difference of opinion both with respect to diagnosis and with respect to whether or not there is a causal relationship between the diagnosis and the compensable injury.
With respect to diagnosis, while there appears to be consensus between the WCB consultants and the treating psychiatrist that the worker has a “Pain Disorder”, there is a difference in opinion as to whether the Pain Disorder is associated solely with psychological factors (as opined by the WCB consultants) or whether the Pain Disorder is associated with psychological factors in a general medical condition. Further, the WCB consultants do not acknowledge the other two Axis I disorders of Anxiety Disorder due to chronic low back pain and Mood Disorder secondary to chronic pain, which were identified by the treating psychiatrist as being part of the diagnosis.
With respect to causation, there is a clear difference in opinion as to whether the worker’s disabling psychological condition is related to the compensable injury or whether it is attributable to pre-existing psychological factors.
Both of the differences of opinion affect the worker’s entitlement to compensation.
With respect to the sufficiency of the treating psychiatrist’s report of October 23, 2008, the panel is of the view that given the treating psychiatrist’s references to the worker’s psychosocial history, obtained through both review of previous reports and clinical assessment, we are satisfied that the report contains a “full statement of facts and reasons supporting a medical conclusion” and meets the criteria set out in the Act.
For the foregoing reasons, the panel finds that the requirements of s.67(1) and 67(4) are met and a Medical Review Panel should be convened. The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 15th day of December, 2009