Decision #41/11 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which confirmed that there was no difference of medical opinion to convene a Medical Review Panel under subsections 67(1) and 67(4) of the Act. The worker's solicitor disagreed and an appeal was filed with the Appeal Commission. A file review was held on March 14, 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

During the course of his employment as a courier driver on September 11, 2006, the worker was carrying boxes of paper up a flight of stairs when he struck his head on a door which "knocked me backwards onto my back on the landing and down a couple of stairs with the boxes of paper on me."

On September 11, 2006, the worker attended a physician for medical treatment and complained of back pain, tenderness in the coccygeal area and abrasion on his head. The diagnosis reached by the physician was a sprain of the low back. By September 18, 2006, the physician felt that the worker was capable of returning to his regular job duties.

In a progress report dated September 27, 2006, the physician noted mild tenderness in the tip of the coccyx and the worker was referred to physiotherapy treatment.

In a progress report dated October 11, 2006, it was reported that the worker had reduced sensation in his right lower leg since the accident. The physician queried a possible diagnosis of lumbar radiculopathy.

A physiotherapy report dated October 25, 2006, indicated that the worker had right foot numbness (was in the lower leg below knee) and pain in his low back brought on by prolonged standing, climbing stairs, etc.

On December 22, 2006, a CT scan was taken of the worker's lumbosacral spine. The radiological findings showed no disc herniation, spinal stenosis or nerve root compression at L2-3. At L3-4, there was very minimal posterior disc bulging but no herniation, stenosis or nerve root compression. At L4-5, there was diffuse posterior disc bulging but no localized herniation, spinal stenosis or nerve root compression. Degenerative changes were noted in the facets. At L5-S1 there was no disc herniation, spinal stenosis or nerve root compression.

On January 22, 2007, the file was reviewed by a WCB medical advisor at the request of primary adjudication to provide an opinion as to the current diagnosis. The WCB medical advisor responded as follows:

"The current Dx [diagnosis] related to the CI [compensable injury] is coccyx contusion. This is based on medical reports indicating local pain and tenderness in the coccyx region following a MOI [mechanism of injury] consistent with an injury to this area. It is noted that symptoms of numbness to the right lower leg and foot did not appear in the medical reports until Oct. 11, 2006. X-ray and CT reports do not indicate findings that would account for the symptoms of numbness. Since these symptoms began well after the work place accident, a probable connection with the CI cannot be established."

On March 28, 2007, it was determined by the WCB case manager that no further responsibility would be accept for the worker's claim beyond April 3, 2007. On September 15, 2008, the worker appealed the decision to Review Office. The worker stated that his back was still a problem and he had constant pain and numbness in both feet and legs. The worker indicated that he did not report foot, leg pain and numbness initially because he thought it was all part of the injury and would heal accordingly. After 3 to 4 weeks the pain and numbness got worse which prompted him to report it. The worker provided the WCB with nerve conduction studies which stated: "…lower extremity is indicative of a sensory neuropathy with evidence of axonal loss. This pattern can be seen in diabetic neuropathy." The worker indicated that his neurologist told him that since he had no history of back, leg or foot problems, the trauma of the fall likely caused the symptoms to appear.

On October 30, 2008, Review Office determined that the worker's ongoing leg symptoms were not related to the September 11, 2006 injury. Based on the nerve conduction study report and letter by the treating neurologist dated October 31, 2007, Review Office found there was insufficient evidence to conclude the worker's ongoing problems were related to the compensable injury of September 11, 2006.

On May 5, 2009, the worker's legal representative requested a Medical Review Panel ("MRP") in accordance with the provisions of subsection 67(4) of The Workers Compensation Act (the "Act"). The solicitor felt there was a clear difference of medical opinion between the WCB medical advisor dated January 22, 2007 and the following medical opinions:

  1. Neurology opinion outlined on October 31, 2007:

"I suspect that his disability is due to the low back injury and is not related to neurological involvement."

  1. Pain clinic specialist's opinion outlined on February 19, 2009:

"With regard to your concerns about whether or not [the worker's] symptoms are associated with his Workers Compensation Board claim or his most recent diagnosis of diabetic peripheral neuropathy, it is an area of conflict in that patients with diabetic peripheral neuropathy do complain of pain associated with areas of numbness. The interesting fact though is that he improved significantly with the initial facet joint injections particularly related to the numbness. This would suggest that the numbness he describes in his lower extremities is partly related to the lower back. As this markedly improved, I would therefore suggest that there is a degree of radicular pain associated with his facet joint arthropathy. This is not uncommon. With this in mind, I would think that his symptoms would be compensable and fall under work-related injury."

On May 15, 2009, a WCB sector services manager determined that the opinions outlined by the worker's doctors did not provide a full statement of facts supporting their medical conclusion as it related to the injury suffered on September 11, 2006. The manager noted that the neurologist's opinion of a "low back injury" provided no supporting diagnosis or supporting rationale related to the September 11, 2006 injury. The pain clinic specialist provided the diagnosis of facet joint arthropathy (right L4-5 and L5-S1) because of the initial success he had with the facet joint injections. The specialist did not support his diagnosis as related to the injury (fall) the worker suffered on September 11, 2006.

On March 11, 2010, the solicitor provided the WCB with additional reports from the pain clinic specialist dated February 19, 2009, November 6, 2009 and January 18, 2010. It was his view that the reports satisfied the prerequisites of subsection 67(1) of the Act.

On March 15, 2010, the sector service manager upheld his earlier decision that the pain specialist's conclusions were not supported by the facts or medical evidence presented, as related to the injury. The manager noted that the diagnosis offered of mechanical back pain (arthropathy, facet joints L4-5-S1) were based on the worker's subjective change in pain after the injections and that it was not supported/corroborated by any diagnostic testing. The x-ray and CT scan did not indicate findings that would support right leg numbness.

Review Office obtained reports from the worker's neurosurgeon dated April 17, 2007 and June 26, 2007 along with an MRI report dated May 22, 2007.

On July 22, 2010, a WCB orthopaedic consultant reviewed the file information and the following opinion was formed:

"At issue is whether or not the compensable injury caused an aggravation of the pre-existing degenerative disease of the facet joints of the lumbar spine. The symptoms reported by the Neurosurgeon (seven months after the CI) and the Pain Clinic specialist (two years after the CI) as occurring since the accident differ from the symptoms reported by attending physicians immediately after the injury and within a few months after the injury. The latter do not document any radiating lower limb pain; the greater credibility must be given to contemporary reports. The subsequent finding of numbness of one and then both legs is entirely consistent with the additional diagnosis of progressive diabetic peripheral neuropathy. The diagnosis of the CI was probably a contusion of the coccyx. The diagnosis two years later was probably lumbar facet arthropathy. There is no contemporary clinical evidence to link the later development of facet arthropathy with the diagnosis of the compensable injury.

The medical information obtained by Review Office as well as the WCB orthopaedic specialist's opinion was forwarded to the worker's solicitor on July 26, 2010. On October 8, 2010, the solicitor submitted that that there was a difference of medical opinion and that a MRP would resolve the medical issues on the file.

On October 14, 2010, Review Office denied the request for the convening of an MRP under subsection 67(4) and 67(1) of the Act. Review Office's rationale was as follows:

  • the October 31, 2007 neurosurgeon opinion that "I suspect that his disability is due to the low back injury and is not related to neurological involvement." The comment did not provide any diagnosis and did not provide any supporting rationale to explain the position of the physician.

  • the pain clinic physician diagnosed the worker with facet joint arthropathy due to the initial success he had with facet joint injections. The second series of injections, however, failed.

  • the pain clinic physician, two years post compensable injury, was using the history provided by the worker and never mentioned any of the vital facts of the case regarding the initial medical evidence on file. This medical evidence did not document any radiating lower limb pain as noted by the WCB orthopaedic consultant, the subsequent findings of numbness of one and then both legs, are entirely consistent with the additional diagnosis of progressive diabetic peripheral neuropathy.

  • there was no indication that the assistant professor of neurology and the pain clinic physician were using the same medical facts regarding the early stages of the claim, that the WCB medical staff were using in providing their comments. Review Office therefore did not feel that the definition of "opinion" had been met.

  • it was unable to reach the conclusion that the worker's physician had included in their comments a full statement of facts and reasons supporting a medical conclusion.

On October 29, 2010, the worker's solicitor appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

This was an appeal by the worker who is seeking to have a Medical Review Panel (MRP) convened under subsection 67(4) of The Workers Compensation Act (the Act). This subsection 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) is also relevant to this appeal. It defines an opinion as “…a full statement of the facts and reasons supporting a medical conclusion.”

For subsection 67(4) to apply there must be a difference of opinion between the opinions of a treating physician and a WCB medical officer on a medical matter affecting entitlement to compensation. Subsection 67(1) imposes the requirement that the opinion be a “full statement of the facts and reasons supporting a medical conclusion.” The requirement for a full statement of facts insures that the differences between the views of the treating physician and WCB medical officer are differences of opinion and not differences of fact. Where the views are based upon different facts, it cannot be said that there is a difference of opinion.

The requirement for a common set of facts is essential to the MRP process. MRPs are convened to provide a medical opinion where a difference of medical opinion exists on a file. MRPs are not adjudicative bodies. It is not their function to adjudicate on which facts are correct; rather, they are to provide opinions on medical matters. The adjudication of facts is a matter for the WCB and the Appeal Commission. The requirements of subsection 67(4) are not met where the facts relied upon in the two opinions are different.

It is important to note that an MRP is part of the evidence gathering process undertaken by the WCB and/or the Appeal Commission, to assist the appropriate adjudicator(s) in understanding complex or conflicting medical information on a file. It works best where there is a common view of the facts and conflicting views as to diagnosis or to the cause of medical conditions. The MRP is not a useful tool where its foundation, the factual scenarios leading to the injuries, is not accurate. The doctors would have no basis on which to choose one set of facts over the other, and it is not in fact their role to choose between two different factual scenarios, as noted earlier.

It should also be pointed out that the granting or denial of a MRP is not determinative of the rights of the worker to benefits. The MRP opinion is only one of the factors that is considered in the decision making process. Whether or not a MRP is granted under subsection 67(4) of the Act, it remains open to the WCB and the Appeal Commission to weigh all facts and medical evidence on the file as part of the adjudication process.

Worker’s Position

The worker was represented by legal counsel who provided a written submission to the panel. The worker's representative notes that the issue is whether the pain specialist's opinions satisfy the test outlined in subsection 67(1) of the Act. The representative suggests the WCB erred in determining this question on the basis of the number of medical opinions for or against. He noted that the Review Officer did not elaborate on what they perceived the deficiency to be in the pain specialist's opinion but simply state the test is not met. The representative submitted that the pain specialist has provided the facts and reasons for providing the difference of medical opinion and that the opinion meets the requirement s of subsection 67(1). He asked that a Medical Review Panel be convened.

Analysis

For the worker’s appeal to be successful, we must find that the requirements of the Act have been met. Specifically we must find that:

1. there is an opinion as required under section 67(1) - a full statement of the facts and reasons supporting a medical conclusion

2. the opinion of the worker’s physician differs from that of the medical officer of the board, and

3. the difference is over a medical matter affecting entitlement to compensation,

We note that the worker's physician and the WCB medical officer provided a differing diagnosis of the worker's condition and its relationship to his workplace injury.

In his report of February 19, 2009, worker's physician notes the worker has evidence of both diabetic peripheral neuropathy and facet joint arthropathy. He states there is a degree of radicular pain associated with the worker's facet joint arthropathy. The existence of facet joint arthropathy appears to be based, largely, upon the history of symptoms provided to the physician by the worker. The physician wrote "He sustained an injury to his back and since that time has had persistent knife-like pain in his lower back. He indicates that "it radiates down his leg…"

On the other hand, the medical officer opined that "The symptoms reported by the Neurosurgeon (seven months after the CI) and the Pain Clinic specialist (two years after the CI) as occurring since the accident differ from the symptoms reported by attending physicians immediately after the injury and within a few months after the injury. The latter do not document any radiating lower limb pain; the greater credibility must be given to contemporary reports."

He comments "There is no contemporary clinical evidence to link the later development of facet arthropathy with the diagnosis of the compensable injury."

We note the above opinions are based on very different facts regarding the onset of symptoms. The medical officer notes the symptoms were first identified seven months after the workplace injury while the worker's physician relies upon the worker's history (given at the time of his examination) which indicates that since the date of the back injury the worker has had persistent knife-like pain.

We find that due to the reliance on different facts, it cannot be said that there is a difference of opinion as between the medical officer and the worker's physician as required by subsection 67(4). Accordingly, the worker is not entitled to have the matter referred to a Medical Review Panel.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 12th day of April, 2011

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