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 should not be convened under subsection 67(4) of The Workers Compensation Act (the "Act"). A file review was held on January 16, 2018 to consider the worker's appeal.

Issue

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

Decision

A Medical Review Panel should not be convened under subsection 67(4) of the Act.

Background

The worker injured her lower back at work on August 23, 2015 when she bent over to put two pots away. The injury was reported to her employer the same day and she sought treatment from a chiropractor and her doctor the following day. She was diagnosed with a "lumbo pelvic subluxation" by the chiropractor and a "back strain" by the doctor.

The worker returned to work, with restrictions, beginning in September, 2015. Due to ongoing complaints of pain at work, the WCB arranged a call in examination of the worker by a WCB chiropractic consultant on October 7, 2015.

The WCB chiropractic consultant stated, in part:

In my opinion, examination presentation has been influenced by behavioural and possibly volitional factors. The claimant's unguarded movements while leaving the building suggests that her functional capacity is greater than that demonstrated during examination. I am unable to account for this difference in function or her presentation during physical examination based on the mechanism of injury or compensable diagnosis. I am not aware of a physical diagnosis that would account for the claimant's presentation.

Based on the examination and observations following examination, a diagnosis was not determined that would pose a risk with increased function, including return to work. The claimant's functional capacity cannot be medically estimated based on examination.

On October 13, 2015, the worker was advised that she was able to return to work, with restrictions, and her employer was advised of the restrictions on October 14, 2015. A further discussion between the WCB, the worker and her employer occurred on December 10, 2015 to discuss accommodating the worker's modified duties. However, as the worker was being referred to a neurosurgeon, the WCB deferred discussions regarding the worker returning to work until after the worker had seen the neurosurgeon.

The neurosurgeon's January 7, 2016 examination of the worker indicated "The lumbrosacral and gluteal discomfort that the patient is experiencing is probably mechanical/musculoskeletal. The same applies to the component extending to the thigh whereas the latter may be radiculopathy. The etiology of the numbness of the left leg given its extension does not have an obvious monoradicular character and therefore I do not think that the disc protrusion at L5-S1 is an adequate radiological correlate. I would not recommend a surgical intervention at this point in time."

A WCB medical advisor's report dated February 3, 2016 opined:

In relation to the low back/thigh pain, the described mechanism of injury of a twisting motion of the low back would apply forces to the low back that results in a diagnosis of low back strain/non specific low back pain. The low back symptoms on a temporal basis have been reported from the day of the workplace accident.

In relation to the entire left leg numbness, a clear pathological lesion was not identified on advanced imaging (October 31, 2015 lumbosacral spine CT scan and December 3, 2015 lumbosacral spine MRI) that clinical correlated with the January 7, 2016 treating spine surgeon examination.

The worker was seen by a second neurologist on March 29, 2016 who advised that he was referring the worker to an orthopedic surgeon for "potential surgery." A call in examination was conducted by a WCB orthopedic specialist on June 14, 2016. The WCB orthopedic specialist concluded:

This assessment has failed to identify any evidence of a left lower limb radiculopathy. The absence of the left ankle reflex is long standing and of no current significance.

…

Extreme over-reaction to examination testing and grossly abnormal posture and gait requiring use of a cane.

This assessment has not identified that the claimant is unable to perform the proposed modified duties, and also that there is no objective evidence of continuing loss of function arising out of this compensable injury.

The current restrictions are rescinded.

The WCB advised the worker on June 22, 2016 that wage loss benefits would be paid to June 29, 2016, inclusive and final as there was no change found in the worker's two MRIs conducted in December 2015 and March 2016 suggesting that the worker's disc herniation was chronic and occurred prior to the workplace injury on August 23, 2015. It was felt that the worker had sustained a strain at the time of the injury and it was the WCB's opinion that she had recovered from the injury.

On July 13, 2016, the worker's representative requested reconsideration of the WCB's June 22, 2016 decision to the Review Office advising that, on a balance of probabilities, the worker continues to suffer a loss of earning capacity related to her compensable injury.

A further report from the WCB orthopedic specialist, dated August 18, 2016, noted that after reviewing the May 20, 2016 report from the Spine Assessment Clinic, their opinion remained that "…the worker's current difficulties no longer relate to the compensable injury of August 23, 2015." Additional medical reports were submitted by the worker's representative on July 18, 2016 and July 22, 2016. The worker was advised by the WCB on August 22, 2016 that after review of these new reports, their opinion remained that she has recovered from her workplace injury and there would be no change to their decision of June 22, 2016.

Review Office was asked by the worker's representative to reconsider the WCB's June 22, 2016 decision. On February 1, 2017, Review Office upheld WCB's decision as it was determined, on a balance of probabilities, that the worker's lower back injury was a back strain in the presence of a pre-existing degenerative disc disease that was not caused or structurally altered by her workplace injury. Review Office could not establish a causal relationship between the worker's workplace injury and her current lower back complaints.

On May 8, 2017, the worker's representative submitted additional medical information to Review Office for further consideration. The worker's representative's submission included a report dated May 3, 2017 by an occupational medicine physician. In response to the worker's representative's request that the occupational medicine physician provide an opinion as to the diagnosis to account for the worker's low back difficulties and to identify the medical evidence in support of his diagnosis, the occupational medicine physician stated the following:

Regarding your questions.

1. What, in your medical opinion is the diagnosis to account for [the worker's] current low back difficulties? Please identify the medical evidence in support of your diagnosis?

Based on my assessment and review, the principal diagnosis is L5-S1 disc protrusion with radiculopathy, that involves sensory loss in the left S1 dermatome, and significant left leg weakness. There is profound neuropathic weakness of the left great toe; assessing muscle weakness more proximally is limited by irritation of musculoskeletal pain from multiple sites in the lower lumbar, left him girdle and thigh regions. The full picture is complicated by de-conditioning, and chronic dysfunctional substitution patterns of movement, standing and sitting, which contribute to paresthesias and altered sensation in a non-dermatomal distribution. The clinical picture is compounded by significant anxiety and distress, which has not been adequately documented, much of which was precipitated by the August 2015 work injury, worsening pain and dysfunction with failed attempted to RTW, unsuccessful treatment by multiple providers, and loss of support and income with closure of the WCB claim.

2. In your medical opinion, and on the balance of probabilities, is this diagnosis causally related to [the worker's] August 23, 2015 workplace accident? Please provide a rationale for your opinion and identify supporting medical evidence.

Yes, in my medical opinion, the biomechanics of the August 23, 2015 workplace accident directly resulted in significant new or enhanced L4-L5 and L5-S1 disc protrusion in painful onset of left lower extremity radiculopathy.

Prior to the August 2015 accident she had functional back movements without pain impairment, and without left leg symptomatology on or off the job. [Chiropractor] who initiated treatment August 24, 2015 noted "L4-L5 disc signs" and "radiations to the left knee" and "numbness on the left thigh".

In the acute post-injury phase [the worker's] condition progressively worsened with chiropractic treatments apparently directed at S-I joint dysfunction (lumbo-pelvic subluxation), and from the effects of the ill-advised return to work exertions in the first month post-injury.

On May 11, 2017, WCB orthopedic specialist #1 provided an extensive review of the worker's 2014 and 2015 WCB claims, as well as the May 3, 2017 occupational medicine physician's letter. He concluded that there was no evidence of radiculopathy on the worker's file and that the worker's current presentation was not related to the workplace injury.

On May 26, 2017, Review Office advised that, after reviewing the new medical information submitted on behalf of the worker as well as obtaining the further opinion from a medical consultant noted above, it remained Review Office's opinion that there is no entitlement to wage loss benefits beyond June 24, 2016.

On June 6, 2017, the worker's representative submitted a letter to the WCB requesting a Medical Review Panel ("MRP") be convened, stating, in part:

"We submit [the worker] is entitled to an MRP because there is a difference in medical opinion, which has affected her entitlement to further benefits. The difference in medical opinion is between [occupational medicine doctor], a physician selected by the worker, and both [WCB orthopedic specialist #1] and [WCB orthopedic specialist #2], medical advisors to the Board…

The WCB advised the worker on June 16, 2017 that her request for the MRP was denied as it was felt the report provided by the occupational medical doctor was not "…a full statement of facts and reasons…" supporting his medical conclusions that the worker's continuing difficulties were related to her workplace injury. The worker's representative requested reconsideration of the decision to the Review Office. On August 31, 2017, Review Office upheld WCB's decision. Review Office determined that the criteria for an MRP that a full statement of facts or a difference of opinion of a medical matter had not been met.

On September 1, 2017, the worker's representative appealed Review Office's decision to the Appeal Commission and a file review was held on January 16, 2018.

Reasons

Applicable Legislation and Policy

The Appeal Commission and this panel are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB Board of Directors.

Subsections 67(1) and 67(4)

This was an appeal by the worker who was seeking to have an MRP convened under subsection 67(4) of the Act. This subsection provides:

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) is also relevant to this appeal. It defines an opinion as “…a full statement of the facts and reasons supporting a medical conclusion.”

Worker's Position

The worker's union representative provided a written submission to the panel that asserts that "there are two very distinct and divergent views on a number of medical matters, which had a direct impact on her entitlement to benefits."

The representative states that the worker's occupational medicine physician concluded that the worker's low back and left leg symptoms were due to a radiculopathy that was caused by her workplace accident which either caused or enhanced pre-existing disc protrusions at L4-5 and L5-S1, leaving the worker unable to work in any capacity. This contrasted with two WCB physicians who determined that the disc protrusions were pre-existing and that the workplace accident only caused a strain type injury, and further that there was also no evidence of radiculopathy.

The representative suggested that Review Office incorrectly weighed the strength or the plausibility of the differing opinions in denying an MRP. This was not the requirement in subsection 67 of the Act; the worker's physician did provide an opinion support with facts and reasons.

Employer's Position

The employer did not participate.

Analysis

For the worker to succeed in her appeal, the panel must find that the criteria under subsections 67(1) and 67(4) of the Act have been met for an MRP to be granted. The panel was unable to make this finding.

The Act requires that there must be a difference of opinion between the worker's physician and a WCB medical advisor on a medical matter that affects entitlement to compensation, and that the opinion must be a full statement of facts and reasons supporting a medical conclusion. All these criteria must be met.

In the panel's view, it is necessary that the differing opinions be based upon a common set of facts in order for there to be a meaningful role for an MRP. MRPs are convened to provide a medical opinion where a difference of medical opinion exists on a file. MRPs are not adjudicative bodies; the adjudication of facts where there are contradictory or non-common sets of facts is a matter for the WCB or Appeal Commission. It is not the function of an MRP, as part of its investigation or deliberations, to adjudicate on which facts are correct; rather, an MRP is tasked with taking the common statements of fact and then providing opinions on medical matters that flow from these facts, and to assist the appropriate adjudicators in understanding complex or conflicting medical information on the file. Faced with contradicting facts and potentially choosing a set of facts inconsistent with what an adjudicator might determine, leaves an MRP's work as potentially meaningless.

In the case at hand, the panel notes a significant difference in the statements of facts relied upon by the worker's occupational medicine physician and the WCB medical advisor, in particular, the description of when the worker's neurological symptoms first occurred:

• The worker's occupational medicine physician concludes that the worker's accident "directly resulted" in significant new or enhanced disc protrusions and radiculopathy, which suggests a continuity of neurological symptoms from the outset of the claim. The physician does not provide a factual history to support a direct linkage to the outset of the claim. He simply states that there is a direct result.

• The WCB orthopedic consultant #1 provides a detailed review of every medical report at the outset of the claim and notes the absence of any neurological symptoms on the file. These findings are essentially adopted by the WCB's orthopedic consultant #2.

In the panel's view, the differences in statements of fact that are the foundation of the medical opinions under consideration are significant and substantial, and are not reconcilable for the intended purpose of an MRP.

The panel therefore finds, on a balance of probabilities, that the Act's requirement of a "full statement of the facts" has not been met, which is one of the mandatory requirements to trigger an MRP. Accordingly, the panel finds that an MRP should not be convened under subsection 67(4) of the Act.

In making this finding, the panel does wish to point out that the granting or denial of an MRP is not determinative of the rights of the worker to benefits. The MRP opinion is only one of the factors that is considered in the decision making process. Regardless of whether or not an MRP is granted under subsection 67(4) of the Act, it remains open to the WCB and the Appeal Commission to weigh all facts and medical evidence on the file as part of the adjudication process, in making decisions regarding entitlement to benefits.

The worker's appeal is denied.

Panel Members

B. Hartley, Presiding Officer
M. Kernaghan, Commissioner
A. Finkel, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of February, 2018