Allen v Dux Manufacturing Pty Limited - [2021] NSWPICMP 126

DETERMINATION OF APPEAL PANEL
CITATION:	Allen v Dux Manufacturing Pty Limited [2021] NSWPICMP 126
APPELLANT:	Louis Allen
RESPONDENT:	Dux Manufacturing Pty Limited
APPEAL PANEL:	Member R J Perrignon Dr John Garvey Dr Cyril Wong
DATE OF DECISION:	19 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Appeal from assessment of whole person impairment (left lower extremity, digestive system); whether left leg symptoms satisfied the criteria for a class 1 or class 2 assessment; whether assessor erred in finding there was no causal nexus between rectal bleeding and injury; Held- MAC revoked and new one issued.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant worker, Mr Allen, appeals from the Medical Assessment Certificate of Approved Medical Specialist Dr Crane, dated 4 November 2020.
On 27 March 2007, Mr Allen suffered a paraumbilical hernia at work. After coming to surgical repair at Bowral Hospital, he suffered thrombosis in the left lower extremity, which was treated conservatively.
Approved Medical Specialist Dr Crane assessed a 4% whole person impairment (4% left lower extremity, 0% digestive system, 0% scarring) as a result of injury on 27 March 2007. In doing so, he assessed a class 1 impairment in respect of the left lower extremity, and in respect of the digestive system found that rectal bleeding did not result from injury on 27 March 2007.
Mr Allen appeals from the assessment:
(a) of the left lower extremity, on the basis that his symptoms were inconsistent with a class 1 impairment and consistent with a class 2 impairment, and
(b) of the digestive system, on the basis that the Approved Medical Specialist should have been satisfied that rectal bleeding resulted from injury.
No error is alleged in respect of the assessment of scarring.
On 27 January 2021, the delegate was satisfied that a ground of appeal (either the application of incorrect criteria or demonstrable error) was capable of being made out, and referred the matter to this Appeal Panel for determination.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessments in the absence of the parties and in accordance with the Guidelines. Having identified error, it referred the appellant for examination by Dr Garvey, whose report appears below.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions may be summarised as follows:
(a)   In respect of the left lower extremity, the Approved Medical Specialist’s finding that there was constant burning ache in the left lower extremity is inconsistent with the selection of a class 1 impairment. The criteria for class 1 require that there be neither claudication nor pain at rest. This finding indicates that there was pain at rest.
(b)   The same criteria also require that there be not more than, among other things, ‘asymptomatic dilation of arteries or of veins, not requiring surgery and not resulting in curtailment of activity’. The Approved Medical Specialist took a history that there was significant curtailment of activity, by reason of not being able to drive a car for more than 15 minutes, not being able to help around the house or mow the lawns, and having to take a day off work per week on average due to pain in the left lower extremity.
(c)   The signs and symptoms fit within the criteria for class 2, which are satisfied if, among other things, there is intermittent claudication on walking at least 100 yards, or ‘persistent edema of a moderate degree, incompletely controlled by elastic supports’. The Approved Medical Specialist failed to inquire or record whether claudication occurred on walking, but the history he took of constant burning ache in the left lower extremity gives rise to a fair inference that claudication is likely to be experienced on walking. The finding that the swelling never went away, and the fact that the appellant has to continue wearing elastic supports years after the injury, suggests that the swelling is incompletely controlled, satisfying the criterion for class 2 impairment.
(d)   The Approved Medical Specialist’s finding that rectal bleeding did not commence until several years ago implies a finding that it was of recent onset. This is inconsistent with the evidence in the applicant’s statement that he consulted
Dr Lambert in March 2010 for rectal bleeding associated with constipation, and Dr Lambert’s clinical notes of 17 June 2010, which record a recommendation for colonoscopy to investigate rectal bleeding.
The respondent’s submissions may be summarised as follows:
(a)   With respect to the left lower extremity, the finding that there were continuing symptoms of discomfort do not justify an inference that there is claudication, of which the appellant made no complaint.
(b)   The Approved Medical Specialist did not find asymptomatic dilation of the arteries. It follows that there could be no finding of significant curtailment of activity due to it. In any event, the history taken was not that the appellant was taking a day of work per week as at the date of examination, but rather that he did so 12 months previously, before hurting his back.
(c)   In selecting an impairment within the rage of 0% to 9%, the Approved Medical Specialist was applying his clinical judgment, as he was entitled to do. This does not disclose error.
(d)   The first criterion for a class 2 impairment (claudication on walking) is not satisfied. appellant’s complaint of pain in the left lower extremity does not amount to a complaint of claudication. There was no finding that there was claudication. The second criterion (persistent oedema) was not satisfied, because swelling was not present when stockings were removed.
(e)   With respect to rectal bleeding, ‘several years ago’ is a common phrase meaning an approximate date in the past. The Approved Medical Specialist says this was the history he obtained, and there is no evidence to the contrary. He meant that there was no nexus between rectal bleeding and injury in 2007 because bleeding commenced some years after injury. Even if had he found, consistently with the clinical notes, that rectal bleeding commenced in 2010, it would have made no difference to the outcome.

REASONING OF THE APPROVED MEDICAL SPECIALIST

The Approved Medical Specialist interviewed the worker on 9 October 2020, and examined him on 12 October 2020.
He took a history at [4] of injury on 27 March 2007 by way of umbilical hernia, and swelling mainly above the left knee after surgical repair at Bowral Hospital, which required further hospitalisation and treatment with anti-coagulants. Mr Allen told the Approved Medical Specialist that ‘he noticed varicose veins appeared in his left lower extremity within a few weeks of the diagnosis of his deep venous thrombosis’.
Dr Crane took a history of continuing pain in the left leg, noted that the worker had worn compression stockings bilaterally ever since, and that, though swelling in that leg diminished, it ‘never completely went away’.
The worker explained that in 2017 he suffered ‘increased pain and swelling of the left lower extremity’, and that scans demonstrated ‘occlusion of the left femoral vein’, for which he was treated first at Campbelltown Hospital and later at Liverpool Hospital.
Under the heading, ‘Present symptoms’, Dr Crane recorded - emphasis added:
“a constant burning ache in his legs, more marked on the left side, and he is aware of bilateral varicose veins in both lower extremitie”.
With respect to the activities of daily leaving, Dr Crane recorded: ‘… he is able to drive his automatic car for 15 minutes at a time and is not really able to help around the house. His wife has to mow the lawns.’
On examination of the left lower extremity, he noted at [5] a slight left-sided limp, varicose veins in the medial aspect of the left upper thigh, but no oedema in either lower extremity after the removal of the stockings.
In respect of the digestive system, the Approved Medical Specialist took a history of rectal bleeding ‘first noted several years ago when his bowels were opening and this is getting worse …. At colonoscopy three years ago, he had haemorrhoids banded and was told he needed to have the investigation repeated.’ He noted the ongoing use of cream to treat the haemorrhoids.
On rectal examination, he noted discomfort and three skin tags of moderate size, but no blood. He added - emphasis added:
“There were no obvious haemorrhoids on the limited examination that was possible.”
At [7] he recorded the following diagnosis:
‘A paraumbilical hernia was repaired in 2007, followed by the occurrence of a leftsided lower limb deep venous thrombosis. This was treated conservatively. Approximately ten years later, there was a recurrence of thrombosis in the left lower extremity ...’
He gave the following explanation at [10b] for assessing a 4% whole person impairment (left lower extremity):
“The left lower extremity is assessed under the AMA5 Guides, Chapter 17, Table 17-38, page 554, with a range of 0% to 9% lower extremity impairment. I have selected 9% from this range, which converts to 4% whole person impairment from Table 17-3 on page 527.
The applicant has continuing symptoms of discomfort in the left lower extremity with significant varicose veins and the need for permanently wearing compression stockings. The varicose veins have not required surgery.”
He gave the following reasons for assessing a 0% whole person impairment (digestive system):
“The problem of constipation is assessed under the WCC Guidelines, Chapter 16, Clause 16.9, page 78, where there is stated, “Constipation is a symptom, not a sign, and is generally reversible. A WPI assessment of 0% applies to constipation.”
He addressed the issue of rectal bleeding at [10c] while discussing the report of Dr Vickers, gastroenterologist:
“The history I obtained from the applicant indicated that rectal bleeding, presumably from haemorrhoids, did not start until several years ago and was not related to the work incident.”
Possibly because only a limited rectal examination was possible, and because the appellant continued to use cream to treat the haemorrhoids, the Approved Medical Specialist did not reason that there was no impairment with respect to haemorrhoids because they no longer existed, or had been successfully treated with the banding procedure mentioned above.

FINDINGS AND REASONS

Assessment of left lower extremity

The task of the Approved Medical Specialist was to assess whole person impairment in accordance with the Guidelines: section 322, Workplace Injury Management and Workers Compensation Act 1998. Chapter 3 of the Guidelines provides that Chapter 17 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th edition (AMA5) applies to the assessment of the lower extremities, subject to certain modifications.
Table 17-38 prescribes 5 classes of impairment in ascending order. Class 1 consists of a range of impairments from 0% to 9%. Class 2 comprises 10% to 39% impairment. Each class is defined by certain criteria. The task of an Approved Medical Specialist is to select the appropriate class of impairment by applying the criteria, and then, having regard to the worker’s presentation, to choose the most appropriate percentage impairment within the spectrum comprised within that class.
Table 17-38 prescribes three criteria for a class 1 impairment, each of which must be satisfied. The first is that there be, ‘Neither claudication nor pain at rest’. Broadly speaking, claudication means symptoms while walking or standing, which distinguishes it from pain at rest. It follows that the criterion is not satisfied where there is either claudication of the kind described, or pain at rest.
In this case, the Approved Medical Specialist took a history at [4] of continuing pain in the left leg. Under the heading, ‘Present symptoms’, he recorded, ‘‘a constant burning ache in his legs, more marked on the left side …’. At [10b], in his reasons for assessment, he noted ‘continuing symptoms of discomfort in the left lower extremity …’. He did not say whether the pain and discomfort occurred while walking, standing, or at rest. The Approved Medical Specialist does not record having made inquiries about the appellant’s abilities to walk. We interpret his findings to mean pain at rest. The presence of such pain prevented the appellant from satisfying the criteria for a class 1 impairment.
It follows that the selection of a class 1 impairment demonstrates error and the application of incorrect criteria, requiring that the Medical Assessment Certificate be set aside. It is unnecessary to consider the further submissions in respect of the left lower extremity.

Assessment of digestive system

As indicated, the Approved Medical Specialist assessed a 0% whole person impairment (digestive system) on the basis that there was no nexus between impairment and injury, because rectal bleeding did not commence until ‘several years ago’.
We are not able to discern what he meant by ‘several years ago’, save that rectal bleeding commenced some years before examination. No reason was given by the Approved Medical Specialist as to why a lapse in time between injury to the left lower extremity and the onset of rectal bleeding would preclude there being a causal connection between the two. It is not alleged that the injury directly caused constipation or rectal bleeding, but rather that medications taken as a result of injury did so. The Approved Medical Specialist does not expressly consider this allegation, and his reasoning does not disclose why he rejects it. In the circumstances, his reasoning is not sufficiently patent for us to discern whether it is correct.
The absence of adequate reasons amounts to error, and for that reason also the certificate must be set aside.

Report of Dr Garvey

Having identified error, the Panel referred the appellant for examination by one of its members, Medical Assessor Dr Garvey. His report appears below.
1.   “DETAILS OF MATTERS REFERRED FOR ASSESSMENT
The following matters have been referred for assessment (s 319 of the 1998 Act):
·   Date of injury: Original injury March 27, 2007
·   Body parts/systems referred: DVT and Varicose veins left lower extremity, digestive system (constipation, haemorrhoids and PR bleeding), scarring
·   Method of assessment:    Whole person impairment
2.   EVIDENCE
Documentary Evidence
The following documents were referred by the Commission for this assessment:
·   MAC November 4, 2020
Dispute: Table 17-38 for varicose veins and issue is about “constant pain” and curtailment of activities and should be in class 2
Rectal Bleeding brought about by constipation
Date of injury: March 27, 2007
Body parts referred left lower extremity varicose veins, digestive system rectal bleeding and scarring
Examination October 12, 2020
Worker was a heavy machine operator from 2002-2020
March 27, 2007 umbilical hernia which was operated upon followed by swelling of the left lower extremity and shortness of breath and treated with Clexane and Warfarin for 2 years
Compression stockings for pain in the left leg which were worn permanently but the left leg swelling did not diminish completely
2017 left femoral vein occlusion and treated at Liverpool Hospital with Apixaban and short DVT stockings
12 months before the MAC was taking off about 1 day a week due to increasing pain left lower extremity and sustained a fall hurting his back
Varicose veins left lower extremity diagnosed within a few weeks of the DVT
Symptoms: Burning ache in his legs (left > right) and bilateral varicose veins
Rectal bleeding occasionally noticed several years ago and haemorrhoids banded at colonoscopy 3 years earlier. Metamucil and Coloxyl and Microlax enema to help with bowel habit. Experiencing prolapsed haemorrhoids
ADLs: Not really able to help around the house or mow the lawns
Examination: Left-sided limp, group of varicose veins in medial aspect of left upper thigh and scattered right below-knee varicosities, no oedema noted. Thigh circumference 52 cm and 53 cm, calf circumference 37 cm and 39 cm. Arterial pulses difficult to identify. 3 moderate size skin tags on rectal examination but no obvious haemorrhoids and no blood
Assessment 4% WPI for left lower extremity (Table 17-38) for discomfort in left lower extremity with significant varicose veins and permanent compression stockings
0% WPI for constipation and 0% WPI for scarring
Injured workers statements April 29, 2020 (page 48) injured left knee, ribs and back requiring Panadeine Forte, Nurofen and Mersyndol for 7 years
Rectal bleeding started in March 2010 due to constipation
September 1, 2019 regular painkilling medication for pain in left leg and lumpy area in left thigh. Previous vein issue in right leg following car accident 25 years before hernia-related DVT
15 February 2010 left leg painful and hard. Slight bulging vein within hernia scar
July 1, 2010 (page 71) awarded 8% WPI from injury on March 27, 2007 by the then Registrar
Chronology (page 72) June 5, 2006 incompetent short saphenous vein, tributaries and lower leg perforator. Incompetent posterior tibial veins
Additional Information
The following information was obtained in accordance with Section 324(1) of the 1998 Act:
·     Nil
·   List any imaging studies provided by the worker which were not listed in the documentation provided: Nil
3.   WORKER’S DETAILS INCLUDING
·   Date of examination: Monday, 24 May 2021 3:00 PM
·   Date of birth and age at examination: 01/01/1967; age 54
·   Hand dominance:    Right
·   Details of who attended the examination:    Attended alone
·   Date of injury: March 27, 2007.
·   Employer and occupation: Dux Manufacturing Proprietary Limited; machine operator working with heavy water heater manufacturer.
4.   HISTORY RELATING TO THE INJURY
·   Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: I asked the Worker to tell me of the incident in his own words and I wrote this down as closely verbatim as was possible and reproduce it here. The Worker said that in 2007 he was working at Dux making water heaters (gas hot water systems for home use) on a Fusion Machine. These are all metal cylinders produced at a rate of about 400/day, 5 days a week and weigh about 70 kg and are made of steel. However when the weld is done, about 20 cylinders per day are deemed faulty and he had to go into the machine to lift out the faulty cylinders, retrieve them and put them on the scrap heap for recycling. In doing this retrieval 20 times per day, he developed a para umbilical hernia. He went to Dr Wik in Bowral and had surgery at Bowral Private Hospital (without the benefit of abdominal wall ultrasound) and it was found that in addition to the para umbilical hernia there was also an epigastric hernia that needed to be fixed with mesh as well, which meant more operating and anaesthetic time on the operating table.
·   The following day he could not breathe very well and he became ashen and his left leg hurt lots and after 7 days he was diagnosed with a left-sided deep venous thrombosis with pulmonary emboli and also superficial varicosities and he was treated with Warfarin followed by Cartia. Although his leg hurt, he returned to work in 5-6 months later with pain in his left leg and in 2017 the pain became quite severe. A further ultrasound was obtained and this showed a 10 cm clot in his left thigh and varicose vein started to stick out in his left thigh. He was referred by his General Practitioner to Campbletown Hospital and he was given Clexane injections for 1 day and then was referred to a Cardiovascular Surgeon at Liverpool Hospital and treated with Eliquis and compression stockings. At the moment he wears the knee length ones because he finds that the full-length ones caused too much tightness around his left thigh.
·   In addition to the left lower extremity DVT, he suffers from abdominal bloating, with haemorrhoids and constipation every day and PR bleeding daily during straining at stool
·   Present treatment:     Eliquis tablets 5 mg BD for the foreseeable future; has to wear compression stockings every day and take pain killer Palexia, Temaze to sleep; Loxalate antidepressant; Cavestat anticholesterol . Metamucil and Coloxyl for stool softening
·   Present symptoms:   Swelling, dull pain, leg goes hard in the summer and the veins stick out such that the Worker cannot walk; big bunch of veins in the thigh stick right out, haemorrhoids due to straining at stool and bleeding; unable to stand for more than 15-20 minutes and then has to elevate the left lower extremity, difficulty walking upstairs; can only walk for 10-15 minutes because of swelling and rubbing on the inner thigh and chafing; swelling of the left thigh. Burning and stinging of left thigh
·   Details of any previous or subsequent accidents, injuries or condition:     Low back pain due to slipped disc in 2012 and 2019; rotator cuff tear left shoulder 2019;
·   General health: “Not very good”
·   Work history including previous work history if relevant: Dux manufacturer employee for 18 years; previously labouring and factory work. Made redundant (medical retirement) from work in since 2019. Living on Workers Compensation weekly benefits at the moment
·   Social activities/ADL: Married man with 5 adult children who are living independently; cigarettes nil, alcohol nil. Wife works in retail sales in Mittagong. Does not leave the house much at all now. The Worker previously played golf and Rugby League
5.   FINDINGS ON PHYSICAL EXAMINATION
Examination was performed in the standing and lying positions with the compression stocking off the left lower extremity and then right lower extremity The Claimant walked normally, gait was essentially normal.
Inspection: With the compression stocking off, right thigh circumference measured 52 cm and 54 cm on the left. The right calf circumference measured 37 cm and 38 cm on the left. The measurements were repeated for accuracy and found to be consistent. There was no ankle oedema.
There were varicose veins of the medial aspect of the left inner thigh measuring about 1 cm in diameter in a cluster measuring about 10 cm. There were cutaneous venous flares in the lower thigh region. There was no evidence of pigmentation, stasis eczema or ulceration of the left lower extremity, but a healed varicose ulcer at the right medial malleolus.
Palpation: The varicose veins were not tense and there was no guttering of the subcutaneous tissue and no signs of chronic venous hypertension. The peripheral arterial circulation was normal to the dorsalis pedis and posterior tibial arteries palpable on both sides. There was no evidence of residual superficial thrombophlebitis
Abdomen. There were dilated collateral veins below the umbilicus. There was no abdominal or pelvic mass palpable. There were no lymph nodes palpable in either groin.
His waist measurement was 113 cm. There were superficial varicosities There was no sign of recurrence of para umbilical hernia.
Inspection: There was no cachexia, pallor of anaemia or jaundice. There was no clubbing of the fingers or liver palms. There were no spider naevi or stigmata of liver disease on the chest. There were Caput Medusae (distended veins in para umbilical region of abdomen). The abdomen was symmetrical but tumid in shape. There were no abdominal masses visible but discolouration due to peri-umbilical venous engorgement. There was an 8 cm midline longitudinal para umbilical incision but no sinuses or fistulas and the umbilicus was spared. There was a 10 cm appendicectomy scar There was no sign of a recurrent ventral hernia.
Palpation: There were no enlarged lymph glands palpable in the groin regions. The external potential hernia orifices were closed, the femoral pulses and pedal pulses were palpable and the external genitalia were normal. Light palpation was normal. Moderate palpation of the abdomen was normal in all quadrants.. The liver was not palpable, nor was the spleen and the kidneys were not ballottable. There were no abdominal masses palpable.
Rectal inspection revealed to stage 3 haemorrhoids and there were no fissures, fistulas and no blood. The weight was 103.7 kg and height 179.5 cm (BMI 32). I showed the Worker the Bristol Stool Chart: And he chose #1 (Separate hard lumps, like nuts (hard to pass) ).
6.   DETAILS AND DATES OF SPECIAL INVESTIGATIONS
Diagnostic imaging
May 29, 2006 left venous Doppler duplex scan Liverpool Vascular Laboratory (page 507) old recanalized thrombus distal common femoral and superficial veins. Long saphenous vein incompetent from proximal mid upper leg to saphenofemoral junction with large incompetent tributary. Medial lower leg incompetent perforator 20 cm up. Posterior tibial, peroneal and superficial femoral veins are incompetent likely due to postphlebitic syndrome. Incompetent right short saphenous vein, tributaries and lower leg perforator, incompetent posterior tibial veins (likely postphlebitic syndrome)
September 15, 2008 venous duplex study: irregular thrombus at common femoral vein with suspected post thrombotic fibrous scarring and calcification
December 2, 2008 venous duplex Doppler ultrasound no evidence of DVT but long saphenous varicosity
May 12, 2017 colonoscopy: Melanosis coli, internal haemorrhoids banded
August 31, 2017 short saphenous superficial thrombophlebitis on the right. 18 cm of long saphenous vein thrombus in the left extending to the saphenofemoral junction and 13 cm of posterior tibial peroneal trunk occlusive thrombus
October 14, 2017 superficial and deep venous thrombosis in right short saphenous system. Extensive thrombosis within long saphenous vein with extension to common femoral vein over a length of 2.5 cm partially occlusive
7.   SUMMARY
·   summary of injuries and diagnoses:
Postphlebitic left lower extremity and varicose veins
Constipation
Haemorrhage
Scarring
·   consistency of presentation
This Worker’s history and examination is consistent with his presentation
8.   EVALUATION OF PERMANENT IMPAIRMENT
My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:
a.   Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body par/system:     No
b.   Have all body parts/systems stabilized/reached maximum medical improvement?    Yes
c.   If not, please list those injuries not yet stable/at maximum medical improvement:   Not applicable
d.   If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur?    Not applicable
e.   Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?    Yes
f.    If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.   Left lower extremity with DVT diagnosed in 2006
g.   Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury. Recurrent DVT diagnosed August 31 2017
9.   THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
History, physical examination and diagnostic imaging reports
10.REASONS FOR ASSESSMENT
a.   My opinion and assessment of whole person impairment
12% WPI
In making that assessment I have taken account of the following matters: -
(Listing examination findings, investigation findings and matters of history that have determined the assessment).
The Worker is suffering from oedema of his left lower extremity which is partially controlled by calf length elastic compression stockings. There is 2 cm circumference difference between the left and right lower extremity at the thigh. Diagnostic imaging has shown deep vein thrombosis on multiple images. The Worker has two 3° haemorrhoids on physical examination which merit 1% WPI each. The likely cause of these is constipation and straining, due to pain medication ingested as a result of pain in the left lower limb. The scarring of his para umbilical hernia repair is not rateable, because it is a routine scar of a standard operative procedure (Clause 14.6, page 73). Constipation is not rateable condition (Clause 16.3)
b.   An explanation of my calculations (if applicable)
This Worker is a midrange Class 2 impairment of the left lower extremity with collateral veins. He suffers from persistent oedema of a moderate degree controlled by elastic support stockings but complains of dull pain and the leg goes hard if he stands for more than 15-20 minutes, and can only walk for 10-15 minutes because of pain and has to put his leg up to get relief. The range given by the assessing Surgeons is from 4% WPI to 28% WPI (Dr Tomlinson, vascular Surgeon). There is the issue of the previous DVT of the left lower extremity for which a substantial deduction would have to be made because of the documented postphlebitic syndrome by Dr Eric Farmer-May 29, 2006.
I assess 10%% WPI with one half deducted for pre-existing condition of DVT of left lower extremity and 0% WPI for constipation and 2% WPI for haemorrhoids.
c.   My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
Berry, Neil Surgeon medical report July 13, 2018 (page 81). Diagnosed with DVT left lower extremity May 3, 2007 following umbilical hernia repair
Colonoscopy and banding of haemorrhoids in March 2017 for constipation and rectal bleeding. Examination: haemorrhoids at 7 and 11:00 positions. Severe distension of superficial veins left thigh. Assessment 0% WPI for umbilical hernia. 3% WPI for haemorrhoids
Conrad, Peter Surgeon medical report September 11, 2018, (page 93) ulcer formation at the ankle region (right side). Examination: Bilateral long saphenous varicose veins post traumatic phlebitic left lower leg 2.5 cm increased in diameter ([sic] circumference). Assessment 20% WPI for class 2 impairment of left lower extremity (obvious error noted LEI 20% should be 8% WPI)
Vickers, Christopher Gastroenterologist medical report June 7, 2019 (page 98) DVT left thigh formed into pulmonary embolisms (I found no evidence of pulmonary emboli, which the Worker told me has resolved). Recurrent DVT 2017. Examination weight 110.4 kg. Left thigh swollen and woody to the feel on the inner aspect with superficial varicose veins (left > right). Chronic straining has led to pronounced haemorrhoids and anal bleeding. Diagnosis: Constipation, spastic colon, haemorrhoids requiring formal haemorrhoidectomy in the future assessment: 1% WPI for colonic or rectal disease for constipation producing bulging haemorrhoids
Grant, Simon consultant physician medical report May 17, 2007 (page 543)
Ho, Vincent Gastroenterologist medical report July 3, 2013 (page 578)
Haematology registrar September 11, 2017 (page 627)
Slezak, Peter consultant physician medical report December 1, 2017 (page 629)
Farmer, Eric vascular Surgeon medical report May 14, 2018, November 27, 2017 (page 699, 703)
Schultz, Edward Surgeon MAC May 26, (page 712) 8% WPI for left lower extremity varicose veins
Tomlinson, Peter vascular Surgeon medical report May 14, 2009 (page 725) 28% WPI
This Worker does not qualify for a Class 4 impairment
Ackroyd, Nigel Vascular Surgeon medical report November 21, 2018 page 895) 20% WPI with half deduction for previous DVT
I agree with this 1/2 deduction
Sethi, S Gastroenterologist medical reports December 31, 2018 (page 950) Assessment: 0% WPI for colonic disease.
July 29, 2020 (page 981) 0% WPI confirmed

d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.
11.DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
A previous left DVT in 2006 and postphlebitic syndrome has been documented on May 29, 2006 by Vascular Surgeon Dr Eric Farmer for which one half is deducted. I am satisifed that that that condition caused residual venous obstruction and destruction of venous valves, leading to increased venous pressures in the superficial venous circulation (varicosed veins), which continue significantly to contribute to the worker’s conditionand his assessed impairment. On the available evidence, I assess that contribution at one half.

The Panel adopts the reasoning and assessment of Medical Assessor Dr Garvey.
The Medical Assessment Certificate of Dr Crane dated 4 November 2020 is set aside and replaced with the attached Medical Assessment Certificate.

PERSONAL INJURY COMMISSION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Crane with respect to the assessment of whole person impairment and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Left lower extremity peripheral vascular	27 March 2007	Chapter 15, Clause 15.7, page 77	Chapter 4, Table 4-5, page 76	10%	½	5%
Constipation	27 March 2007	Chapter 16.9, page 78	Not applicable	0%	0	0%
Scarring	27 March 2007	Chapter 14, pages 73-76,, Clauses 14.6-14.8 and TEMSKI Table, Page 74	Not applicable	0%	0	0%
Haemorrhoids	27 March 2007	Chapter 16, page 78, para 16.1	Chapter 6, page 131,Table 6-5	2%	0	2%
Total % WPI (the Combined Table values of all sub-totals)					7%

R J Perrignon
Member
Dr John Garvey

Medical Assessor

Dr Cyril Wong

Medical Assessor

19 July 2021

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Allen v Dux Manufacturing Pty Limited [2021] NSWPICMP 126

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