Akyildiz v Nisselle
[2004] VSC 4
•23 January 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6765 of 2003
| TURGAY AKYILDIZ | Applicant |
| v | |
| PAUL NISSELLE AND OTHERS | Respondents |
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JUDGE: | NATHAN J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 December 2003 | |
DATE OF JUDGMENT: | 23 January 2004 | |
CASE MAY BE CITED AS: | Akyildiz v Nisselle and Ors | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 4 | |
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Accident Compensation Act 1985 s.91 – The A.M.A. Guides to the Evaluation of Permanent Injury, Ch 3, para 3.1.F, J and K. Table 11 – Calculation of injury to arm or its parts.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr I. Fehring | Clark & Toop |
| For the Sixth, Seventh and Eighth Respondents | Mr M. Fleming | TAC Law Pty Ltd |
HIS HONOUR:
Turgay Akyildiz caught his left upper arm in a tyre building machine at his place of employment on 20 November 2000. As a result, he was injured and suffered permanent injury to his left upper arm, some psychiatric disabilities, in turn resulting in a whole of body impairment. It is the extent of that impairment, and how the Medical Panel arrived at its assessment of a 24 percent, which it did on 20 June 2003, which forms the foundation of this review. The Medical Panel to which I have referred was constituted pursuant to the Accident Compensation Act 1985. Its function is to decide the extent of an employee's injury in line with the "Guides to the Evaluation of Permanent Impairment" of the Australian Medical Association, the fourth edition thereof, (the "Guides").
In this case the worker's treating consultant physician Peter Blombery has now given an assessment based on the Guides which is in excess of that arrived at by the Medical Panel. However, it must be said that opinion was delivered on 14 July 2003, that is some four months after the Medical Panel had made its decision. Dr Blombery's assessment, and it is readily conceded he is an expert in these matters, was that Mr Akyildiz has a 33 percent whole of body or global permanent disability. The percentage figures are critical. The common law right of a worker to sue in tort can only be invoked when the global assessment arising from a work injury exceeds 30 percent.
The decisions and reason of Medical Panels, are reviewable under the terms of the Administration Law Act 1978 (see also Masters v McCubbery[1]). It is the submission of the appellant that the Medical Panel in this case failed to consider matters which it was required to take into account or did considered irrelevant matters. In so doing, jurisdictional error has occurred which invalidates the decisions. Craig v South Australia[2] and Minister for Immigration and Ethnic Affairs v Yusef[3] were relied upon. I have no doubt the submission, so far as it goes, is correct and this matter is properly before this Court. That being so, it is conceded a Medical Panel was bound to comply with the rules of natural justice. I refer to the formulation expressed by Mason J in Kioa v West[4] and in particular, so far as the principles expressed to apply to Medical Panels, referred to by Smith J in Weerappah v Nisselle[5].
[1][1996] 1 VR 635
[2](1995) 184 CLR 163 at 179
[3](2001) 206 CLR 323
[4](19985) 159 CLR 550 at 583
[5][1999] VSC 249
I come to the terms of the Medical Panel's decision in this case. The Medical Panel formed its opinion in response to a referral from the applicant's Workcover agent pursuant to the Act, s.104B(9). It recorded its decision in response to the question: What is the degree of impairment resulting from the accepted injury assessed in accordance with s.91 (of the Act)? In the Panel's opinion the worker has a whole person impairment of 15 percent resulting from the accepted physical injuries to the neck and arm/shoulder. The degree of impairment is permanent. The Panel is also of the opinion that the worker has a psychiatric impairment of 10 percent resulting from the accepted post-traumatic stress disorder injury when assessed in accordance with s.91(2) of the Act; the degree of psychiatric impairment is permanent within the meaning of the Act. For the purposes of s.134A, B(3) and (15) of the Act there is a combined whole person impairment of 24 percent resulting from the accepted physical and psychiatric injuries. The Panel, in its reasons, stated as follows:
"The Panel concluded that the worker is suffering from mechanical left cervical spine dysfunction and a complex regional pain syndrome, type 1 involving the left arm relevant to the accepted neck and arm/shoulder injuries."
It also referred to the psychiatric assessment, which is not under contest here, and I shall not take that matter further. It continued:
"The Panel conducted an impairment assessment of the accepted physical injuries in accordance with the AMA Guides. The Panel considered that no further information was required from the worker's treating practitioner as to carry out the assessment."
I interpolate that the Panel had before it an opinion of Dr Blombery of 18 May 2002 wherein he stated under a section headed "Final Opinion" as follows:
"Mr Akyildiz has ongoing features of a complex regional pain syndrome, type 2 affecting the left arm. There is quite a major component of sympathetically maintained pain and it is entirely possible that Mr Akyildiz will require further trials of sympathetic blockades in the future."
Thereafter followed various suggestions as to possible future treatments and he added:
"In regard to his ability to be able to work, he certainly has no capacity for his previous job as a tyre builder. He will not be able to perform any job where he has had to use his left arm to any significant degree but he would be able to perform jobs using his right arm. In addition he has ongoing and quite severe pain which is requiring potent medications … I felt that he was incapacitated for work and it may well be several months or even years before he is able to return to light duties only using his right arm … Should you require further information please let me know."
It should be noted that Mr Blombery did not give a percentage assessment in his report which was before the Medical Panel.
As I have already observed, the Panel did not, at the time it made its decision, require further information from Dr Blombery but it did take his report of May into account at arriving at its global figure. It also had before it the opinions of Mr Roy Gillott, an expert surgeon, and Associate Professor Kilpatrick, an expert physician and urologist. Mr Gillott opined as follows:
"[Mr Akyildiz] appears to have developed a chronic condition viz complex regional pain syndrome, type 1 for which he is under the care of Dr P.A. Blombery. It would appear that his impairment has now stabilised and the prognosis for subsequent significant improvement is poor …. In accordance with the Guides I assess the claimant as suffering a combined whole person impairment of 24 percent."
Associate Professor Kilpatrick reported thus:
"I note this man has been diagnosed by some of the specialists as having a reflex sympathetic dystrophy or chronic regional pain syndrome, type 2. Although it is possible this man originally had a reflex sympathetic dystrophy or chronic regional pain syndrome, currently there are no objective findings to support this diagnosis. In addition he has well developed musculature and had attended a gym on a daily basis for up to an hour a day doing weightlifting. This in my opinion is not consistent with the diagnosis. He admits that the left arm pain is now much improved and most of his problems relate to the shoulder and neck. His major concern relates to the weakness and sensory loss which does not in my opinion have an organic basis."
She considered there was no neuralgic impairment according to the AMA Guides.
The Medical Panel which consisted of an orthopaedic surgeon, a neurosurgeon, a muscular skeletal physician and a psychiatrist also physically examined Mr Akyildiz.
However, in as report of July 2003 Dr Blomburg wrote as follows:
"In my previous report I suggested that the patient may have had a complex regional pain syndrome, type 2 or causalgia. This diagnosis is made when a patient presents with features of pain and autonomic disturbance as in complex regional pain syndrome, type 1, but where there is a specific nerve injury present. It was my opinion that he had sustained a brachial plexus track injury at the time of the accident but there was no investigational or hard clinical evidence of this injury, I withdraw my previous statement about complex regional pain syndrome, type 2 and change the diagnosis to complex regional pain syndrome, type 1. In terms both in impairment assessment and clinical management complex regional pain syndromes, types 1 and 2 are essential identical. The specific process for impairment assessment of a patient with causalgia or reflex sympathetic dystrophy, i.e. complex regional pain syndrome, types 1 or 2, is outlined on page 56 of the Guides under the heading 'Causalgia and Reflex Sympathetic Dystrophy'. There are four steps involved which are outlined in the last paragraph of the second column of page 56. The first of these is to rate the upper extremity impairment due to loss of motion of each joint involved …
Mr Akyildiz has a reduced range of movements of the left shoulder and the left elbow as per the attachment, with a 9 percent upper extremity impairment due to the left shoulder and a 2 percent impairment due to the left elbow. The second step is to 'rate the sensory deficit or pain impairment according to instructions in this section and table 11A (page 48)'. This step has been omitted in the Medical Panel's evaluation. As Mr Akyildiz had pain involving his entire arm from the shoulder to the hand, the most appropriate distribution to use is that of the C5 to T1 nerve route as in table 13. Since the pain involves the entire arm it would not be appropriate to specify deficits of individual peripheral nerves referred to in table 15.
In terms of the degree of sensory deficit of each of these C5 to T1 nerve routes using table 11A, I would grade Mr Akyildiz's pain as pain which occurs with activity, i.e. grade 3. This permits a range of sensory deficit from 26–60 percent and I place Mr Akyildiz's sensory deficit at 50 percent. This then results in a 2.5 percent impairment for C5, C7, C8 and T1 nerve routes which I have rounded up to 3 and a 4 percent impairment for the C6 nerve route.
The third step specified in the Guides is to rate the motor deficit impairment of the injured peripheral nerve if it applies. There is no motor deficit impairment of an injured peripheral nerve as such. Nevertheless, Mr Akyildiz has a very marked reduction in power of hand grip on the affected side, which is an important part of his disability and needs to be taken into account. I therefore use table 34 which is the upper extremity impairment for loss of strength. The basis for this is outlined on page 64, third paragraph where it states: 'In a rare case, if the examiner believes the patient's loss of strength represents an impairing factor that has not been considered adequately the loss of strength may be rated separately.' As Mr Akyildiz has a 85 percent loss of strength of hand grip he would therefore be classified as having a 61 to 100 percent strength loss index corresponding to a 30 percent upper extremity impairment.
Combining these impairments of the upper limb as specified in the Guides on page 56 gives him a 48 percent upper extremity impairment which corresponds to a 29 percent whole person impairment. In addition there is a reduced range of movement of the cervical spine with 30 degrees each efflexion and extension and 30 degrees each of right and left lateral flexion. I classify this as a DRE category 2 impairment corresponding to a 5 percent whole person impairment.
Combining the arm and cervical spine impairments gives him a whole person impairment of 33 percent and it is my opinion that this impairment is permanent."
In the section of his report dealing with comments Dr Blombery stated this, among other things:
"In regard to the report of the Medical Panel they state on page 3 of the reasons for opinion, third paragraph: 'The Panel concluded that the worker is suffering from mechanical left cervical spine dysfunction and a complex regional pain syndrome, type 1, involving the left arm relevant to the accepted neck and arm/shoulder injuries.'
They state in the penultimate paragraph on that page: 'The Panel assesses the left arm/shoulder injury according to section 3.1 of chapter 3."
"In fact the Panel has not performed the appropriate assessment as outlined on page 56 for a patient with reflex sympathetic dystrophy, which equates to complex regional pain syndrome, type 1, as explained previously. They have omitted to take into account any impairment for pain as well as any impairment for motor dysfunction and these make a substantial difference to Mr Akyildiz's overall impairment rating."
"It is my opinion that the Medical Panel's opinion has not evaluated complex regional pain syndrome, type 1, in the appropriate manner and as a consequence, the Medical Panel has underestimated Mr Akyildiz's degree of impairment."
I have chosen to emphasise the above sections of the report as they are at the core of the applicant's submission that the Medical Panel has failed to take into account relevant factors and took into account irrelevant ones. Further, I note that the Bar Panel found as a fact a Type 1, not a Type 2, chronic regional pain syndrome.
Mr O'Loughlin, one of Her Majesty's counsel, together with Mr Fehring, contended that the Medical Panel erred by failing to take into account a relevant consideration namely the impairment attributable to that particular medical condition assessed by reference to s.3.1K and table 11 of chapter 3 of the Guides. Furthermore, it erred by confining its attention to ss.3.1J (the shoulder) and 3.1I (the elbow) of chapter 3 of the Guides and failed to take into account s.3.1K (impairment due to peripheral nerve disorders) and table 11 of the Guides. O’Loughlin contended that complex regional pain syndrome is another name for reflex sympathetic dystrophy (RSD) and this is the condition the Medical panel must have found. Therefore it erred in failing to take into account the impairment of that particular medical condition assessed by reference to 3.1K and table 11. It erred by confining its attention to 3.1J the shoulder, the d.1I the elbow. He said the panel erred by failing to give reasons showing why 3.1K and table 11 was not taken into account. For completeness, I rehearse those provisions.
The Guides, chapter 3, 3.1K is entitled "Impairment of the Upper Extremity Due to Peripheral Nerve Disorders". It recites in part:
"This section presents a method of evaluating upper extremity impairments related to disorders of the spinal nerves (C5 to T1), the brachial plexus and the peripheral nerves at the upper extremity. …
To evaluate impairment resulting from the effects of peripheral nerve lesions, it is necessary to determine the extent of loss of function due to (1) sensory deficits or pain (table 11 page 48) and (2) motor deficits (table 12 page 49). …
If an impairment results strictly from a peripheral nerve lesion the physician should NOT apply impairment percents from s.3 if through 3.1J of this chapter and this section because a duplication and an unwarranted increase in the impairment percent would result. …
Only persistent pain or discomfort that leads to permanent loss of function, in spite of maximum effort towards medical rehabilitation and allowing an optimal period of time for physiological adjustment, should be evaluated as a permanent impairment. Pain that does not meet one or more of the above criteria is not considered to be within the scope of this section."
Table 11 is entitled "Determining Impairment of the Upper Extremity Due to Pain or Sensory Deficit Resulting from Peripheral Nerve Disorders" (“P.N.D.”) (my emphasis). There follows a table concerned with decreasing sensibilities.
Mr Gorton, one of Her Majesty's counsel, and Mr Fleming submitted the applicant sought to review a finding of fact which was open for the Medical Panel to make. I find this submission to be correct. Furthermore, I find that the fact finding relating to the degree of impairment, seems to have been arrived at, not only as a result of the Panel's own investigations, but also after what it referred to as a careful assessment of the written material. That being so, it is plain the Panel rejected the opinion of the Associate Professor but accepted Mr Gillott. The Panel found that Mr Akyildiz, amongst other things, suffered from "complex regional pain syndrome, type 1 which involved his left arm and was relevant to the accepted neck and arm/shoulder injuries". This is a finding of fact and not of itself reviewable. Of course, the construction of the Guides is a question of law but when the application of the Guides to the factual circumstances as presented by the worker and the medical material produces an assessment in line with the Guides, that is a finding of fact. Gorton’s main point was that 3.1K table 11 only applies where there is impairment to the upper extremity due to peripheral nerve disorders. That PND is the essential platform from which to found a 3.1K recovery. But PND relates to the injury to those nerves producing either sensory deficits or motor deficits. An impairment resulting from PND should not be assessed under both 3.1F and 3.1J and also 3.1K because that would be a fatal duplication. But if the restriction motion for mobility is not due to PND then ss.3.1F and J should be used. The Medical Panel simply did not find any peripheral nerve disorder and made findings which go against it. Therefore they properly assessed the shoulder and elbow and not the whole upper arm.
In my view, the Medical Panel properly assessed Mr Akyildiz under chapter 3 and gave reasons which explain why table 11 in s.3.1K applies where there is an impairment due to the upper extremity, that is, of the arm due to peripheral nerve disorders. Those disorders are defined in s.3.1K is directed towards impairment due to injury to those nerves as per table 11 or motor deficits as per table 12 which is not applicable. Therefore, impairment or global dysfunction resulting strictly from peripheral nerve lesions should not be assessed under ss.3.1F to 3.1J and also s.3.1K because to do so would offend the double dipping prohibition referred to in the Guides, chapter 3 at p.56. I add as an aside that if restrictions of movement are not due to peripheral nerve lesions then s.3.1F and 3.1J should be applied. Sensations assessed under table 11 of s.3.1K are those restricted and associated with peripheral nerve disorders under the heading "Sensory Deficits and Pain".
It was the presence of a specific nerve injury which Dr Blombery asserted as a fact in his second report of July, which prompted him to alter his diagnosis from complex regional pain syndrome, type 2, or causalgia, to complex regional pain syndrome, type 1. He then contended that the second rating step under table 11A was omitted by the Medical Panel. But it must be said the Medical Panel had before it evidence from its own examination but also the opinion of Dr Kilpatrick that there was no nerve or neurological involvement. Accordingly it was more than open for the Medical Panel not to identify any peripheral nerve disorder but rather make findings which tend to negative that condition. For example, it accepted there had been a global decrease in sensation throughout the whole left arm but reflexes were normal. It found there was no evidence of radiculopathy (any diseased condition of roots of spinal nerves). Additionally it noted that on two occasions nerve conduction tests were held but the results were negative. On the positive side the Medical Panel found that there was either adhesive capsulitis or bursitis of the shoulder which would be an explanation of the applicant's complaints and that he had a congenital condition placing one shoulder out of line with the other. In the result it appears that table 11 was not applicable because no peripheral nerve lesions had been found.
Complex regional pain syndrome, type 1, is the name now applied to the complaint formerly referred to as reflex sympathetic dystrophy, or RSD in the Guides. The Guides do not suggest that it is due to a nerve injury or any condition which could properly be described as either major or minor causalgia or complex regional pain syndrome, type 2. Mr Akyildiz RSD condition could have been of a type not associated with injury to a peripheral nerve and no such nerve was identified by Dr Blombery. Therefore, assessment for RSD of this type obliges the assessor to implement ss.3.1F to 3.1J in accordance with the instructions in this section to calculate the sensory deficit or pain impairment. Those instructions require the assessment of sensory deficits and pain due to peripheral nerve lesions and does not warrant any other form of assessment. The Panel found there was no mechanical defect due to an injured peripheral nerve. Therefore the Panel was entitled to come to the view there was no basis in applying table 11 to Mr Akyildiz's injury.
This leads me to the view that the Panel did not misconstrue the Guides or take into account irrelevant material or fail to take into account relevant material. It was not obliged to make a positive assessment under table 11 and it was open to the Panel to make the diagnosis it did.
Mr O'Loughlin seemed to suggest that the Panel's reasoning insofar as it failed to take account of relevant factors was inadequate. I cannot accept that submission. The reasons for decision do not infer that table 11 had been disregarded or even overlooked. Rather, the expertise of the Panel in dealing with the Guides as a whole is manifest. In any event the Panel's stated reasons are entitled to a beneficial construction in favour of proper form and accuracy. See Minister for Immigration v Wu Shan Liang[6]. Under the sub-heading "The Proper Role of a Reviewing Court" Brennan CJ and Toohey, McHugh and Gummow JJ, when considering an appeal from the Full Court of the Federal Court which referred to beneficial construction, said this (p.272):
"The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."
[6](1996) 185 CLR 259 at 271
See also Ashley J in Calleja v Franet Pty Ltd[7] when dealing with a similar proposition to the one before me said:
"The panel was not committed to write a judgment such as this. It was obliged to set out, adequately though pithily, its reasoning: [Masters v McCubbery was referred to and Minister for Immigration v Wu Shan Liang]. … That does not mean, of course, that substantive inadequacies in a panel's reasons can be dismissed. In such a case, on a review such as this, the court may exercise the power given to it by s.8(4) of the Administrative Law Act. That was the course taken by O'Bryan J in Masters v McCubbery. It is not a necessary course in this case."
His Honour was referring to the power of the Court to pose a question to a Medicap Panel for further answer.
[7][2000] VSC 339, para.56
In this case, although the Panel did not refer specifically to table 11, I am satisfied that a fair and reasonable interpretation of its reasons already quoted, let alone a beneficial one, could not conclude that the table had been overlooked. In my view there is no inadequacy in the Panel's stated reasons for its conclusions.
Mr O'Loughlin did not press the point that the rules of natural justice had not been complied with, in that Mr Akyildiz had been denied procedural fairness in not having been asked to provide submissions along the lines of Dr Blombery's second report. A Medical Panel is not obliged to deliver a draft report to a worker's solicitors or to the respondent's solicitors for that matter, so that they may make submissions upon it. This proposition was established out by the House of Lords in an oft repeated decision Hoffmann, La Roche & Co v The Secretary of State for Trade and Industry[8]. Lord Diplock at p.369 said:
"The rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision."
[8][1975] AC 295
Therefore this application must fail and is dismissed accordingly. I shall hear the parties as to costs.
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