Decision #21/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which denied his request to convene a medical review panel under subsection 67(4) of The Workers Compensation Act (the "Act") in relation to the WCB's refusal to pay for the costs associated with a mobile scooter. A file review was held on January 4, 2011 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 not be convened pursuant to subsection 67(4) of the Act.Decision: Unanimous
Background
On October 31, 1989, the worker suffered an injury to his right knee in a work related accident. The diagnoses accepted as compensable by the WCB were as follows: enhanced pre-existing osteoarthritis right knee, medial meniscal tear of the right knee with genu varus and myocardial infarction which was considered a secondary injury due to the worker's prolonged use of medication related to his right knee injury. The worker also has the following non-compensable diagnoses: coronary artery disease, advanced osteoarthritis of the back, both hips, left knee replacement completed and left achilles tendinosis. The worker had right knee restrictions to avoid prolonged standing/walking, walking over rough ground, avoid climbing stairs, kneeling and crouching.
On March 9, 2010, the worker's representative wrote to a WCB sector services manager to request the convening of a Medical Review Panel ("MRP") pursuant to subsection 67(4) of the Act. The representative noted that the entitlement issue was related to a motorized scooter as the worker had fallen on four occasions and risked a subsequent injury.
In a letter to the worker dated March 23, 2010, the sector services manager indicated that she was unable to grant an MRP on the basis that the purchase of a motorized scooter did not represent a 'medical matter'. She stated:
The medical matter central to the recommendation of a scooter is your impaired mobility, as well as the relationship of the impaired mobility to the compensable right knee injury and secondary acceptance of a series of heart attacks sustained in 2007.
[Four treating physicians] all reference your impaired mobility due to both the compensable right knee injury and the non-compensable osteoarthritis in your back, hips and left knee. WCB is in agreement that you are experiencing impaired mobility as a result of both your right hip injury as well as for other non-compensable factors. There is no difference in medical opinion regarding your condition and resulting mobility concerns.
To assist with your accepted right knee condition, [worker's treating physician) has prescribed a replacement knee brace, continued use of the walker and goes on to state that you may benefit from the use of a scooter to enhance your quality of life. You also indicate that you have been referred for injections to your right knee to assist with pain and mobility. These injections are yet to be arranged.
There is no question you have an impairment of your right knee and have challenges with mobility resulting from a combination of your right knee condition and other non-compensable factors. [Case manager], recently approved a new right knee brace combined with the ongoing use of the walker, to aid in your mobility. The scooter is declined as the case manager has determined given the totality of the evidence that this medical aid cost is not fully related to your right knee injury and heart attacks, nor would this cost be warranted on a medical basis.
The level of medical aid (e.g. bracing, walker, scooter, wheelchair) the WCB is prepared to accept in relation to the compensable injuries is an adjudicative decision and not a medical matter. The level of medical aid we are prepared to accept to assist with your mobility is the cost of the bracing and walker.
Given the cost of the scooter is not a medical matter under section 67(3) of the Act, I am unable to grant your request for an MRP.
On April 21, 2010, the worker appealed the above decision to Review Office.
On June 1, 2010, Review Office confirmed that an MRP should not be convened. Review Office outlined the opinion that the decisions related to the provision of items such as scooters are administrative in nature rather than decisions pertaining to "a medical matter." Review Office acknowledged that input may be sought from healthcare professionals before making such a decision, but did not consider that this changed its character. On June 10, 2010, the worker appealed Review Office's decision 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."
Analysis
To accept the worker’s appeal we must find on a balance of probabilities that the medical opinion of a medical officer of the WCB differs from the opinion of the worker’s treating physician within the meaning of subsections 67(4) and 67(1) of the Act. We are unable to make that finding.
In the present situation, the compensation the worker has requested from the WCB is a motorized scooter to assist with his mobility. It is important to note that the determination of the worker's entitlement to a motorized scooter is, and remains, an adjudicative decision. However, to assist in making this decision, a physician's opinion on whether or not the scooter is medically required may be obtained. Such opinion will aid in deliberations, but is not determinative.
The present appeal does not directly deal with the question of entitlement to a motorized scooter. Rather, we are only considering whether an MRP should be convened in order to obtain an opinion on whether or not a motorized scooter is medically required. As noted above, in order to find that an MRP should be convened, the panel would have to find that the opinion of a WCB medical officer differs from the opinion of the worker's treating physician.
The medical opinions on the issue can be summarized as follows:
WCB Medical Advisors:
· February 1, 2010 report of WCB internal medicine specialist - reports from the cardiac rehabilitation program and cardiology department suggest a good recovery from the myocardial infarction. "Use of any mobility aid at this stage is not required."
· February 12, 2010 report of WCB medical advisor - the worker has a number of medical conditions which together contribute to impaired mobility. Only the right knee arthrosis and 2007 myocardial infarction have been accepted as ongoing responsibilities of the WCB. The compensable right knee condition by itself would contribute to impaired mobility on the basis of pain, lack of range of motion and possible instability. Typically, in cases of single joint arthrosis, mobility would be aided by bracing, and use of crutches, a walker or cane. "On balance, [worker's] right knee condition of itself would not require the use of a scooter/ wheelchair."
Worker's Physicians:
· October 7, 2009 report of the worker's occupational health physician - worker relies heavily on his walker and even then the knee and back pains flare up within short distances. "He would indeed benefit from a scooter to enhance his quality of life."
· January 1, 2010 report of the worker's treating physician - opinion was limited to the worker's present condition and assessment was osteoarthritis of both hips and right knee and chronic pain condition. "I feel that a wheelchair or motorized scooter would be medically necessary to help with his mobility and to decrease his pain. I request the WCB consider providing him with these options."
· April 8, 2010 report of a nurse on behalf of the worker's treating cardiologist - the worker has asked that we address two issues on his behalf. "Obtaining a scooter for his transportation needs which we do support due to his exercise intolerance as a result of his cardiac condition. In addition, we do strongly encourage that he attends [exercise facility] to promote his cardiovascular health and quality of life."
The panel is not able to identify a difference of opinion between the medical practitioners. The WCB medical advisors have provided two specific opinions: first, that the worker's heart condition does not require a mobility aid, and second, that the compensable knee condition, of itself, does not require the use of a motorized scooter or wheelchair. We do not see a directly differing opinion from the worker's doctors. The occupational health physician and the cardiologist both indicate support for the acquisition of a motorized scooter, but neither opine that a mobility aid is medically required. The treating physician indicates that a wheelchair or motorized scooter is medically necessary, but his opinion relates to the worker's entire physical condition, which includes osteoarthritis of both hips and a chronic pain condition. The worker's treating physician does not indicate that the compensable right knee condition and/or the cardiac condition, of themselves, require the use of a mobility aid.
The panel therefore finds that there does not exist a difference of opinion as required by the Act and consequently, there is no basis upon which to convene an MRP. The worker’s appeal is dismissed.
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 February, 2011