Decision #112/11 - 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 July 25, 2011 to consider the appeal.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
In July 2008, the worker filed a claim with the WCB stating that he became upset and withdrawn after a meeting that took place at work on April 26, 2008. The worker said the meeting was in regard to an incident that the employer felt he did not address appropriately, which could have led to disastrous consequences.
Information submitted from the employer was that the worker ceased to work due to stress. The employer expressed the view that the circumstances which precipitated the onset would not satisfy the WCB's legislative definition of compensable stress. The employer opposed the acceptance of the claim on this basis.
On August 14, 2008, a WCB adjudicator contacted the worker to obtain additional information. The worker described situations that occurred during his work day which he felt contributed to his stress condition.
A report from a psychiatrist diagnosed the worker with major depression and elements of post-traumatic stress disorder ("PTSD").
On October 13, 2008, the worker's claim for compensation was denied as it was the opinion of the WCB adjudicator that the situations described by the worker did not meet the criteria of an acute reaction to a traumatic event as outlined in WCB Policy 44.20. The adjudicator stated:
"When we consider a claim, it is first necessary to determine whether the worker sustained a personal injury by an accident, which both arose out of and in the course of the worker's employment as indicated under Section 4(1) of the Workers Compensation Board...After reviewing your claim it was noted that there was no acute reaction to a specific traumatic event which caused a condition in you that was clearly discrete from the condition prior to an event. As such, it does not meet the definition of an accident under Section 1(1) of the Act."
On April 9, 2009, a worker advisor provided the WCB with additional information to support that the worker suffered from post traumatic stress related to incidents that occurred as a result of his work duties. After considering the new information, the WCB adjudicator determined that no change would be made to the decision outlined on October 13, 2008.
On October 13, 2009, a different worker advisor asked Review Office to reconsider the October 2008 decision. He submitted that the worker experienced numerous traumatic incidents, any of which could cause a psychological reaction.
After reviewing the file information which included a submission from the employer and rebuttal submission from the worker advisor, Review Office confirmed on February 1, 2010, that the worker's claim was not acceptable. Review Office determined that the worker did not sustain an "accident" as defined by subsection 1(1) of the Act.
On September 17, 2010, the worker's union representative requested a Medical Review Panel ("MRP") in accordance with subsection 67(4) of the Act. The representative stated that:
[The WCB psychiatric consultant's] opinion of July 6, 2009 states "There is no psychiatric diagnosis that can be made from the material on the file." [The WCB psychiatric consultant] also states: "I do not believe that PTSD can be clearly diagnosed in the presence of the abundance of incidences and conflicts as documented by the employer."
Dr. [name] provides an opinion on numerous occasions on [the worker's] file that provides a diagnosis of PTSD.
Dr. [name] also provides a diagnosis of PTSD, however, we note this is the employer's physician and not the worker's physician of choice."
In a letter dated September 29, 2010, a WCB sector services manager denied the request for an MRP based on the following rationale:
"In reviewing the information on [the worker's] claim it is noted that both physicians have provided their diagnosis on this matter. What is in dispute is whether there is a causal relationship between the worker's condition and his employment. It is the position of the Board that the worker did not sustain an accident as defined by Section 1(1) of the Act. As it is our position that the decision to deny the claim was not based on a difference of medical opinion, your request for a Medical Review Panel has been denied."
On October 18, 2010, the worker's representative appealed the above decision to Review Office. The representative's submission was forwarded to the employer's representative for comment. On November 23, 2010, the employer submitted the following position:
"In the case at hand, subsection 1(1) was not satisfied and therefore the purported differences of medical opinions are not germane. The convening of a Medical Review Panel pursuant to the provisions of subsection 67(4) of the Act would not be legislatively permissible as the bar to entitlement to compensation is the failure to satisfy the definition outlined in subsection 1(1) of the Act…we believe there to be no basis upon which to vary the September 29, 2010 decision."
The worker's representative made the following comments on February 9, 2011:
"The employer's arguments with respect to the acceptability of the claim under section 1(1) are irrelevant. It is not a requirement in the Act for a claim to be accepted prior to convening a medical review panel. In fact, the findings of a Medical Review Panel may directly impact on the acceptability of the claim and in turn have a direct bearing on the entitlement to compensation."
On February 15, 2011, Review Office outlined the position that the denial of the worker's claim was related to the reasons why he ceased work on April 27, 2008, and not to the difference of medical opinion expressed between the WCB medical advisor and the worker's physician. Review Office noted that the information provided by the staff psychologist who the worker attended on April 29, 2008 which related his problems to disciplinary action meted out by the employer was considered to be compelling evidence. Review Office therefore was unable to accept the request for an MRP. On February 28, 2011, the worker's representative appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation
The worker has requested that an MRP be convened under subsection 67(4) of The Workers Compensation Act (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 represented by a union representative who provided a written submission to the WCB. In a letter to Review Office, the worker's representative asked that an MRP be convened under subsection 67(4) of the Act. She referred to the opinion of a WCB medical advisor dated July 6, 2009 which stated that "There is no psychiatric diagnosis that can be made from the material on file…I do not believe that PTSD can be clearly diagnosed in the presence of the abundance of incidences and conflicts as documented by the employer." She contrasted this opinion with the opinion of the worker's treating physician and the opinion of a psychiatrist retained by the employer, both which provide the opinion that the worker has a diagnosis of PTSD.
In a further submission to Review Office, in answer to the employer's submission, the worker's representative submitted that it is not a requirement in the Act for a claim to be accepted prior to convening a MRP. She submitted that the findings of a MRP may directly impact on the acceptability of the claim and in turn have direct bearing on the worker's entitlement to compensation.
Employer's Position
The employer was represented by its compensation coordinator who made a written submission to the Appeal Commission. The representative submitted that:
"In the case at hand it is our position that the difference of medical opinion had no bearing on [the worker's] entitlement to benefits but, rather, it was the adjudicative determination that the claim did not satisfy the prerequisites of subsection 1(1) of the Workers Compensation Act. The position of the Board is only enhanced by the contents of [the worker's] claim for compensation dated July 10, 2008. Specifically, he attributes his psychological problems to the disciplinary meeting convened on April 26, 2008. Had [the worker's] claim satisfied the prerequisites of subsection 1(1) but was denied based on a medical advisor opinion that differed from an external practitioner, there might be merit to the argument advanced by [the worker] and his representative."
The employer's representative submitted there is no basis upon which to convene an MRP.
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 physician within the meaning of subsections 67(4) and 67(1) of the Act. We are able to make that finding.
It was submitted that the right to an MRP is limited to cases where a claim is accepted. We find there is no such limitation in the Act or in WCB policy, and we note that subsection 67(4) specifically provides "Wherein any claim or application by a worker for compensation…" This subsection confirms that an acceptable claim is not a pre-condition to the application of subsection 67(4).
It is our view that where medical information is used in determining claim acceptance, the right to an MRP may arise, provided that the requirements of Section 67 are met. The panel considers this appeal to be such a case. We note that the Review Office decision on claim acceptance relied upon medical information in reaching its decision. Specifically, Review Office relied upon the opinion of a WCB medical advisor, to exclude a potentially compensable psychiatric diagnosis or condition.
With respect to the issue of whether there is a difference of medical opinion as required by the Act, we conclude there is a difference as outlined below and that the difference affects the worker's entitlement to compensation.
We note the opinion of the WCB medical advisor in her file memo of July 6, 2009. The medical advisor states that "…there is no psychiatric diagnosis that can be made from the material on file." The panel also notes the medical advisor's conclusion that "I do not believe that PTSD can be clearly diagnosed in the presence of the abundance of incidences and conflicts as documented by the employer."
The treating physician stated in a report dated September 26, 2008 that the diagnosis is post traumatic stress disorder with major depression. In a report dated August 31, 2009, the physician notes that the worker continues to suffer from symptoms of post traumatic stress disorder related to his work environment. We find that these reports satisfy the requirements of an opinion under subsection 67(1). In addition to the treating physician's opinion, we note that the worker was referred to a psychiatrist by the employer and that the psychiatrist opined in a report dated September 26, 2008 that the worker has post-traumatic stress disorder and major depression. The worker was also treated by a psychologist who provided the same diagnosis.
We find that the medical officer's opinion differs with the opinion of the worker's treating physician on a medical matter affecting compensation, that the provisions of the Act have been met, and that an MRP should be convened.
The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 16th day of August, 2011