The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker's accident occurred in 1975 and his request is therefore governed by the Act as it existed at that time. In 1975, a worker request for an MRP was provided for in subsection 54.1(4), which read as follows:

Reference to panel on request

54.1(4) Where in any claim or application by a workman for compensation the opinion of the medical officer of the board in respect of a medical matter differs from the opinion in respect of that matter of the physician selected by the workman, expressed in a certificate of the physician in writing, if the workman requests the board, in writing, 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) of the current Act defines opinion as "a full statement of the facts and reasons supporting a medical conclusion." Although the subsection 67(1) definition was not enacted until 1990, it is applicable to all claims, regardless of the date of accident.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that the opinion of a medical officer of the WCB differs from the opinion of the worker’s treating physician within the meaning of subsections 54.1(4) and 67(1). We are unable to make that finding.

In his written submission, the worker attached a new medical report from a physical medicine specialist, dated October 11, 2011. The worker's submission states: "Note clearly his recommendation for the permanent lifetime restrictions to be adhered to closely and the consistence (sic) of my symptoms with the original injury. It was these restrictions that prevented me from driving long haul ever again."

The panel has reviewed the worker's WCB file to determine whether there is a difference of opinion between the October 11, 2011 report and a WCB medical officer. We find that there is no differing opinion.

The October 11, 2011 report from the physical medicine specialist states as follows:

The current clinical findings are consistent with ongoing altered biomechanics related to the prior injury in 1975 (C6-7 fracture-dislocation), with chronic osteogenic and musculogenic pains. I'm somewhat concerned about possible cervical disc troubles, and possible central canal stenosis that may aggravate the spinal cord. MRI will be ordered to evaluate for stenosis and cord injury. There are no upper motor neuron signs on the present exam. It would be logical for him to continue to have his WCB-imposed physical restrictions. He continues to try to work and remain active within those restrictions at the time, and I would support that.

On June 13, 2002, a WCB medical officer stated his opinion that: "There was good function range of motion of the neck, fluid movements and no apparent discomfort suggesting no apparent need for any of these past restrictions." On August 8, 2002, a WCB orthopedic consultant stated: "The noted changes in the C-spine do not preclude driving. He has a stable C-spine and in my opinion there is no necessity for the imposition of restrictions at this late date as a result of the old CI (compensable injury)."

Although the worker's physician states that restrictions should be continued and the WCB medical officers say that restrictions are not necessary, the panel does not find that this constitutes a difference of opinion within the meaning of subsections 54.1(4) and 67(1). The physical medicine specialist's opinion was based on the worker's physical condition in 2011, whereas the WCB medical officers' opinions are based on the worker's condition in 2002. This is like comparing apples and oranges. There is a nine year difference between the two sets of opinions and the worker's physical condition may well have changed during that period of time, for reasons having nothing to do with his work injuries. We therefore are of the view that the opinions cannot be compared to one another as they describe significantly different periods in time.

The panel then reviewed the worker's WCB file to determine whether there was an opinion from one of his physicians in 2002 which differed from those of the WCB medical officers at that time. We identified two one-page letters from the worker's family physician. In the letter dated May 13, 2002, the family physician described the worker's examination findings from a visit on April 29, 2002 and stated: "[Worker] sustained exacerbation of his pre-existing neck injuries that was manageable before the accident. The recovery period to his pre-accident level is time and therapy related. [Worker] is totally disabled from any type of employment." By letter dated October 8, 2002, the family physician outlined the worker's diagnoses sustained in the workplace accident, current examination findings and stated: "[Worker] was instructed to try different activities, however to refrain from activities that precipitate severe symptoms that disabled the patient for days afterward. He knows which activities will precipitate headaches, neck pain and hands parasthesia. His symptoms then require regular intake of [pain medication]."

In the panel's opinion, neither of these 2002 letters from the worker's family physician meets the subsection 67(1) definition of opinion of: "a full statement of the facts and reasons supporting a medical conclusion." Although in his May 13, 2002 letter the family physician made the statement that the worker was totally disabled from any type of employment, this is not enough to constitute a medical conclusion which is supported by a full statement of facts and reasons. We do not feel that the family physician's May 13, 2002 letter was sufficient to meet the definition of an opinion such as to give rise to the convening of an MRP.

The panel notes that the worker's written submission claimed that an MRP was required to determine whether the degenerative changes in his cervical spine were a result of the workplace accident. In fact, the Appeal Commission's December 14, 2004 decision that the worker was not entitled to temporary total disability benefits beyond June 1, 2002 was based on a finding that the changes in the worker's cervical spine at that time did not preclude him from truck driving. It did not make a finding that none of the degenerative changes in his spine were associated with the workplace accident. If the worker feels that his condition in 2011 has changed since 2002, it remains open to him to request the WCB to consider updated medical reports and determine whether there is currently any impairment to his earning capacity which is a result of his compensable injury.