The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was no basis to convene a Medical Review Panel in relation to the worker's claim. A file review was held on April 5, 2016 to consider the worker's 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 not be convened pursuant to subsection 67(4) of the Act.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to his low back and right foot that occurred in the workplace on June 4, 1990. His claim for compensation was accepted and various types of benefits have been paid to the worker over the course of his claim. The compensable diagnoses noted on the claim file are varied and include partial cauda equina syndrome based on the accepted findings of a February 22, 2010 Medical Review Panel ("MRP").

In a May 28, 2013 report to the worker's union representative, a physiatrist commented that the initial diagnosis of "cauda equina syndrome" was not entirely correct but was rather "conus medullaris syndrome." The specialist indicated that both conditions had very similar presentations with neurologic damage. However, the cauda equina syndrome tended to have a lower motor neuron bladder associated with it whereas conus medullaris could have an upper motor neuron. The specialist noted that regardless of the title that was given to the worker's neurologic impairment, the ramification of these diagnoses remained the same.

On February 19, 2015, a WCB medical advisor was asked to review the file information and provide clarification regarding the compensable diagnosis in light of the physiatrist's diagnosis of conus medullaris syndrome. In a response dated February 20, 2015, the WCB medical advisor stated in part:

Cauda equina and conus medullaris syndromes are typically caused by something compressing the structures, most commonly spinal stenosis, disc herniation, tumor, fracture, or infection/abscess. They can also be caused by irritation such as after a spinal injection. Whether it's cauda equina or conus medullaris will depend on where the compression or irritation occurs. In [the worker's] case, there has never been any imaging that documented any compression so the exact etiology and level of the condition has never been provided. It has been assumed that the straddle injury somehow damaged the nerves in the lower spinal cord.

There are many factors that would differentiate cauda equina vs conus medullaris:…

From file review, [the physiatrist] has made the dx (diagnosis) of conus medullaris based only on the bladder function. She has not mentioned tone or reflexes in her reports.

The MRP provided the dx of partial cauda equina syndrome…[T]he worker's progression since then has not been consistent with one more than the other, so it's difficult to determine if one dx is more accurate than the other. In the big picture, the worker's neurological presentation has been accepted as being related to the C/I (compensable injury) and management doesn't change whether it's called cauda equina or conus medullaris.

In e-mail correspondence to a WCB sector manager dated May 8, 2015, the union representative noted there was a clear difference of medical opinion between the worker's physiatrist and the WCB medical advisor regarding the worker's compensable diagnosis. The representative stated that given this clear difference of medical opinion, which affected the worker's entitlement to compensation benefits including PPI, medical aid benefits and wage loss benefits for subsequent injuries, an MRP was being requested.

In e-mail correspondence to the union representative dated May 15, 2015, the WCB sector manager stated:

…There is an issue that was noted from [the WCB medical advisor's] summary pertaining to the diagnosis provided by [the physiatrist], which came after the 2010 MRP, of conus medullaris. First, it was based on a singular functional limitation, bladder function, and did not contain a full statement of facts to substantiate her comments. Also, the manner in which the worker's symptomology was being medically managed would not be altered in any substantive way whether the condition was diagnosed as conus medullaris or cauda equina. Based on the aforementioned, I will not be proceeding with a new MRP on [the worker's] claim.

On May 26, 2015, the union representative appealed the sector manager's decision to Review Office.

On June 23, 2015, Review Office wrote the worker to advise that it found no basis to move forward with an MRP with respect to a difference of opinion in diagnosis, cauda equina versus conus medullaris syndrome. Review Office stated that it considers issues that are tied to benefit entitlement, and was unable to identify a benefit entitlement issue in regard to a change in the diagnosis. Changing the diagnosis would not affect any benefits that the worker was currently receiving.

On September 15, 2015, the worker's union representative appealed Review Office's decision to the Appeal Commission.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

As the worker's injury occurred in 1990, his request is governed by the Act as it existed at that time. In 1990, subsection 67(4) of the Act read as follows:

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 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, 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 Act stated:

67(1) In this section,

"opinion" means a full statement of the facts and reasons supporting a medical conclusion;

"panel" means a medical review panel.

WCB Policy 42.10.70, Medical Review Panels (the "Policy") states, in part: "A differing opinion on the medical matter must affect entitlement to compensation or medical aid benefits."

Worker's Position

The worker's position, as set out in the notice of appeal, was that the WCB's policies and legislation had not been properly applied; that there was a dispute over the worker's diagnosis and resultant symptoms and this affected the worker's entitlement to all past, current and future WCB benefits.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act. For the worker's appeal to be successful, the panel must find that there is a difference of medical opinion that affects entitlement to compensation or medical aid benefits. The panel is unable to make that finding.

To initiate the convening of an MRP, there must be a differing opinion between a medical officer of the WCB and a physician selected by the worker. Having carefully reviewed and considered the information on file, the panel has determined that this requirement has not been met. To the extent that there is a difference of opinion, it is between the compensable diagnosis, which was adopted from the findings of the MRP in 2010, and the 2013 comments of the physiatrist. The panel notes, however, that the MRP is not a medical officer of the WCB. The MRP is an independent body established under the Act. The opinion or findings of the MRP are therefore not those of a "medical officer of the board", and a difference of opinion with the findings of the first MRP does not give rise to an entitlement to a second MRP under subsection 67(4) of the Act.

While the union representative referred to a difference of opinion between the physiatrist and the WCB medical advisor as outlined in her February 20, 2015 report, the panel notes that the medical advisor's report essentially clarifies and supports the accepted findings of the 2010 MRP. The suggested difference of opinion therefore remains a difference of opinion with the accepted findings of the MRP which, as indicated previously, does not fall within the requirements of subsection 67(4) of the Act.

The panel further finds that the requirement that the differing opinions affect entitlement to compensation or medical aid benefits is not satisfied in this instance. While it was submitted in general terms that the difference of medical opinion affected all past, current and future WCB benefits, no specifics were provided and the panel is unable to identify any evidence which would support that position. The panel notes that the physiatrist stated that regardless of the title given to the worker's neurologic impairment, the ramification of the two diagnoses remains the same. The WCB medical advisor similarly noted that management does not change whether the diagnosis is cauda equina or conus medullaris.

Based on the evidence, including the report of the physiatrist, the panel is unable to find that a difference in opinion or diagnosis would have any impact on the worker's benefits or treatment.

The panel therefore finds that a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 31st day of May, 2016