The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

On October 7, 2010, it was determined by Review Office of the Workers Compensation Board

("WCB") that subsection 67(1) of The Workers Compensation Act had not been met and therefore a Medical Review Panel would not be convened. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A file review was held on February 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

On October 19, 2005, the worker suffered an injury to his left shoulder and arm when he grabbed a cable with his hand as he fell from the back of a truck. His claim for compensation was accepted and benefits were paid to the worker.

On March 12, 2008, the worker was seen by a WCB medical consultant in order to confirm a current diagnosis and determine the worker's current functional capabilities. Following the assessment, the medical consultant reported that based on a review of the file as well as history and physical examination, a structural pathoanatomic lesion in relation to the workplace injury of October 19, 2005 was not identified. He reported that the diagnosis of a neuropathic brachial plexus lesion had been queried and that it was probable that this diagnosis had since resolved. Regarding workplace function, the medical consultant stated, "…a structural pathoanatomic lesion in relation to [the worker's] workplace injury of October 19, 2005, on which to base the imposition of restrictions on [the worker's] function is not identified. Moreover, today's examination did not reveal objective evidence of an impairment of function. In this regard, range of motion was essentially full. Hand grip strength was found to be functional. The neurologic examination was normal."

On April 3, 2008, the WCB advised the worker that no further responsibility would be accepted for his claim as the information confirmed that he had recovered from the effects of his October 19, 2005 workplace injury. The decision was based primarily on the March 12, 2008 examination findings of the WCB medical consultant.

On March 24, 2009, a worker advisor submitted to the WCB a report from a physical medicine and rehabilitation specialist (physiatrist) dated January 19, 2009 for consideration. The worker advisor noted that the physiatrist identified tenderness and trigger points consistent with the worker's compensable injury. He also stated in his report that: "…present symptoms originated in the work-related fall of October 19, 2005." The worker advisor argued that the physiatrist clearly implicated ongoing effects of the compensable injury in the worker's current symptoms and restrictions.

On June 10, 2009, the WCB medical consultant outlined the opinion that the new information from the physiatrist did not change his opinion outlined on March 12, 2008. He stated that the worker's cervical spine range of motion in the examination of March 12, 2008 was essentially normal and left rotation was slightly limited. These findings were repeated by the pain physician on March 19, 2008 and on July 22, 2008. The physiatrist reported significantly restricted range of motion in his January 2009 examination. The consultant said it would be improbable that the cervical range of motion would be normal in March 2008 and July 2008 and then significantly restricted in January 2009. This suggested that the restricted range of motion in January 2009 in the cervical spine was probably not related to the 2005 workplace injury.

The consultant noted that the physiatrist found scapular winging when he saw the worker in January 2009 but the scapular winging was not noted in the March 12, 2008 examination. This suggested that it was more probable to ascribe the scapular winging to factors outside of the workplace injury. The consultant noted that the physiatrist referred to tenderness and trigger points. He said the means to diagnose tenderness and trigger points are subjective and have been shown to have very poor inter-rater reliability.

On June 10, 2009, the worker was advised that no change would be made to the decision outlined on April 3, 2008.

On August 25, 2009, the worker advisor appealed the WCB's decision to deny responsibility of the worker's claim beyond May 30, 2009. On October 22, 2009, Review Office confirmed that the worker had recovered from the effects of his October 19, 2005 compensable injury.

In a letter dated March 30, 2010, the worker advisor requested that a Medical Review Panel ("MRP") be convened under subsection 67(4) of The Workers Compensation Act (the "Act"). It was submitted that the MRP was needed to resolve the difference of medical opinion expressed by the WCB medical consultant on March 12, 2008 and the worker's treating physiatrist outlined in his January 19, 2009 report.

In a response dated May 5, 2010, a sector services manager denied the request for an MRP on the grounds that he felt the requirements of subsection 67(1) of the Act (a full statement of the facts and reasons supporting a medical conclusion), had not been met. He stated:

In my opinion, [the physiatrist's] January 19, 2009 report provides a well detailed history of the extensive medical investigations undertaken in [the worker's] case, however, I find it is lacking in providing reasons or rationale which support the conclusion that, "The probability is extremely high that his present symptoms originated in the work related fall of October 19, 2005."

The 'present symptoms' or findings, as reported by [the physiatrist] on January 19, 2009, were soft tissue tightness, tenderness, pain generators, trigger points, and some active range of motion decrements (i.e. self-limited). These are all very subjectively determined and/or self-reported by the patient. Perhaps more objectively, [the physiatrist] reported that "There may not be an impingement restriction with negative Hawkins sign" and "The only true weakness found around the rotator cuff was in the infraspinatus."

I find the reporting of the above constellation of subjective symptoms insufficient in regards to reasons supporting a medical conclusion opined to be of "extremely high" probability, particularly in comparison to the multiple prior examinations and diagnostic testing outcomes which yielded different results. As such, I am unable to convene an MRP in this case.

On May 27, 2010, the worker advisor appealed the sector service manager's decision to Review Office. The worker advisor submitted that the physiatrist's opinion outlined in his January 2009 report was fully in accordance with subsection 67(1) of the Act. The physiatrist demonstrated a complete understanding of the mechanism of injury. He considered the mechanism in relation to the current clinical findings/reported symptoms, and determined there to be an ongoing cause-effect relationship on a balance of probabilities. The worker advisor advanced the position that the physiatrist's opinion differed from that of the WCB medical consultant who concluded that there was no objective evidence of functional impairment, nor any "structural pathoanatomic lesion in relation to [the worker's] workplace injury of October 19, 2005, on which to base the imposition of restrictions." She felt that an MRP was required to resolve the difference of medical opinion and that the physiatrist's report met the definition of an 'opinion" as defined by the Act.

In its decision dated October 7, 2010, Review Office stated that it agreed with the sector manager's position that the five page report from the physiatrist was lacking in providing reasons or rationale to support the comment "the probability is extremely high that his present symptoms originated in the work-related fall of October 19, 2005." It noted that this comment was originating 39 months post trauma as that was the time gap involved in the physiatrist's entrance into the scenario following the worker's compensable injury of October 19, 2005. Review Office noted that the physiatrist continually reported on the worker's subjective complaints and the worker's own comments on the situation but there was a lack of medical rationale to support the physiatrist's conclusion.

Review Office indicated that the physiatrist's findings were basically all subjective. The reporting of such subjective symptoms were deemed insufficient in regards to qualifying as reasons to support a medical conclusion. Review Office therefore was of the opinion that subsection 67(1) of the Act had not been met and confirmed that an MRP would not be convened. On November 4, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Panel Members

L. Choy, Presiding Officer
P. Marsden, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 13th day of April, 2011