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 pursuant to subsection 67(4) of the Act. A file review was held on February 2, 2021 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

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

Background

The WCB accepted the worker’s claim for a lumbar strain involving the worker’s back and right hip that was incurred as a result of a workplace accident that occurred on May 14, 2012 when the worker stepped down heavily into a trench. On January 11, 2013, the WCB confirmed the worker’s diagnosis of a lumbar strain in the environment of pre-existing conditions and recommended a reconditioning program that, upon completion, would enable the worker to return to full regular duties.

On February 5, 2013, the worker requested Review Office reconsider the WCB’s decision that the claim was only accepted for a back and hip strain. On April 23, 2013, Review Office found the worker’s claim was acceptable for a back and right hip strain and the worker was not entitled to benefits beyond July 23, 2012. After additional medical information was provided, on September 17, 2013 and again on October 11, 2014, Review Office upheld the original April 23, 2013 decision.

The worker disagreed with the WCB’s decisions and on January 22, 2015, requested a medical review panel be convened, providing a copy of a January 8, 2015 report from a physician with an interest in occupational medicine. The physician noted copies of the worker’s diagnostic imaging had been reviewed and discussed with a radiologist on December 10, 2014. The physician outlined that the worker has pre-existing spinal issues related to a previous spinal surgery and “…a developmentally narrow spinal canal with shortened pedicles that has been identified” but noted the worker’s progressive symptoms occurred after the workplace accident. The physician stated disagreement with the April 11, 2013 opinion of the WCB orthopedic consultant and provided “…the clinical and radiologic picture is one of significant enhancement of the lower lumbar degenerative changes with new appearance of broad based left paracentral and foraminal disc protrusion displacing the left S1 nerve root and encroachment of the right S1 nerve root, and new central canal stenosis at L3, L4.”

The WCB advised the worker on January 30, 2015 that the request for a medical review panel (“MRP”) was denied, noting s 67(1) of The Workers Compensation Act (the “Act”) related to medical review panels requires “…a full statement of the facts and reasons supporting a medical conclusion…” and determined the opinion provided by the physician with an interest in occupational medicine did not meet that definition. The WCB noted the April 11, 2013 opinion of the WCB orthopedic consultant provided facts and a full explanation in support of the stated opinions.

On July 7, 2020, the worker’s representative requested reconsideration of the WCB’s decision to Review Office. In their submission, the representative provided the requirement of the Act had been met and the WCB should convene a medical review panel.

On October 6, 2020, Review Office determined that a medical review panel should not be convened, noting the physician with an interest in occupational medicine speculated on a connection between the workplace accident and the worker’s L3/L4 disc damage but did not provide an explanation other than the damage was not on the MRI study in 2006. Further, Review Office noted the physician did not provide explanation for the worker’s ability to perform full regular duties until October 2012, or the worker’s September 2012 onset of numbness in both feet, months after the May 14, 2012 workplace accident. Accordingly, Review Office found the criteria to convene a MRP under s 67(4) of the Act were not met and a medical review panel should not be convened.

The worker’s representative filed an appeal with the Appeal Commission on October 26, 2020. A file review was arranged for February 2, 2021.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act and regulations as well as the policies established by the WCB’s Board of Directors.

The worker has requested that an MRP be convened pursuant to s 67(4) of the Act. The relevant provisions of the Act are ss 67(4) and 67(1). Section 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.

Section 67(1) defines opinion as "a full statement of the facts and reasons supporting a medical conclusion."

Worker's Position

The worker was assisted by a worker advisor who relied upon written submissions made to Review Office dated October 1, 2020 and July 7, 2020 in support of this appeal.

The worker’s position is that the October 9, 2014 narrative report of the physician with an interest in occupational medicine meets the definition of an opinion under the provisions of the Act and that this opinion is contrary to that provided by the WCB orthopedic specialist on April 11, 2013. Further, this difference of opinion affected the duration of the worker’s entitlement to benefits as set out in the Review Office decision of April 23, 2013. As such, the worker argues that the opinion meets the legislative definition of an opinion and given that there is a difference in the conclusions reached by the physician with an interest in occupational medicine and the WCB orthopedic consultant that impacts the worker’s entitlement to benefits, the worker is entitled to have a MRP convened.

The worker advisor also noted deficiencies in the opinion of the WCB orthopedic consultant in providing explanation of how the mechanism of injury would support the diagnostic conclusion reached or would not result in any change to the worker’s pre-existing condition, in identifying relevant clinical or examination findings and in failing to provide explanation for the worker’s functioning in the period following the workplace injury.

Employer's Position

The employer was represented in the appeal by an advocate who provided a written submission outlining the position of the employer with respect to the question on appeal.

The employer’s position is that a MRP should not be convened as the legislative criteria for convening such a panel have not been met. The employer advocate stated that while the WCB orthopedic consultant provided a full statement of facts in support of the conclusion that the diagnosis was a strain type injury in the background of a pre-existing condition that was not altered by the workplace accident, the physician with an interest in occupational medicine did not provide a full statement of the facts and reasons supporting the conclusion reached that the medical evidence does support a finding of enhancement of the worker’s pre-existing conditions.

The employer advocate argued that the medical conclusion reached by the WCB orthopedic consultant is fully explained with reference to file documentation including diagnostic testing, clinical correlation, examination findings and a deterioration in the worker’s functioning unrelated to the workplace injury. In contrast, the employer advocate noted that the medical conclusion reached by the physician with an interest in occupational medicine was largely speculative and not supported by a full statement of facts and reasons.

Analysis

For the worker’s appeal to succeed, the panel must find that there is difference of medical opinion that affects entitlement to compensation or medical aid benefits. The panel is not able to make that finding for the reasons that follow.

In order to grant a worker’s request to initiate a Medical Review Panel, the Act requires that there must be a difference in opinion, expressed in writing, between a medical officer of the WCB and a physician selected by the worker, and further, that this differing opinion must affect entitlement to compensation or medical aid benefits. Only a full statement of the facts and reasons supporting a medical conclusion will meet the definition of an opinion set out in the Act.

The panel reviewed and considered the submissions from the worker advocate and the employer advocate with respect to the April 11, 2013 memorandum of the WCB orthopedic specialist and the October 9, 2014 correspondence from the physician with an interest in occupational medicine. The panel also reviewed the medical information on file including the specific reports in question.

There is no question in this case as to whether the physicians reached differing conclusions, nor whether there was a resulting impact upon determination of the worker’s entitlement to benefits. Rather, the worker’s appeal hinges entirely upon whether or not the physicians have provided opinions as defined by the Act.

The panel noted that the April 11, 2013 memorandum of the WCB orthopedic specialist contains a brief description of the circumstances of the accident resulting in the worker’s injury and references the medical reporting on file resulting in the initial diagnosis. The MRI findings relating to the worker’s pre-existing condition are summarized, compared and explained. The conclusion reached with respect to whether the worker’s symptomatic presentation at that time is related to the compensable workplace accident is supported by reference to the facts of the claim including the worker’s demonstrated functional abilities following the accident and reports of subsequent deterioration in symptoms. The conclusions reached by the WCB orthopedic specialist are supported by a full statement of the facts and reasons and we find that this report meets the definition of an opinion as set out in s 67(1) of the Act.

The panel considered the October 9, 2014 report of the physician with an interest in occupational medicine to determine whether it also meets the statutory definition of opinion. We noted that the physician outlines the worker’s history of back injury predating the compensable injury in question, as well as the job duties of the worker. The report provides a description of the circumstances of the accident and the worker’s subsequent symptomatic presentation. The report references the initial diagnosis on May 23, 2012 but does not reference the follow up report by the treating physician of June 8, 2012. The MRI study results are reviewed and compared. The worker’s job duties for the period of October – December 2012 are summarized, as well as the details of an unrelated medical procedure and a subsequent injury outside of work. The physician also outlines the treatment provided to the worker through to the autumn of 2014 when the report was provided. In the closing paragraphs, the physician outlines the conclusion reached that as a result of the workplace accident, the worker’s pre-existing degenerative disease was enhanced, noting disagreement with the contrary conclusion reached by the WCB orthopedic specialist.

The report of the physician with an interest in occupational medicine provides a detailed factual background and description of the worker’s injury, symptoms and treatment, but the panel finds that the report fails to provide a full statement of the reasons for the conclusion reached that differs from the conclusion reached by the WCB orthopedic specialist. In this respect, the October 9, 2014 report of the physician with an interest in occupational medicine does not meet the definition of an opinion as set out in s 67(1) of the Act.

The panel therefore finds, on a balance of probabilities, that the criteria to convene a Medical Review Panel under the provisions of s 67(4) of the Act have not been met. For this reason, we determine that a Medical Review panel should not be convened under subsection 67(4) of the Act. 

The worker's appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of February, 2021