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. A file review was held on June 1, 2022 to consider the worker's appeal.

Issue

Whether or not a Medical Review Panel should be convened.

Decision

A Medical Review Panel should not be convened.

Background

The WCB accepted the worker’s claim for an injury to their lower back that occurred at work on August 28, 2017, when they were pushing a heavy object and, as described "…must have moved the wrong way and the next morning I could hardly get out of bed because I was in a lot of pain." The worker initially sought medical treatment on August 31, 2017, reporting to the treating family physician they felt their injury was related to a previous WCB claim they had as the pain was in the same area, being the posterior right hip/back with no numbness to their foot and leg. In a discussion with the worker on September 11, 2017, the WCB determined that this was a new injury on a specific date and established a new claim.

On September 12, 2017, the treating family physician recommended the worker could return to work on September 13, 2017 on light duties. On September 26, 2017, the physician reported gradual improvement and recommended the worker could return to full, regular duties. An October 29, 2017 MRI study of the worker’s lumbar spine indicated a "Small to moderate disc protrusion at L5-S1…"

A WCB medical advisor reviewed the worker’s file on November 15, 2017 and provided an opinion that the worker's presentation was "…consistent with right low back radicular pain. In the absence of neurological findings, a true radiculopathy is not confirmed." The medical advisor noted the mechanism of injury was a sudden heavy push, with the worker reporting symptoms within a few days and as such, the diagnosis was medically accounted for in relation to the workplace accident. The medical advisor stated, "Most episodes of radicular pain resolve within a few weeks to 3 months" and the worker had improved and was cleared for their full regular duties by September 26, 2017, within the normal recovery period. The medical advisor also provided that continued improvement with some pain would be consistent for the natural history of the worker's diagnosis, and further that the worker's radicular pain may resolve but the disc pathology indicated on the imaging may remain.

On December 7, 2017, the WCB advised the worker they were not entitled to further benefits as it determined the worker was recovered from the August 28, 2017 workplace accident.

On September 14, 2018, the worker contacted the WCB to report they had recently had to take time off work due to their lower back injury. When they sought medical treatment, the treating physician related their difficulties to the August 28, 2017 workplace accident and referred the worker to a specialist. The worker advised their symptoms started on August 31, 2018 after lifting heavy objects at work, and the pain progressed the following day. The WCB advised the incident was considered a new injury at work and a WCB claim was established for this injury.

The worker's representative contacted the WCB on December 18, 2020, to request the WCB reconsider the December 7, 2017 decision the worker was not entitled to further benefits. As part of their request, the worker's representative asked the WCB to review medical information provided on the worker's other WCB claims, as the representative queried whether the worker's compensable L5-S1 disc protrusion continued after the worker's claim was ended in November 2017. The representative noted the WCB medical advisor's opinion on the worker's other WCB claim that the worker had presented with recurrent episodes of radicular pain and noted those episodes would be compensable and accepted by the WCB if caused by the ongoing L5-S1 disc protrusion.

The worker's WCB claim files were reviewed by a WCB medical advisor on January 5, 2021. The medical advisor noted the treating orthopedic specialist's comments on the initial assessment on April 8, 2019 as to only some restriction of right straight leg raise testing noted and no mention of a workplace accident. The orthopedic specialist noted there was evidence of mechanical instability of L5-S1, and the WCB medical advisor opined that this use of the term "mechanical" suggested non-radicular symptoms and related to progressive degenerative disc disease, supported by the diagnostic imaging and the worker's reported symptoms, "…with typical remission and relapse pattern as part of the natural progression of this diagnosis." Further, the advisor noted "…the development of a large disc sequestration would not relate directly to the workplace injuries, and could have resulted in a similar emergent situation as has now occurred…"

On January 6, 2021, the WCB medical advisor who provided the November 15, 2017 opinion provided a further opinion in response to a request from the case manager to respond to queries by the worker's representative. The medical advisor disagreed with the conclusion reached by the worker’s representative that the November 15, 2017 opinion confirmed that the August 28, 2017 workplace accident caused the disc protrusion indicated on the MRI study. The medical advisor noted the prior opinion did not state that the accident caused the disc protrusion but that an episode of radicular pain arising from protrusion was medically accounted for. In other words, the accident caused the disc pathology to be symptomatic. The medical advisor went on to note that the January 5, 2021 opinion of the WCB orthopedic consultant indicated that the disc changes noted on the MRI are degenerative in nature and that this supports the conclusion that the August 28, 2017 workplace accident caused an aggravation of the pre-existing degenerative disc. They noted an aggravation is temporary and once resolved, any further symptoms from the pre-existing condition would relate to the natural history of the degenerative condition.

On January 11, 2021, the WCB advised the worker and their representative that after a review of the new medical information, there would be no change to the earlier decision the worker was not entitled to further benefits.

On February 8, 2021, the worker's representative requested reconsideration of the WCB's decision. The employer provided a submission in support of the WCB’s decision on February 15, 2021. Review Office upheld the WCB's decision on April 7, 2021.

The worker's representative provided a letter to Review Office on July 20, 2021, with a copy of a June 24, 2021 opinion by the worker's treating orthopedic specialist and requested Review Office reconsider their decision on the worker's entitlement to benefits. The treating orthopedic specialist provided their opinion "…the original disc herniation was the result of the compensable accident that [the worker] reported." Further, the specialist disputed the opinion of the WCB medical advisor the worker had a pre-existing degenerative condition noting there was no medical evidence to support the identified disc herniation pre-dated 2017. The employer provided information in support of the Review Office's decisions on August 25, 2021, and on September 7, 2021 the worker’s representative provided a further submission. On September 8, 2021 Review Office upheld the decision the worker was not entitled to further benefits.

The worker's representative wrote to the WCB on November 9, 2021 and requested that a Medical Review Panel (“MRP”) be convened in accordance with the WCB policy as there was a difference in medical opinion between the worker's treating orthopedic specialists and the WCB medical advisors who reviewed the worker's file. The representative noted this difference of opinion affected the worker's entitlement to further WCB benefits.

On December 21, 2021, the WCB advised the worker's representative their request for a Medical Review Panel was denied as the opinion by the worker's treating orthopedic specialist did not meet the criteria for providing a full statement of the facts and reasons supporting a medical conclusion.

On December 31, 2021, the worker's representative requested Review Office reconsider the WCB's decision not to convene a Medical Review Panel. The representative noted in their submission, the WCB appeared to have adjudicated the weight of the opposing medical opinions rather than whether or not the treating orthopedic specialist's comments represented an opposing opinion to that of the WCB medical advisors. On February 14, 2022, the employer provided a submission in support of the WCB's decision.

Review Office determined on March 1, 2022, based on the information on the worker's file, the treating orthopedic specialist and the WCB medical advisors were in general agreement on the basic facts of the worker's claim and as such, the criteria to convene a MRP had not been met.

The worker's representative filed an appeal with the Appeal Commission on March 7, 2022. A file review was arranged for June 1, 2022.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act") and regulations as well as the policies established by the WCB’s Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

The worker has requested that a 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 the WCB and the Review Office in support of the worker’s request that a Medical Review Panel be initiated.

As outlined in the worker advisor’s submission to the WCB of November 5, 2021, the worker’s position is that there is a difference of medical opinion on a matter that affects the worker’s entitlement to compensation or benefits as between the treating orthopedic surgeon, in their opinion dated June 24, 2021, and the WCB medical advisor opinions of January 5, 2021 and January 6, 2021. Specifically, the difference of opinion relates “…both to the compensability of the worker’s October 2017 MRI-confirmed L5-S1 disc protrusion, as well as with respect to the compensability of the worker’s May 2020 L5-S1 level surgery.” The worker submits that a MRP should be convened on the basis of this difference of medical opinion that affects the worker’s entitlement to WCB benefits, pursuant to the provisions of s 67(4) of the Act.

In the Worker Appeal of Claims Decision form, the worker advisor further noted their belief that the decision of the Review Office was incorrect “Because it was improper to declare the orthopedic surgeon’s opinion as speculative based on their used of the words (i.e. “if” and “assume”) and hence decline the appeal as happened. …[W]e believe the criteria in this case are met. Taken as a whole, the operating surgeon’s June 24, 2021 letter represents an “opinion” as defined in the Act.”

In sum, the worker’s position is that the worker’s appeal should be granted and a MRP should be convened as the statutory criteria for granting such a request by a worker have been met in this case.

Employer’s Position

The employer was represented in the appeal by its WCB coordinator who provided a written submission dated May 18, 2022 for the panel’s consideration.

The employer’s position as outlined by their representative is that the worker’s appeal should be denied as it cannot be established that the statutory criteria for a worker’s request to convene a MRP have been met.

The employer’s representative stated their belief that the opinions of the treating orthopedic surgeon and the WCB orthopedic advisor concur with respect to the opinion that the worker “…had evidence of a black disc in [their] lumbar spine.” Further, the employer believes that the treating orthopedic specialist, the WCB orthopedic consultant and the WCB medical advisor “…are in general agreement with the basic facts surrounding the claim.

The employer’s representative also stated that the June 24, 2021 opinion of the treating orthopedic surgeon does not provide “…a full statement of the facts nor does it provide the reasons supporting his medical conclusion” and contains statements that the employer believes are speculative.

In sum, the employer’s position is that the June 24, 2021 letter from the treating orthopedic surgeon does not meet the requirements for an “opinion” as set out in the Act and further, that there is general agreement amongst the medical providers expressing opinions as to the basic facts surrounding the claim. Therefore, the employer submits that the criteria for convening a MRP have not been established and the MRP should not be convened. 

Analysis

The question on appeal is whether a Medical Review Panel should be convened. 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 such a finding as detailed in the reasons that follow.

For the panel to grant a worker’s request to initiate a MRP, the Act requires that we must find there is 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. An opinion for the purposes of this provision of the Act is defined as “a full statement of the facts and reasons supporting a medical conclusion.” Such an opinion must therefore contain a full outline of the facts upon which is it based as well as a medical conclusion that is supported by reasons. It is not sufficient to engage the MRP process that there be a difference of the medical conclusions reached as the Act requires a difference of opinion where each opinion considered meets the statutory definition of opinion. Further, when the worker is requesting that a MRP be convened, the opinion of the worker’s treating physician must be expressed in a certificate of the physician in writing.

In the present case there are three documents for the panel to consider and assess in terms of whether the statutory criteria are met: a January 5, 2021 file memorandum from the WCB orthopedic consultant; a January 6, 2021 file memorandum from the WCB medical advisor; and a June 24, 2021 letter from the treating orthopedic surgeon.

The January 5, 2021 file memorandum of the WCB orthopedic consultant relates to the question posed by the WCB case manager as to whether the L5-S1 surgical process can be “medically accounted for as a consequence of the episode of radicular back pain accepted on this claim”. The orthopedic consultant reviewed the worker’s claim file, as well as two other claims relating to workplace accidents of May 8, 2017 and August 31, 2018. The memorandum outlines the mechanism of injury in each of these three claims and summarizes the medical reporting in respect of each. The medical advisor reviewed the prior reporting from the treating orthopedic surgeon noting that they stated there was evidence of mechanical instability of L5-S1 which the orthopedic advisor agreed would relate to progressive degenerative disc disease, which was “supported to some extent by the MRI studies and the pattern of symptomology.” The orthopedic consultant noted the surgeon made no mention of relation to a workplace accident in the course of their current management of the worker’s injury and correctly noted that “…the development of a large disc sequestration would not relate directly to the workplace injuries, and could have resulted in a similar emergent situation as has now occurred, with no new lower back injury reported.” The orthopedic consultant concluded that the worker’s lower back injury claims and the clinical imaging relate to the typical presentation of progressive lumbar disc degeneration, “…with typical remission and relapse pattern as part of the natural progression of this diagnosis” and therefore the surgery of May 23, 2020 was not authorized in relation to the worker’s compensable injury.

The January 6, 2021 file memorandum of the WCB medical consultant relates to the question of whether the medical consultant’s previous opinion of November 15, 2017 remains valid in light of new information received since that date. The WCB medical consultant noted they had referred the question to the WCB orthopedic consultant for consideration, with the conclusions outlined in the January 5, 2021 file memorandum referenced above. The medical consultant briefly outlined the mechanism of injury in each of the worker’s three low back claims, including the present claim and noted, briefly, the prior WCB medical opinions provided on each claim. Having reference to these previous medical opinions and to the January 5, 2021 memorandum from the WCB orthopedic consultant, the WCB medical consultant concluded “…there is no evidence to support that the progression to a sequestered disc and/or the surgery performed on the L5S1 sequestered disc was medically related to” the worker’s WCB back claims. The medical consultant went on to confirm that their prior statement that the worker’s MRI study indicated “a correlate for right sided radicular pain (disc contacting the right S1 nerve root” and that radicular pain can be medically accounted for in relation to the mechanism of injury does not mean that the compensable accident caused the disc protrusion but that the accident caused the disc protrusion to become symptomatic. In other words, the accident resulted in an aggravation of the worker’s pre-existing degenerative disc condition and an aggravation is by definition temporary and when the symptoms resolve, the degenerative condition remains. The medical consultant went on to note that the initial episode of radicular symptoms was the result of the aggravation of the degenerative condition but that future episodes of radicular pain would be consistent with the natural history of a degenerative condition unless related to a subsequent accident “of sufficient force to materially alter the degenerative condition.”

The June 24, 2021 letter from the treating orthopedic surgeon to the worker advisor responds to the specific questions set out in the worker advisor’s letter to the physician of June 10, 2021. The worker advisor summarized the worker’s three back-related WCB claims, of May 8, 2017, August 28, 2017 and August 31, 2018 and outlined the information provided to the surgeon for review, followed by 5 specific questions related to causation of the worker’s injury low back injury and impact on any pre-existing condition. The orthopedic surgeon’s letter noted the worker’s “numerous compensation claims” and that the initiating claim was in 2017. A summary of the medical findings from that time are noted and the surgeon also summarized their own clinical findings from 2019 onward. The surgeon concluded that “There is no doubt that the original disc herniation was the result of the compensationable (sic) accident that [the worker] had reported”. The orthopedic surgeon went on to take issue with the WCB medical advisor’s opinion that the disc herniation was a pre-existing injury, explained the terms “mechanical instability” and “black disc”, noted the black disc was likely pre-existing, and concluded, with reference to the 2020 diagnosis of cauda equina syndrome, that “…if the 2017 injury was accepted as a disc injury then this can be related to that. However, as mentioned, this could happen at any point in time to anybody as a de novo new injury.”

The panel considered whether these documents meet the statutory definition of opinion as set out in s 67(1) of the Act, and if so, whether there is a difference of opinion that affects the worker’s entitlement to compensation.

With respect to the January 5, 2021 memorandum of the WCB orthopedic consultant, the panel is satisfied that the document meets the requirements that an opinion provide “a full statement of the facts and reasons supporting a medical conclusion”. We note that the orthopedic consultant summarized the facts of each of the worker’s three lower back-related WCB claims and the related medical findings to the date of the memorandum before detailing the reasons supporting their conclusion, based on the clinical findings and medical reporting, that the May 2020 L5-S1 surgery was not medically accounted for as a consequence of the August 2017 compensable injury. We find that this document provides a full statement of the facts and reasons supporting the medical conclusions reached.

The panel is further satisfied that the January 6, 2021 memorandum of the WCB medical advisor meets the statutory requirements of an opinion. It references the worker’s three prior lower back injury claims and briefly describes the mechanism of injury in each. Further, the memorandum summarizes prior WCB Healthcare opinions with respect to each claim, as well as the January 5, 2021 memorandum of the WCB orthopedic consultant. The medical advisor considered the questions posed by the worker advisor as to whether the L5-S1 disc protrusion was compensable and whether the worker’s recurrent radicular pain was a consequence of the worker’s “compensable disc protrusion and/or the accepted initial radicular episode” and outlined their reasoned response to each question with reference to the supporting evidence. As such, we find that it meets the requirements of containing a full statement of the facts and reasons supporting the medical conclusions reached.

The panel is not satisfied that the June 24, 2021 letter from the treating orthopedic surgeon meets the statutory requirements of an opinion, as a “full statement of the facts and reasons supporting a medical conclusion.” The letter references three prior injuries but does not summarize or describe the facts of each. The surgeon offers their conclusions that the L5-S1 disc herniation was caused by the compensable accident that the worker reported and that the disc herniation did not predate 2017, but does not clarify or elaborate upon which accident, in particular, they are referring to nor are there any specific medical findings or other reasons referenced in support of this conclusion. They noted “…the fact that the patient had a specific injury followed by back pain and leg pain we have to assume that this is the actual date of the injury. There was therefore no previous aggravation or enhancement that caused the protrusion.” Again, this assertion is made without reference to the facts or findings relating to a specific accident. In this case, where there are three compensable low back injuries, including two in 2017, it is necessary to be clear as to which event the surgeon believes to be the date of the herniation injury. The surgeon went on to state that the worker “had a chronic disc injury of L5-S1” that ultimately led to the worker’s lower back instability and cauda equina syndrome in 2020 and that “if the 2017 injury was accepted as a disc injury then this can be related to that.” Again, the panel noted the lack of specificity as to which 2017 injury the surgeon is referring to. This absence of clarity illustrates the necessity for inclusion of “a full statement of the facts and reasons supporting a medical conclusion.” The panel did note that the worker advisor, in seeking the orthopedic surgeon’s opinion, specifically requested that the physician explain their conclusions “…in consideration of the accident descriptions, the worker’s subjective reports, and the noted clinical findings”; however, the response provided does not do so. For this reason, the panel finds that the June 24, 2021 letter from the treating orthopedic surgeon does not meet the statutory requirements of an opinion.

Having reached this, it is not necessary for the panel to consider whether there is in this case, a difference of opinion that affects the worker’s entitlement to compensation. Indeed, given the lack of clarity in terms of the conclusions reached by the treating orthopedic surgeon, the panel would be challenged to determine whether any difference in opinion between the WCB medical consultants and the treating surgeon would affect the worker’s entitlement to compensation in respect of this particular claim.

The panel is satisfied, on the basis of the evidence before us and on the standard of 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 and the worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of July, 2022