The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that a Medical Review Panel would not be convened.  A file review was held on October 2, 2015to consider the worker's appeal.

Issue

Whether or not a Medical Review Panel should be convenedpursuant to subsection 67(4) of the Act.

Decision

That a Medical Review Panel should be convened pursuant tosubsection 67(4) of the Act.

Decision: Unanimous

Background

During the course of his work duties on March 15, 2011, the worker slipped twice on an icy sidewalk and reported injury to his back region. On March 16, 2011, the worker sought medical treatment and returned to light duty work in May 2011. By June 2011, the worker returned to his regular work duties and began ART treatment in October 2011 due to his ongoing back pain.

On February 1, 2012, the worker was descending some concrete stairs when he slipped on ice and fell approximately 8 steps onto his back. A claim for compensation was filed which was accepted as a WCB responsibility.

File records show that prior to his workplace accidents, the worker underwent a posterior lumbar decompression and fusion for an L4-L5 spondylolisthesis with lumbar stenosis in May 2010.

On October 4, 2012, a WCB orthopedic consultant reviewed the worker's two claim files and stated:

• the March 15, 2011 workplace injury caused a soft tissue sprain/strain of the lumbar spine. Although the attending physician at first considered a diagnosis of L5-S1 disc protrusion, such a diagnosis was not confirmed by a subsequent MRI.
• the February 1, 2012 workplace injury was a contusion of the lumbar spine.
• the worker's current symptoms are caused by spinal stenosis and are not related to his workplace injuries. The consultant stated: MRI dated 8-June-2012 demonstrated retrolisthesis and spinal stenosis at L2/L3 level. The previous decompression and fusion for spinal stenosis at L3-L5 levels was noted. This previous surgery was done for a condition not related to work - spinal stenosis. The natural history of spinal stenosis is deterioration over several years because of degenerative changes at more and more levels of the spine. Epidural injections are sometimes helpful for spinal stenosis and for a degenerative disc disease.

In WCB decisions dated October 10 and 26, 2012, the worker was advised that he was not entitled to wage loss or medical costs beyond July 12, 2012 as it was felt that his current back difficulties were due to spinal stenosis and not to either of his workplace accidents. On November 9, 2012, the worker appealed the decision to Review Office.

On February 13, 2013, Review Office determined that the worker had recovered from the effects of his 2011 and 2012 compensable accidents and that he was not entitled to further benefits. Review Office's decision was based on medical opinion provided by a WCB orthopedic consultant dated January 3, 2013, who stated, in part:

It remains my opinion that there is no objective medical evidence of aggravation or

enhancement of the spine condition by the workplace injuries of 2011 and 2012. Rather, the recurrence of low back pain radiating to the knees represents a progression of degenerative spinal stenosis, the natural history of such a condition. The twists and contusion of the back sustained during 2011 and 2012 caused exacerbations of pain in the environment of the preexisting condition. In general, following apparently successful relief of symptoms of spinal stenosis by decompression and fusion surgery, it is not unusual for similar symptoms to recur after some time because of the progression of spinal stenosis into adjacent un-decompressed segments of the spine.

On June 5, 2013, Review Office reconsidered its previous decision based on new medical information provided by the worker's treating sports medicine physician dated January 31, 2013 which was reviewed by a WCB orthopedic consultant on May 9, 2013. Based on its review of all the file information, Review Office confirmed that the worker was not entitled to further benefits. Review Office stated:

The Review Office prefers the opinion provided by the WCB orthopedic consultant. The referral for treatment made by [the neurosurgeon] to [the anesthesiologist] in August 2012 involved the worker's spine at L2-3. When assessed by [the anesthesiologist], another area was identified, that being the worker's SI joint, and it was treated. The Review Office does not account for either the worker's L2-3 osteoarthritis or SI joint difficulties in relation to the worker's injuries sustained on March 15, 2011 or February 1, 2012.

On August 28, 2014, the Worker Advisor Office requested that a Medical Review Panel ("MRP) be convened as it was submitted that the medical opinion outlined in the worker's physician's reports of October 12 and November 2, 2012 differed from the WCB medical opinion outlined on January 3, 2013. The worker advisor stated:

[The worker's physician] states that [the worker's] February 1, 2012 workplace accident likely enhanced his pre-existing spinal stenosis. On the other hand, [the WCB orthopedic consultant] states the workplace accident neither aggravated, nor enhanced [the worker's] pre-existing spine condition. We also submit that both [the sports medicine physician] and [the WCB orthopedic consultant's] comments meet the criteria of an "opinion" as referenced above.

Finally, this difference in medical opinion affected [the worker's] entitlement to benefits as demonstrated by the February 13, 2013 Review Office decision that denied his appeal for benefits based primarily on [the WCB orthopedic consultant's] January 3, 2013 opinion, which was copied and pasted directly in the decision.

We submit that the facts of this case satisfy all the requirements set out in The Act for the convening of a medical review panel. We respectfully request that a medical review panel be convened to address the clear difference in medical opinion on [the worker's] file.

By letter dated September 4, 2014, a WCB sector manager determined that a MRP should not be convened as the worker's physician did not provide "a full statement of the facts and reasons supporting a medical conclusion" in his reports to the WCB. The sector manager further stated:

I noted twice on file that [the WCB orthopedic consultant], our Health Care Specialist provided opinions that no enhancement occurred and compared and contrasted the various MRI's and clinical examinations conducted throughout the claims. This represents a full statement of the facts and reasons supporting his conclusion/s.

On October 28, 2014, the Worker Advisor Office asked Review Office to reconsider its previous decision regarding the worker's entitlement to benefits based on a new medical report authored by a pain specialist. If the new medical report did not alter the previous decisions, the convening of an MRP was requested. The worker advisor stated:

We do not dispute that [WCB orthopedic consultant] has provided a thorough explanation to support his medical opinion. Nevertheless, while it is apparent the sector manager preferred [WCB orthopedic consultant] opinion over that provided by [treating sports medicine physician], we submit that when considering a worker’s request for a MRP, neither The Workers Compensation Act, or relevant policy, requires that the opposing physician’ opinions be equally detailed.

It is true that [WCB orthopedic consultant] talks at length about the MRI findings, but this is seemingly because he believes there must be diagnostic evidence of structural anatomic changes in order to accept that an enhancement related to trauma occurred. On the other hand, it appears evident from [worker's physician's] November 2, 2012 report (which we also cited in our MRP request, but the sector manager did not speak of) that he does not share [WCB orthopedic consultant's] opinion on this matter when stating:

I would also take issue with the sole criterion used by your consultant to establish

aggravation or enhancement. Imaging of the lumbar spine is a notoriously poor measure for determining the clinical status of a patient. There can be advanced degenerative changes in lumbar imaging without symptoms and individuals can have significant symptoms with relatively normal imaging. I would state that the traditional medical criteria for determining a clinical picture is a history from the patient as well as physical examination findings. I can confirm for you that the patient’s history, physical findings and what also appears to be imaging, all indicate that he probably sustained an enhancement (permanent worsening) of his lumbar spine (emphasis mine).

In closing, based on the new medical report enclosed supporting a causal connection between the 2012 MRI findings and [the worker's] workplace accidents, which we submit is also consistent with previous opinions provided by [treating sports medicine physician], we ask Review Office to grant [the worker's] request for further benefits.

In regard to the request for a MRP, we submit both [worker's physician's] October 12 and November 2, 2012 reports constitute an “opinion” as he supports an enhancement occurred by discussing [the worker's] pre and post-accident MRI findings, as well as his symptoms and clinical findings following the 2012 workplace accident.

On December 19, 2014, Review Office determined that there was no entitlement to further benefits on either claim and that an MRP should not be convened. Review Office referred to the comments made by the worker's physician in his reports dated October 12 and November 2, 2012 and it also considered the details contained in the WCB medical opinion outlined on January 3, 2013. Review Office stated:

In summary, the sport medicine physician's statement indicates the second MRI identifies an enhancement of spinal stenosis (noted to be severe) at L2-L3 which he feels was caused by a workplace accident. However, the Review Office determines that "a full statement of the facts and reasons supporting a medical conclusion" has not been provided. Although the sport medicine physician states the findings are different when reviewing the worker's MRI's, we do not find that this is enough to constitute a medical conclusion which is supported by a full statement of facts and reasons. As such, a MRP should not be convened.

On February 23, 2015, the Worker Advisor Office requested Review Office to consider another report from the worker's physician which stated that the February 2012 workplace accident likely enhanced the worker's pre-existing spinal stenosis. If the new report did not alter previous Review Office decisions regarding the worker's entitlement to benefits, the convening of an MRP was requested.

On March 26, 2015, Review Office confirmed that an MRP should not be convened.

Review Office reviewed the medical report dated February 10, 2015 from the sports medicine physician and found that it contained similar information as his previous reports. In assessing its content, Review Office concluded that the definition of an "opinion" as defined in subsection 67(1) had not been met. On April 28, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing 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 worker advisor who provided a written submission in support of the worker's appeal. The submission incorporated the original submission on this matter dated August 28, 2014 as well as subsequent submissions to Review Office dated October 28, 2014 and February 23, 2015.

The worker's representative disagreed with the Review Office determination that the worker's physician (sports medicine specialist) had not provided a full statement of the facts and reasons supporting a medical conclusion. In his February 23, 2015 correspondence the worker advisor submitted that:

To be clear, the difference of medical opinion between [WCB orthopedic consultant] and [worker's physician] deals with causation. [WCB orthopedic consultant] states the June 2012 MRI findings are non-compensable, pre-existing degenerative conditions unaffected by the February 2012 workplace accident. On the other hand, [worker's physician's] position is that the February 2012 workplace accident likely enhanced [worker's] pre-existing spinal stenosis, specifically at the L2-L3 level of the spine.

The worker advisor submitted that the worker's physician's most recent report provides a rationale supporting his position, which constitutes an "opinion" as defined by the Act. The worker advisor submitted that:

• the worker's physician relies on the worker's self-reported change in function, clinical findings identified on the accident date and advanced imaging which revealed significant changes at the level above the worker's spinal fusion from the L3-5.
• the worker's physician noted that the "appearance of significant acceleration within one year after the compensable event, in my view establishes a probable cause and effect relationship."

Employer's Position

The employer was represented by its compensation coordinator. In a written submission dated September 22, 2015, the employer representative indicated that the request by the worker was based on a perceived difference of opinion between the worker's physician and the WCB orthopedic consultant.

The employer representative reviewed the February 10, 2015 opinion of the worker's physician and contrasted it with the opinions of the WCB orthopedic consultant as expressed in memos dated October 4, 2012, January 3, 2013, and May 9, 2013. The employer representative submitted that:

It would appear that the sole contentious issue is whether the degeneration noted at L2-3 was accelerated by the compensable incident of February 2012 or not. [WCB medical officer] has indicated, in his opinion, that there is no evidence that would support such a theory, [worker's physician] acknowledges as does [WCB medical officer], that degenerative changes at adjacent spinal levels, are not unexpected following a spinal fusion. That notwithstanding, [worker's physician] suggests "that [worker's] condition represents a permanent worsening of the underlying pre-existing condition." This in our opinion, is pure speculation in the part of [worker's physician].

The employer representative submitted that the worker's physician's position has not satisfied the full definition of an opinion as set out in subsection 67(1) of the Act.

Analysis

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

The WCB medical officer's opinion was set out in three memos dated October 4, 2012, January 3, 2013, and May 9, 2013 on the worker's file. In his February 1, 2012 memo the WCB medical officer opined:

It is recognized that fusion of the spine puts at risk adjoining spinal segments which are exposed to the additional movement and shock absorption. For a diagnosis to be confirmed of aggravation or enhancement of the pre-existing fused lumbar spine, one would require anatomic changes related to trauma. Imaging studies do not confirm such changes. For that reason, it is more probable that current symptoms are related to the natural history of spinal stenosis rather than the workplace injury.

The radiology report of the MRI dated 10-May-2011 is now on WCB file and may be compared with that of 8-June-2012. No significant interim changes in the appearance of the fused segments L3 to L4 are noted. Examples of traumatic change of appearance at L3-L5 would include but would not be limited to bone fracture, changes of alignment of the spinal segments, loosening of pedicle screws or breakage of inter-segmental rods.

Such changes are not identified. MRI appearance of non-specific enhancement, possibly representing bone or muscle edema in the 8-June-2012 study do not indicate significant structural anatomic changes that would be correlated with prolonged symptoms.

Example of traumatic change at L2-L3 segments would include but would not be limited to bone fracture, or acute disc protrusion or extrusion. Such changes are not identified. The changes of spinal stenosis at L2-L3 segment are not considered to be the result of trauma and are more likely the result of progression and extension of the degenerative spinal stenosis which was previously treated surgically at L3 to L5 levels.

In his February 10, 2015 report, the worker's physician opined that:

Subsequent diagnostic imaging after the fall in February of 2012 revealed a change in the underlying MRI findings. The MRI of June 2012, approximately four months after the compensable event and approximately one year after the prior MRI, revealed degenerative retrolisthesis at L2-3 with a shallow disc bulge. The disc level is described as having severe central stenosis.

Reviewer Comment

This was not articulated in the prior MRI report.

The MRI revealed osseous prominence at the facet joints and posterior ligamentum flavum hypertrophy...

My medical opinion is that [worker's] condition represents a permanent worsening of an underlying pre-existing condition. The patient had an acute injury with signs of local tissue trauma involving contusion, heat and redness, as well as regional tenderness. There was limitation of spinal motion. Subsequent advanced imaging has revealed significant changes at the level above the spinal fusion from L3-5. Although these changes are not unexpected, their appearance of significant acceleration within one year after the compensable event, in my view, establishes a probable cause and effect relationship. Therefore, in review, there is a probable cause, that being a fall down several stairs on the ice, falling directly on the back. In this case, there is a probable effect, that being perifusion degenerative perturbation with a worsening of degenerative changes at the L2, 3, 4 level, based on advanced imaging. The biologic plausibility of this relationship is sound in that it is well known that the segments above and below spinal fusions are more susceptible to traumatic loading during traumatic events. Therefore, the medically probable conclusion is that there is a relationship between the event in question and the permanent worsening of the patient's anatomy and clinical expression of that anatomy. The fact that the patient gets relief with injections at the

L2-3 level also indicates that there is a probable cause/effect relationship between the anatomic change and the patient's symptomatology.

The panel finds that the worker's physician and WCB medical advisor are in general agreement

of the facts surrounding the claim. However there is a difference of opinion between the

worker's physician and the WCB medical advisor on the relationship of the worker's symptoms

and the workplace injury. The worker's physician believes there is a relationship while the WCB

medical advisor sees no relationship. The worker's physician asserts that the imaging studies

shows trauma and acceleration of the workplace injury while the WCB medical advisor asserts

that the imaging shows only degeneration.

The panel finds that the worker's physician's letter meets the requirements of subsection 67(1) of

the Act, specifically that the worker's physician's letter is a full statement of facts and reasons

supporting a medical conclusion.

The panel also finds there is a difference of opinion between a WCB medical officer and the worker's physician on a medical matter affecting compensation. As the worker has requested that an MRP be convened, this panel agrees the matter must be referred to an MRP for its opinion.

The worker’s appeal of this issue is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 12th day of November, 2015