The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

Issue

Decision

Decision: Unanimous

Background

The worker sustained physical and psychological injuries stemming from a work-related accident on January 26, 2009. His claim for compensation was accepted and various benefits and services were paid to the worker. As a result of his compensable injuries, the worker has permanent work restrictions regarding his ability to lift, stand, sit, bend and twist his spine.

In June and August 2013, the worker's case was considered by Review Office as the worker disagreed with a number of decisions that were made on his WCB claim. In both decisions, Review Office referred to medical information on file to support the following decisions:

• The worker was not entitled to partial wage loss benefits beyond May 15, 2012;
• The worker was not entitled to opioid medication coverage beyond August 7, 2012;
• There was no entitlement to benefits related to his leave from February 14, 2012 to February 28, 2012;
• There was no entitlement to coverage for massage therapy after November 27, 2009;
• There was no entitlement to an independent living allowance after February 2010; and
• The cost of the snow blower should not be reimbursed by the WCB.

On September 19, 2013, the worker's legal counsel requested the convening of a Medical Review Panel ("MRP") as he argued that there was a difference of medical opinion between the worker's healthcare providers and WCB medical officers with respect to diagnosis, causation, prognosis, treatment and disability, which led to the denial of WCB benefits to the worker. The medical reports referred to by legal counsel were as follows:

• report dated January 19, 2011 by community mental health counsellor
• report dated January 31, 2013 by a physiotherapist
• report dated February 23, 2012 by a psychiatrist
• report dated March 19, 2013 by the family physician
• report dated March 21, 2013 by a physical medicine and rehabilitation specialist
• report dated August 23, 2012 by a massage therapist

On October 4, 2013, the request for an MRP was denied by initial adjudication on the grounds that the requirements of subsection 67(4) and (1) of the Act had not been met. On October 4, 2013, legal counsel for the worker appealed the decision to Review Office.

On December 11, 2013, Review Office upheld the decision that there was no basis to convene an MRP based on its review of the medical reports referred to by legal counsel. On March 19, 2014, the worker's legal counsel appealed the decision to the Appeal Commission and a file review was held on April 24, 2014.

Reasons

Applicable Legislation and Policy

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

The worker has requested that an MRP be convened. 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 legal counsel and a detailed submission on the issue was provided in letters dated September 19, 2013, October 4, 2013 and March 18, 2014. Overall, eight entitlement issues decided by Review Office were identified and it was submitted that the WCB erred in providing a narrow interpretation of the circumstances in which an MRP could be convened pursuant to the Act, especially as it related to the definitions of "opinion." "physician," "medical officer of the board" and "medical aid". It was submitted that a broad and liberal reading of subsection 67(4) was appropriate and that the WCB should order an MRP in this case, as it related to the eight entitlement issues. It was further submitted that there would be substantive benefit and judicial economy in referring the matter to an MRP at this point in time as there were a number of decisions which the worker may be appealing to the Appeal Commission and a report from an MRP would be of great assistance in considering the appeals.

Employer’s Position

The employer did not participate in the appeal.

Analysis

In order for the worker's appeal to succeed, the panel must find on a balance of probabilities that there is entitlement to an MRP pursuant to subsection 67(4) of the Act. We are able to so find, in part.

Worker's counsel provided a lengthy written submission which addressed a number of points. Eight entitlement issues were identified as follows:

1. The worker is not entitled to wage loss benefits after May 15, 2012.

2. The worker is not entitled to opioid medication after August 7, 2012.

3. The worker is not entitled to benefits related to his absence from work from February 14, 2012 to February 28, 2012.

4. The worker is not entitled to coverage of physiotherapy treatment after January 21, 2010.

5. The worker is not entitled to coverage of massage therapy after November 27, 2009.

6. The worker is not entitled to an independent living allowance after February 2010.

7. The worker is not entitled to reimbursement of the cost of a snow blower.

8. The worker is not entitled to a permanent partial impairment award.

In deciding this appeal, the panel took a two-fold approach. First, we considered which of the reports from the worker's healthcare treatment providers were eligible to create an entitlement to an MRP pursuant to subsection 67(4). Second, we individually considered the medical reports referred to by worker's counsel in the context of the eight entitlement issues and determined whether there was an opinion of a medical officer of the board which differed from the opinion in respect of that matter of the physician selected by the worker for each of the issues.

Healthcare Treatment Providers

The medical reports referred to by legal counsel were provided by:

• a community mental health counsellor
• a physiotherapist
• a psychiatrist
• a family practitioner
• a physical medicine and rehabilitation specialist
• a massage therapist

 

Of those treatment providers, only the psychiatrist, the family practitioner, and the physical medicine specialist are licensed medical doctors. The definition of physician contained in the Act requires that the person must be a duly qualified medical practitioner who is lawfully and regularly engaged in the practice of his or her profession in any jurisdiction in Canada. As such, it is only reports from these three treatment providers which can create entitlement to an MRP.

Difference of Opinion

As a starting point, the panel wishes to address the subsection 67(1) definition of opinion as "a full statement of the facts and reasons supporting a medical conclusion." In the panel's view, in order to satisfy the definition, the worker's physician must provide more than a simple statement of opinion. The opinion must be supported by the facts and medical findings upon which the opinion is based, and it must provide some rationale as to how the opinion was formed. Although, as submitted by legal counsel, the physician may have a extensive physician-patient relationship upon which the opinion is based, a full statement of facts is still required in order to qualify under subsection 67(4). An explanation as to how and why the physician reached that opinion must be evident.

Psychiatrist's report

The panel has reviewed the medical reports referred to by legal counsel. With respect to the psychiatrist's report of February 23, 2012, the panel notes that the report is relatively brief, consisting of only one page. The psychiatrist states: "My opinion is that he is unable to cope with the idea of having psychological desensitization to deal with his traumatic accident," and "He should not return to his former job as a punching station operator for the company, in my opinion." The panel has concerns as to whether or not this report meets the threshold for the definition of an "opinion." In any event, however, we note that neither of the matters commented upon by the psychiatrist are issues being appealed by the worker. As such, there is no medical matter affecting entitlement to compensation and the report therefore cannot form the basis for an MRP under subsection 67(4).

Family physician's report

The family physician's report dated March 19, 2013 makes a number of statements regarding the worker's condition. We will address them individually.

In the paragraph numbered "3" the family physician states: "In my opinion, [the worker's] physical disability and psychological symptoms are directly related to his workplace injury suffered January 26, 2009." This is a broad statement and the acceptability of the worker's WCB claim is not at issue. We see no entitlement to an MRP arising from this statement.

In the paragraph numbered "4" the family physician states:

I already told WCB that [the worker] would benefit from working 6 rather than 8 hours a day of his modified duties because of his pain since the WCB consultant was against increasing his analgesics ... He is limited as to the amount of time he can sit, stand and walk, and he is fatigued. (Climbing, squatting and crawling are things he can not do at all.)

The panel notes that in a Doctor Progress report dated August 30, 2011, the family physician similarly stated: "Because of his chronic fatigue it might be useful to decrease his working hours to 6hrs/day." The panel is not satisfied that either of these statements constitutes an opinion in respect of a medical matter. The statement presents more as a suggestion and a full statement of facts and reasons supporting a medical conclusion is not provided. We find that no entitlement to an MRP arises from this statement.

In the paragraph numbered "5" the family physician states:

The Oxycontin [the worker] uses has been the only analgesic giving him some relief and permits him to work at modified duties to a point. Without it, he could not be able to function at all. If he would not have had this workplace injury, he would not have had to take it.

Although the family physician does not explicitly state it, the panel accepts that the foregoing information is given in support of an opinion that the worker requires opioid medication coverage. As the family physician has given the facts and reasons supporting his opinion (ie. that it is the only analgesic giving relief, that it permits the worker to work and that without it he could not function), the panel accepts that this meets the definition of an opinion.

The December 8, 2011 report of the WCB medical advisor comments on the worker's use of opioids and states: "It appears that the use of oxycontin is not resulting in a significant/sustained benefit to the claimant's pain and function." The WCB medical advisor concludes that the risk/benefit ratio for the use of opioids is not favourable and recommends against coverage.

The panel finds that there is a difference of opinion in respect of whether or not opioids result in a significant/sustained benefit to the worker's pain and function and that this is a medical matter affecting entitlement to compensation. As such, there is entitlement to an MRP pursuant to subsection 67(4) in respect of this matter.

In the paragraph numbered "6" the family physician states:

The stress leave he took from February 14 to 28, 2012 is a direct result of his Post Traumatic Stress Syndrome (caused by his accident), and the fact that they tried to have him go back to work where he suffered his injury without sending him through an appropriate psychological specialist to provide the necessary counselling and treatment required to prepare him for that step. His [medication] is directly related to this and his Post Traumatic Stress syndrome. It is my opinion that this medication should have been paid by WCB.

The relevant entitlement issue is whether or not the worker is entitled to benefits for his absence from February 14 to 28, 2012. The panel finds that there is not a sufficient statement of facts and reasons to meet the definition of opinion. There is no indication of facts and medical findings to support the statement. The panel also notes that whole question of the stressors affecting the worker at the time is complex and may be multi-factorial. A simple statement of causation is not sufficient to constitute an opinion.

In the paragraph numbered "7" the family physician states: "In my opinion, [the worker] has suffered a permanent physical loss from his accident and very possibly a permanent psychological loss related to his workplace accident." This statement is not relevant to an entitlement issue. The panel also has significant doubt as to whether or not the statement qualifies as an opinion.

In the paragraph numbered "8" the family physician states: "In my opinion, [the worker] cannot perform may (sic) activities required to maintain his home and often requires assistance for many of those activities i.e. grass cutting, snow shoveling, loading lumber for his furnace, among others." The matters commented upon by the family physician are not medical matters. A physician can state physical limitations identified through examination, but whether or not this creates an entitlement to assistance is an adjudicative decision. In any event, as there is no contrary opinion by a WCB medical officer, we see no entitlement to an MRP arising from this statement.

In the paragraphs numbered "9" and "10" the family physician states: "The prognosis for [the worker] is very guarded in regards to any possibility of physical improvement" and "It is also my opinion that [the worker] tried his very best and was exemplary in his collaboration with WCB..." There is no entitlement to an MRP arising from these statements as they do not affect entitlement issues, they do not meet the definition of "opinion" and there is no contrary medical opinion from a WCB medical officer.

Physical medicine specialist's report

Physical medicine specialist's report dated March 21, 2013 is a 38 page document with numerous attachments. Under the "Opinion" section, the physical medicine specialist provides comment on ten specific concerns outlined by legal counsel. We will address each paragraph individually.

In paragraph 1, the specialist details the full nature and extent of the injuries the worker sustained in the workplace accident. There are no specific entitlement issues directly related to this information, and no entitlement to an MRP arises from same.

Similarly, paragraph 2 simply provides information regarding the nature and dates of treatment provided, and no entitlement to an MRP arises from same.

Paragraph 3 comments on the cause of the worker's past and present symptomatology. Causation is not an entitlement issue currently under review and therefore no entitlement to an MRP arises from this paragraph.

In paragraph 4, the specialist is asked to provide an opinion on whether the worker would benefit from working six (rather than eight) hours per day on modified duties along with details of the extent and severity of his disability and the specific limitations and restrictions it imposes on any employment. The specialist provides an opinion that:

• the worker has the right to expect to live a balanced life and he was not managing that with working eight hour days;
• the worker was physically and psychologically exhausted after working in his 8 hour 5 day per week modified job;
• the worker had shown little to no evidence that his physical condition was going to change for the better or that he was gaining significant increase in his stamina in spite of multiple trials of functional rehabilitation; and
• it would be reasonable to attempt a reduction in work hours and have assessments done afterward to see if there is any impact in his quality of life.

 

In support of this opinion, the specialist identifies the specific restrictions the worker experienced in his ability to maintain a moving and/or static posture for extended periods without rest. He also identifies work-related activities which were problematic for the worker as they require movement that depend on stability from core muscles and muscles in the lumbosacral/pelvic region, which are muscle groups where the worker lost and had not been able to regain coordination and strength. The panel is satisfied that the specialist has provided a full statement of the facts and reasons supporting his medical conclusion that the worker should work less than eight hours of modified duties per day, and as such, it satisfies the definition of an opinion. This opinion differs from the November 7, 2011 opinion of the WCB medical advisor that: "There appears to be no medical reason at this time for [the worker] to work less than full-time hours". It also differs from the Pain Management Unit's January 10, 2012 opinion that: "there is no psychological or functional reason related to the compensable injury that would require the claimant to decrease his hours of work to less than eight hours per work day."

The panel finds that there is a difference of opinion as to whether the effects of the compensable injury require the worker to decrease his hours of work per day. As such, the worker is entitled under subsection 67(4) to an MRP to consider whether or not he requires a medical restriction as to the number of hours of work per day.

In paragraph 5, the specialist is asked for an opinion as to whether the worker benefits from the use of oxycontin to provide relief from the pain associated with the compensable injury. The specialist provides some background information regarding treatment strategies for chronic pain, then provides the statement that: "The writer feels that [the worker] is benefitting from this medication in the attempt to cope with his ongoing pain symptoms." The panel is not satisfied that this statement constitutes an opinion as a full statement of facts and reasons supporting a medical conclusion is not provided. We find that no entitlement to an MRP arises from this statement. We note, however, our previous finding that the worker is entitled to an MRP regarding the use of opioids arising from the opinion provided by the family physician.

In paragraph 6, the specialist reviews the evidence regarding the worker's pre-injury lifestyle, then provides a list of factors which may have contributed to the worker's absence from work for the period February 14 to 28, 2012. It is notable that the specialist did not see or treat the worker during this period of time, and had only seen him for an initial consultation on January 12, 2012. The worker was not seen again until August 31, 2012. The specialist then states: "On the balance of probability, based on the known level of activity that [the worker] participated in prior

to his workplace injury, this writer feels that the stress leave noted in February 2012 was a direct result of the effects of the January 27, 2009 compensable workplace injury."

In the panel's view, the specialist is not providing a medical opinion, but rather is venturing into an adjudicative role of assessing the available evidence on a balance of probabilities. We find that an entitlement to an MRP under subsection 67(4) does not arise from this paragraph.

In paragraph 7, the specialist states: "As there has been no significant change in [the worker's] symptoms and presentation for over 3 years, this writer feels that [the worker] has suffered permanent physical and psychological abnormality and/or loss (i.e. permanent partial impairment) as a result of his workplace accident on January 26, 2009." Although the specialist uses terminology from the Act (permanent partial impairment), this statement cannot be considered a differing opinion to that of the WCB medical advisor who stated in a memo dated February 6, 2014 that: "[The worker's] ongoing difficulties are related to pain and there is no rateable (permanent partial impairment) in regards to chronic pain or pain syndromes." The WCB medical advisor's statement related to whether or not the worker's physical condition would technically qualify under the Act as a permanent partial impairment. The specialist's statement is a general statement. No entitlement to an MRP arises from this statement.

In paragraph 8, the specialist states: "The writer feels in his present situation, [the worker] is not able to perform activities to maintain his home and requires assistance from an attendant relative to same including in particular, grass cutting, snow shoveling and loading lumber for his furnace." As the panel found with the similar statement given by the family physician, this statement does not provide a medical opinion but rather is along the lines of an adjudicative decision. There is also no contrary opinion by a WCB medical officer. No entitlement to an MRP arises from this statement.

With respect to paragraphs 9 and 10, the specialist comments on the worker's prognosis for the future, and whether or not the worker had enthusiastically participated in all rehabilitation efforts. These are not matters germaine to entitlement issues, and no entitlement to an MRP arises from these paragraphs.

1. The family physician's March 19, 20113 opinion regarding the need for use of opioids by the worker; and
2. The physical medicine specialist's March 21, 2013 opinion regarding the need for reduced hours of work.

Panel Members

L. Choy - Presiding Officer

Signed at Winnipeg this 20th day of June, 2014