Allen v Dux Manufacturing Pty Ltd
[2023] NSWPICMP 75
•7 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Allen v Dux Manufacturing Pty Ltd [2023] NSWPICMP 75 |
| APPELLANT: | Louis Allen |
| RESPONDENT: | Dux Manufacturing Pty Ltd |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Paul Curtin |
| MEDICAL ASSESSOR: | Michael Long |
| DATE OF DECISION: | 7 March 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Rehearing following Supreme Court remittal; appeal from 4% whole person impairment (WPI) assessment for hernia and left leg thrombosis; whether adequate reasons given; whether incorrect criteria applied as to classification; Held – Medical Assessor failed to adequately explain his reasons; appellant re-examined; Medical Assessment Certificate revoked and fresh certificate for 5% WPI issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 February 2022 Harrison AsJ in Louis Allen v Dux Manufacturing Pty Ltd [2022] NSWSC 158 quashed the decision of an Appeal Panel dated 19 July 2021 and the matter has been remitted to the present Appeal Panel. We are accordingly required to consider the same case de novo.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
Relevant factual background
The appellant worker, Mr Allen, appeals from the Medical Assessment Certificate of Approved Medical Specialist (AMS) 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.
The AMS assessed a 4% WPI (4% left lower extremity, 0% digestive system, and 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 AMS 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 Long, whose report appears below.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Medical Assessor Long of the Appeal Panel conducted an examination of the worker on 25 January 2023 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant submitted that the AMS erred by applying incorrect criteria in assessing the left lower extremity and his application of Table 17-38 of AMA5. It was further alleged that the AMS made an error of fact.
The MAC
The AMS 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 AMS that “he noticed varicose veins appeared in his left lower extremity within a few weeks of the diagnosis of his deep venous thrombosis”.
The AMS 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’, the AMS 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 extremities.”
With respect to the activities of daily leaving, the AMS 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 AMS 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 left sided 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% WPI (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 AMS 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.
SUBMISSIONS
The appellant
The appellant’s submissions may be summarised as follows:
(a) in respect of the left lower extremity, the AMS’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 AMS 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 AMS 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, and
(d) the AMS’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
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 AMS 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 AMS 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. The 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, and
(e) with respect to rectal bleeding, ‘several years ago’ is a common phrase meaning an approximate date in the past. The AMS 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.
FINDINGS AND REASONS
Assessment of left lower extremity
Section 322 of the 1998 Act provides that WPI is to be assessed in accordance with the Guides. Chapter 3 of the Guides provides that Chapter 17 of AMA 5 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 AMS 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 AMS 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 AMS does not record having made enquiries 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 AMS assessed a 0% WPI (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 AMS 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 AMS 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. The Panel determined that Mr Allen be re-examined by Medical Assessor Michael Long of the panel. His report follows:
“Medical Assessor: | T Michael Long | |
Specialty: | General Surgery | |
· Date of examination: 20 January 2023 in Sydney
· Date of birth and age at examination: Age: 56 years
· Hand dominance: Right handed
· Details of who attended the examination: The worker attended alone,
although his wife came in to help him with his stockings
· Date of injury: 27 March 2007
· Employer and occupation: DUX Manufacturing Pty Ltd
· Occupation: Machine Operator
4. HISTORY RELATING TO THE INJURY
Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
· 27 March 2007 accepted date of work injury causing umbilical hernia.
· 23 April 2007, Operation repair of work related umbilical hernia (and epigastric hernia) performed by Dr P Wikramanayake. Surgery uncomplicated.
· Postoperative gross shortness of breath, which was unusual for him. Received physiotherapy, which included “jogging on the spot”. Remained in hospital for about 3-4 days. District nurse attended dressings at home.
· Was reviewed by Dr Wikramanayake on 3 May 2007. The worker indicated that he had pain in the left leg, but no further action was undertaken by Dr Wikramanayake.
· Subsequently, the worker attended his General Practitioner, Dr Lambert, who ordered imaging study of the veins in the left leg.
· 7 May 2007, left leg venous Doppler, reported by Dr B Bako.
“Clinical History: Post umbilical hernia surgery with pain and swelling on the medial side of the left thigh is noted.
There is occlusive thrombus in the proximal long saphenous vein. There is thrombus in the associated varicosities in the proximal medial thigh. The thrombus extends into the common femoral and iliac veins with multiple dilated superficial veins in the left groin. The superficial femoral vein demonstrates normal flow and compression…”
My emphasis to the findings of a superficial thrombosis (associated with extensive, pre existing varices, “proximal medial left thigh” associated with the long saphenous vein) extending into the deep veins but not occluding those deep veins.
· Mr Allen was aware of a painful lump high in the anteromedial thigh/groin. Anticoagulation was commenced.
· On 13 May 2007, the treating surgeon Dr Wikramanayake, who on writing to the general practitioner indicated:
“He was limping as he walked in today and when I asked him about this he informed me he had a clot in his vein! He had varicose veins and had developed a clot in the left long saphenous vein in the postoperative period. It appears that this subsequently extended into his femoral and iliac veins… I am confident at the time of the operation he had all the usual procedures to reduce risk of deep venous thrombosis associated with this kind of operation and despite this he has developed a deep venous thrombosis. Although he had a previous DVT many years ago, this was associated with a fracture [right femur – my brackets] and with his last operation, he would have been regarded as relatively low risk for developing a deep venous thrombosis. He did have subcutaneous Clexane prior to the operation, calf compressors during the procedure and even had Clexane after the operation, with early mobilisation…”
He was admitted to inpatients Bowral Hospital in order to stabilise his anticoagulant/warfarin levels.
· 12 June 2007, attempted to return to restricted duties, but owing to pain with standing mainly in the varicose veins and proximal anteromedial thigh/left groin, he was unable to continue.
· In about September 2007, in spite of continuing pain, particularly proximal medial left thigh, he was able to return to graduated pre-injury duties, increasing to full time.
· Associated with the thrombosis, particularly in the superficial vein, proximal anteromedial left groin, the inability to work and the difficulties with anticoagulation using warfarin, he became depressed and was referred to a psychologist. Zoloft (antidepressant) was prescribed.
· Because of pain, particularly in the proximal anteromedial left groin, Mr Allen indicated he required strong analgesics, which included Mersyndol Forte, which was later changed to Panadeine Forte. Mr Allen emphasised that these drugs precipitated constipation and he began to pass hard stools every 2-3 days associated with straining. Bright bleeding occurred at bowel action and was noted on the paper and about the toilet bowl.
· Noting “previous prescriptions”, which extend from 14 January 2008 forward, it is noted in this record that Mersyndol Forte was not prescribed until 11 February 2010 and this continued regularly until 12 February 2013 and OxyContin was prescribed and thereafter on 1 March 2013, Norspan patch together with Panadeine Forte. Numerous prescriptions for Panadeine Forte extended particularly throughout 2013/2014 and subsequent. Occasional Mersyndol Forte tablets were prescribed.
· Provided general practitioner records extends from 14 January 2008 until 12 February 2020 and general practitioner records prior to 14 January 2008 were not provided. Noting the pain and tenderness associated with an extensive superficial vein thrombosis it is accepted that strong analgesics would have been necessary as stated by Mr Allen.
· He was troubled by nose bleeds, which occasionally required attendance at Emergency. These probably caused an iron deficient anaemia.
· On 4 September 2008, Dr Lambert records:
“Some discomfort left groin. Distended veins. No redness. Mention now that he is standing long hours, he is having some discomfort left thigh region. Because of the pain he did not go to work.”
These symptoms were recorded in subsequent appointments, but no analgesics appear to have been prescribed until 2 December 2008, when Panadeine Forte was prescribed.
· The entry by Dr Louka on 2 December 2008 indicated: “Pain to the right lower back bending to get something then experiencing back pain when stood up. Tender over right lower lumbar area and stiffness. Likely facet joint injury.”
· January 2009, warfarin was discontinued. He was continued on Cartia – low dose aspirin, daily.
· 22 January 2009, Dr Louka records:
“Left thigh pain today, could not go to work…”
· 25 February 2009, Dr Lambert records:
“Tried doing overtime, feels his leg starts aching after six hours of standing, sometimes swells as well. Will be unable to do any overtime.” Mr Allen indicated this aching and swelling was mainly related to the collection of veins, proximal left leg.
· 5 March 2009, Dr Lambert records:
“Very stressed, anxious, almost teary. Said that he has been harassed at work by his immediate boss. Has been going on for about six months but got worse last Tuesday…”
· Subsequent appointments were related to his anxiety and depression.
· 25 May 2009, Dr Lambert records:
“… continues to have intermittent puffiness left groin with discomfort also right lower leg around ankle region as skin discolouration varicose veins.”
· 25 June 2009, Dr Lambert in a referral letter to Dr Brotodhardjo indicates regarding Mr Allen:
“… who has an uncomfortable feeling in the rectal region. Sometimes he feels a lump which comes out when he is standing for long. He has history of haemorrhoids before (this was not defined by Dr Lambert as haemorrhoids used loosely refers to rectal/anal, bleeding, lumps or pain whereas medically the term refers to various grades of internal haemorrhoids). He also has varicose veins in both legs, more the left leg and left upper thigh region. He has recently stopped taking warfarin, which he was taking left leg DVT…”
· At this time, prescriptions of strong analgesic, Panadeine Forte and Mersyndol Forte were related to symptoms associated with veins proximal left thigh.
· Ongoing consultations dealt with his harassment, anxiety and depression, as well as persistent symptoms associated with the dilated superficial veins proximal anteromedial left thigh.
· 1 December 2010, Mersyndol Forte was prescribed because of recurrent left-sided lumbar pain. Dr Lambert has recorded:
“… has history of lower back pain since 25 years. Right leg slight short post-fracture right femur 25 years ago…”
· Subsequent consultations were concerned mainly with discomfort/pain proximal left thigh.
· 6 February 2013, Dr Lambert has recorded:
“… follow up that pain/has been on worker’s compensation (for back symptoms-my addition) since 14 February 2012 when he was lifting a heavy cylinder…”
· MRI scan was performed and subsequent prescriptions included Panadeine Forte, Endone, OxyContin, Norspan patch. Symptoms in his back and leg (sciatica), gradually improved throughout 2013, but there were ongoing prescriptions for Panadeine Forte without clear indication in general practitioner notes as to whether this was being prescribed for his back symptoms or those in his left leg – proximal left thigh. His emotional symptoms were aggravated by the prospect of separation from his wife.
· 27 February 2014, Dr Lambert has recorded:
“… phone call wants a script for Panadeine Forte sometimes takes for back pain / not regular back much better…”
· 16 June 2016, Dr Lambert has recorded:
“… constipation two days / reported he takes Panadeine Forte for lower back pain intermittently, has seen gastroenterologist in the past, sometimes has fresh PR bleed when passes stools…”
· 12 May 2017, colonoscopy because of rectal bleeding. Chronic constipation. Performed by Dr Sam Al-Sohally:
“Findings:
· The perianal and digital rectal examination were normal.
· The terminal ileum appeared normal.
· A diffuse area of mild melanosis was found in the entire colon. Internal haemorrhoids were found and the haemorrhoids were small, three bands were successfully placed” [my underlining].
Following colonoscopy and banding of haemorrhoids there was greatly diminished rectal bleeding.
· A thrombophilic screen had revealed no abnormality. He was advised to wear full length stockings at work, not only were these expensive, they were uncomfortable, particularly in the region of the superficial varicosities proximal anteromedial left leg and the latter were not controlled by the stockings. Subsequently, he used below knee, graduated pressure stockings, which he obtains from the United States. Stockings require replacement 2-3 monthly.
· A haematologist placed him on long term anticoagulation – Apixaban.
· Increasingly, he had pain proximal anteromedial left thigh with periods off work. Panadeine Forte for relief. These symptoms continue.
· Present treatment:
· Palexia, an opioid, up to 50 mg three times a day for back and left leg pain. It has replaced Panadeine Forte.
· Loxalate for depression and anxiety, increased to 30 mg in the morning. This has been beneficial.
· Calistat 10 mg daily for weight reduction.
· Apixaban 5 mg twice daily, anticoagulant.
· Heat packs to his back for pain relief, now causing staining of the skin (chloasma).
· Physiotherapy and hydrotherapy have been undertaken, without benefit.
· Attends general practitioner regularly for repeat of prescriptions.
· Has received three nerve block injections into his back, which were only partially effective. Further injection is planned in February 2023.
· Esomeprazole 40 mg daily. For retrosternal/epigastric indigestion.
· Colonoscopy performed in November 2022. The report was not available, but Mr Allen indicated some polyps were removed and the haemorrhoids again were banded.
Present symptoms:
· Pain and swelling associated with the clump of superficial varicose veins proximal anteromedial left thigh/groin. Aching sensation in this region, which is continuous and can be 8/10 in severity with prolonged standing. The veins are particularly tender causing him great discomfort as he walks, as this region rubs on his clothing and opposite thigh. Occasionally there is some discolouring in this region, but not frank bruising. At times, the veins have been hard, but at present are reasonably soft except they are tense and more prominent and painful when standing.
· Without his stocking, he develops swelling and a bursting discomfort in the right and left lower legs.
· The symptoms associated with the superficial varicose veins proximal anteromedial left thigh are relieved greatly by lying down and elevating his legs.
· The bursting discomfort calves is prevented by wearing below knee stockings and or elevation of his legs. There is no claudication-a pain produced by exercise relieved by stopping that exercise and usually not relieved by elevation of the limb and nearly always is due to arterial disease.
· Back Pain: Continuous lumbar, usually 8-9/10 in severity. This pain is aggravated by movement, lifting weights and coughing and sneezing. The lumbar back pain radiates into the posterior aspect of the left leg and occasionally extends as a “jolt” to the left foot. Occasionally, there is similar less severe pain affecting the right leg. This sciatic type pain in the left leg is nearly always present in association with the lumbar back pain.
· Approximately 3-4 years ago he began to develop indigestion with solid foods tending to catch mid-retrosternally. There was no difficulty swallowing liquids. Oesophagogastrostomy was performed revealing, Mr Allen stated, “… an ulcer of the oesophagus…”. He was commenced on esomeprazole 40 mg twice daily, although this dose has now been reduced. There was no history of indigestion of this type before the onset of these symptoms.
· Sleep: Poor, mainly because of anxiety. Temaze 10 mg allows him 3-4 hours of sleep.
· Bowels: Some ongoing constipation controlled with various laxatives.
· Urinary: No abnormal symptoms.
· Emotional Factors: Anxiety and depression continue, but with better control. He attempted suicide with an overdose in 2013, but is no longer suicidal. He had attended a psychologist and is in the process of finding another.
Details of any previous or subsequent accidents, injuries or condition:
· 1985, sustained fracture to the shaft of the right femur in a motor vehicle accident, treated with traction for up to 8 weeks. Developed right deep vein thrombosis affecting the right calf. Subsequently developed varicose veins and pigmentation about the medial ankle and ulceration in that region. The ulcer recurs from time to time.
· 14 February 2012, sustained a back injury at work, which aggravated pre-existing back pain (GP consultation 14 January 2008).
· 25 February 2013, MRI scan of the lumbosacral spine reported by Dr M Chew:
‘Conclusion:
1.No significant interval change with posterocentral disc protrusion of L4/5 remaining with effacement of lateral recesses and impingement of the L5 nerve roots in the lateral recesses. Mild central canal stenosis. Moderate grade central canal stenosis.
2.Small posterocentral disc protrusion at L3/4 level with no visualised nerve root impingement…’
This injury was associated with further alleged harassment at work.
· 24 July 2019, injured left knee, ribs and back in a fall at work. Treated conservatively with Panadeine Forte. No imaging studies were performed.
· Sustained an injury to his left shoulder whilst lifting at work on 10 January 2019. Mr Allen indicated he had been keen to continue work (because of a mortgage and having five children), ultrasound and MRI scan were undertaken. He indicated he had “bursitis and subsequent frozen shoulder”.
· General health:
· Tobacco: Nil now but previous smoker.
· Alcohol: Nil
· Asthma when young and occasionally requires Ventolin and a preventer, but these are not taken regularly.
· Allergic to penicillin.
· Serum lipids found to be raised in 2009.
· Emotional: Anxiety and depression commenced following repair of the umbilical hernia with the ongoing symptoms and disability in the left leg; time off work and difficulties with warfarin stabilisation. The situation was further compounded by some marital problems, and further by bullying at work. Antidepressants were prescribed and he attended a ‘counsellor’.
· Other Operations:
· 2000, appendicectomy.
· In 2006, Mr Allen was referred to Dr E Farmer because of varicose veins. The following investigations were undertaken at the Liverpool Vascular Laboratory on 29 May 2006. Left venous duplex scan – left leg, reported by Dr Rick Farmer. The report indicated:
‘The distal common femoral and superficial femoral veins do not fully compress… shows some segments of old recanalised thrombus. The popliteal and deep veins all fully compress and have normal flow indicating patency. There is no evidence of a Baker’s cyst or haematoma.
The long saphenous vein is incompetent from the proximal-mid upper leg saphenofemoral junction. This is associated with large incompetent tributaries in the proximal medial upper leg.
The medial lower leg has an incompetent perforator at 20 cm up from the ??
One of the posterior tibial peroneal and superficial femoral veins are incompetent. This is most likely due to postphlebitic phlebitis syndrome. The short saphenous and remaining deep veins are competent.
Summary: No evidence of recent DVT. Old recanalised thrombus superficial femoral and common femoral veins at saphenofemoral junction (SFJ) incompetent proximal upper leg long saphenous vein and tributaries. Incompetent medial lower leg perforator, incompetent SFV, PTV and PER…’
Comment: This report indicates that the varicose veins proximal anteromedial left thigh were present in May 2006 prior to them becoming thrombosed up to a week following repair of the umbilical hernia on 27 April 2007. There was evidence of previous deep venous thrombosis at this time.-2006.
Work history including previous work history if relevant:
· Mr Allen was born in the United Kingdom and migrated with his family to Australia in 1973. Mr Allen left school at the age of 16 years after completing Year 10. On leaving school, he worked in various factories and labouring. He commenced employment with DUX Manufacturing Pty Ltd in 2002 and was employed full time as a machine operator.
· Following repair of the umbilical hernia and subsequent thrombosis of the left leg, he was off work for approximately four weeks before attempting to return to light duties. He again was off work until about September 2007, when he recommenced graduated increased hours to full time with his preoperative duties. Subsequently, he had periods off work associated with his lumbar back injury; pain in the clump of varicose veins, proximal medial right thigh and later following the fall at work when he injured his left knee, ribs and back on 24 July 2019. He ceased work on 24 July 2019 and has not returned to work.
Significant Family and Personal History:
· Mr Allen and his wife have been together for 30 years. They have five adult children aged between 22 and 34 years and eight grandchildren. His father had lived with them and helped considerably with activities about the house, but he died in 2022. Mr Allen’s mother died when he was 15 years of age. The couple own their own home and are now coping with a ‘small mortgage’. It is a one level house. Because of his symptoms in the left leg and back, Mr Allen is unable to mow the lawn and a son, a carpenter, performs the mowing and other tasks.
Other Activities:
· Walking: He often uses the support of a walking stick, which he holds in his right hand. Walking is limited by pain associated with the clump of varicose veins proximal anteromedial left thigh and because this protrusion rubs on his clothing and the right leg. Running is impossible.
· Standing: Is limited to 10 minutes, mainly because of pain with the varicose veins proximal left thigh. which become tense and project whenever he stands. Prolonged standing also aggravates his back pain.
· Bending: Difficult because of back pain. This requires his wife or others to provide assistance when putting on and taking off his elastic stockings.
· Kneeling: Impossible because of symptoms in his back and left leg.
· Squatting: Similarly impossible.
· Sitting: Limited because of back pain and pain in the proximal left leg.
· Lifting: He has a weight restriction of 5-10 kg and notes that any lifting aggravates his back pain.
· Stairs: He can negotiate slowly with support if necessary.
· Slopes/Uneven Ground: Difficult to negotiate.
· Driving: Until now he has been driving a low-seated Ford Falcon locally. He is in the process of changing this vehicle for an automatic, all-wheel drive vehicle with higher seating, which will be easier for him to enter and leave.
· In the home, he attempts to help, but relies on his wife and children when available to undertake these activities. When showering, he usually has his wife wash his back and legs.
· He attempts to hang out clothes and undertake some washing.
· Shopping: He shops, but only for small amounts and usually with someone to assist him.
· Gardening: He is unable to perform any gardening.
· Sport: This is now impossible. He played a good deal of sport when he was young.
· Recreational Restrictions: Indicates he has difficulty concentrating. He used to have a hobby of collecting pocket knives and torches, but has not undertaken this activity for several years.
5. FINDINGS ON PHYSICAL EXAMINATION
Mr Allen presented ahead of time for his consultation. The consultation continued for 90 minutes. He was very pleasant and co-operative and provided a clear history, which was consistent. He walked with a left antalgic limp and was supported by a shillelagh walking stick, which he held in his right hand. His wife remained outside, but came in and willingly assisted with his stockings.
Weight: 104 kg
Height: 181 cm
Because of back pain, Mr Allen had some difficulty in moving onto the examination couch.
Cervical Spine:
No restriction of movement. Normal.
Thoracic Spine:
No tenderness.
No restriction of extension, flexion or rotation right and left.
Lumbar Spine:
Marked tenderness in the low lumbar spine. Flexion was 60% of normal.
Extension was 20% of normal.
Angulation right and left was each restricted to about 60% of normal.
Some paravertebral muscular guarding.
There was no specific differential weakness in the lower extremities. The following reflexes were noted:
Reflexes
Right
Left
Adductors
+
+
Knee Jerk
++
++
Ankle Jerk
+
?
Sensation:
No abnormal dermatomal or other sensory loss.
Straight leg raising was 30o right and left causing pain in the back and posterior thighs.
Upper Extremities:
No specific abnormality.
Movement of the left shoulder was not restricted.
Elbows/Wrists/Hands/Fingers:
Normal.
Abdomen:
Vertical 10 cm, uncomplicated operation wound, midline passing to the left of the umbilicus which was preserved. No evidence of further associated herniation. Some dilated veins inferior to the umbilicus. No evidence of hepatosplenomegaly or chronic liver disease.
Pale oblique 15 cm appendicectomy scar right lower abdomen.
Lower Extremities:
Left thigh proximal anteromedial spreading into the left groin was a clump of palpable thick-walled dilated varicose vein, approximately 10 x 15 cm on standing. This swelling projected, was tender to touch and would rub on the adjacent right thigh where similar, less pronounced changes were noted. This swelling of superficial veins became tense on standing, but was lax when lying, particularly when the left leg was elevated. A cough impulse was not identified in this clump of veins. There was no induration suggesting recent thrombosis.
See attached photograph upper medial left thigh with position of swollen superficial veins outlined taken on 20 January 2023. The distal left leg shows some superficial venous flares. The limited view right lower leg show some varicose veins pigmentation and scarring.
Distal in the leg there were no obvious visual varicose veins, except for small veins about the foot. However, the long saphenous vein could be palpated throughout its course and was noted to be thick-walled with a cough impulse at the knee. Filling of the veins with differential tourniquet was found to occur along the long saphenous system and also below the knee from perforators, associated with a palpable short saphenous vein.
When the compression stockings were removed, there was no oedema below the knee or on the left or right foot. In the left leg there was no skin pigmentation or loss of subcutaneous tissue, suggestive of a postphlebitic syndrome.
Right Leg:
More prominent varicose veins along the course of the long saphenous vein which was prominent. Marked pigmentation about the medial side of the right ankle with scarring from a healed medial ulcer. These changes, right lower leg, indicate local venous hypertension/post phlebitic syndrome.
In spite of the lack of oedema in the right or left lower legs, there was a difference of calf measurement 10 cm distal to the tibial tuberosity. The left calf was 3 cm greater than the right calf, whereas the right and left thighs were the same size measured 10 cm proximal to the superior patella.
The reason for the greater size of the left calf in the absence of oedema was not apparent.
Arterial Pulses:
Prominent dorsalis pedis and posterior tibial pulses were noted in the right and left feet and ankles and peripheral circulation of the feet appeared normal.
Hips/Knees/Ankles/Feet:
Otherwise normal.
No specific abnormality noted, in particular in the left knee.
Anal Examination:
Skin tag left lateral position.
Straining did not reveal any internal haemorrhoid prolapse.
Rectal examination was uncomfortable, but did not reveal any abnormality. There was no evidence of an anal fissure.
The rectum was empty.
6. DETAILS AND DATES OF SPECIAL INVESTIGATIONS
· 29 May 2006, left venous duplex scan of the left leg, reported by Dr Rick Farmer.
The report , as above, indicated:
‘The distal common femoral and superficial femoral veins do not fully compress… shows some segments of old recanalised thrombus. The popliteal and deep veins all fully compress and have normal flow indicating patency. There is no evidence of a Baker’s cyst or haematoma.
The long saphenous vein is incompetent from the proximal-mid upper leg saphenofemoral junction. This is associated with large incompetent tributaries in the proximal medial upper leg.
The medial lower leg has an incompetent perforator at 20 cm up from the ??
One of the posterior tibial peroneal and superficial femoral veins are incompetent. This is most likely due to postphlebitic phlebitis syndrome. The short saphenous and remaining deep veins are competent.
Summary: No evidence of recent DVT. Old recanalised thrombus superficial femoral and common femoral veins at saphenofemoral junction (SFJ) incompetent proximal upper leg long saphenous vein and tributaries. Incompetent medial lower leg perforator, incompetent SFV, PTV and PER’
Comment: This investigation indicates that a degree of deep venous thrombosis together with the extensive proximal superficial varicose veins proximal left thigh had existed prior to repair of the work related umbilical hernia on 23 April 2007 and the extensive proximal thigh superficial venous thrombosis which developed approximately one week following that procedure.
· 7 May 2007, left leg venous Doppler, reported by Dr B Bako:
‘Clinical History: Post-umbilical hernia surgery with pain and swelling on the medial side of the left thigh is noted. There is occlusive thrombus in the proximal long saphenous vein. There is thrombus in the associated varicosities in the proximal medial thigh. The thrombus extends into the common femoral and iliac veins with multiple dilated superficial veins in the left groin. The superficial femoral vein demonstrates normal flow and compression…
Summary: Appearances are in keeping with superficial thrombosis extending into the deep veins…’
· 7 May 2007, CT scan pulmonary angiogram, reported by Dr B Bako:
‘No pulmonary emboli is seen…’
The report also indicated:
‘There are extensive venous varices inferior to the umbilicus. Low density material is noted in the left common femoral vein and in the left external iliac vein. No definite filling defect could be appreciated in the left common iliac vein…’
· 21 January 2008, venous duplex scan of left leg, reported by Dr G Purss:
‘Non-occlusive thrombus persists in the common femoral vein extending into the proximal superficial femoral vein. The iliac veins were poorly visualised. The distal superficial femoral vein, popliteal vein and calf veins are free of thrombus.’
· 15 September 2008, left lower limb DVT duplex study, reported by Dr P Tew:
‘Findings: No indication of acute intraluminal thrombus demonstrated of the left lower limb deep veins when imaged from the common femoral vein to the calf tributaries. Note is made of irregular echogenic areas within the wall of the patent common femoral vein and at the level of the sapheno-femoral junction indicative of chronic changes due to previous thrombus with current suspected post-thrombotic fibrous scars +/- calcification. There is clearly defined compressible lumen in this venous segment…’
· 2 December 2009, Doppler venous ultrasound examination of both lower limbs, reported by Dr A Sacks:
‘Conclusion: No evidence of deep venous thrombosis in either lower limb. Prominent varicose vein noted in the left arising from the long saphenous vein. No evidence of superficial thrombophlebitis…’
· 31 August 2017, bilateral lower limb venous Doppler study, reported by Dr A Mayat, with regard to the left leg, the report indicated:
‘There is thrombus identified in the long saphenous (superficial varicose-my addition) vein 18 cm long extending up to the saphenofemoral junction. There is occlusive clot identified in the one of the posterior tibial vein branches, one 3 cm long extending into the tibioperoneal trunk…’
· 11 September 2017, duplex Doppler both legs, reported by Dr S Kobilaki:
‘Comment: The right leg short saphenous vein thrombus is unchanged compared to the previous study. The thrombus in the left posterior tibial vein, long saphenous vein and saphenofemoral junction extending into the common femoral is non-occlusive and is consistent with resolving left deep and superficial venous thrombosis. There is no extension up to the common femoral vein to the iliac vein on the left…’
Within the report, the radiologist notes with regard to the left leg:
‘There is extensive thrombus in the left long saphenous vein extending to the saphenofemoral junction and there is partially compression of the left common femoral vein indicating thrombus extension from the saphenous vein into the common femoral vein. This thrombus is incomplete…’
· 14 October 2017, bilateral lower leg Doppler venous ultrasound assessment, reported by Dr S Pillay:
‘Left leg: Extensive thrombosis is again noted within the saphenous vein extending over a length of 10 cm with extension into the saphenofemoral junction and femoral vein over a length of 13 cm below the groin. Further extension into the common femoral vein over a length of 2.5 cm is demonstrated. No extension into the left iliac vein identified. The thrombus appears to be partially occlusive…’
7. SUMMARY
· summary of injuries and diagnoses:
1. Thrombosis left leg. Thrombosis in pre-existing large varicosity associated with the left long saphenous vein proximal anteromedial left thigh/groin with non occlusive extension into the common femoral and iliac veins, The thrombosis developed on or about 3 May 2007 following operation of 23 April 2007 to repair a work related umbilical and epigastric hernia.
Although the worker was unaware of the large veins proximal left thigh, they were demonstrated in a left leg venous Doppler scan of 29 May 2006. Further, that investigation revealed evidence of previous deep venous thrombosis (DVT) in the left common femoral and superficial femoral veins. The study also demonstrated incompetence of the posterior tibial, peroneal and superficial femoral veins, although further thrombosis in these veins was not noted in a left leg venous Doppler of 7 May 2007.
In spite of surgery on 23 April 2007 being undertaken with accepted precautions for DVT and postoperative mobilisation, where his recovery from the operation was complicated by shortness of breath; he was mobilised with the assistance of a physiotherapist – including on a treadmill. The subsequent thrombosis principally in the superficial varicose vein proximal left thigh/groin, up to 10 days postoperatively, has been accepted under Workers’ Compensation as secondary to repair of the work related umbilical hernia on 23 April 2009.
Subsequently, he was treated with appropriate anticoagulation. Clexane replaced by ongoing warfarin and elastic stockings. Above knee stockings proved ineffective and were replaced by effective below knee graduated pressure stockings. The warfarin was discontinued in 2009 and mini-dose aspirin daily continued.
In 2017 there was a recurrence of the extensive thrombosis in the left long saphenous vein and associated varicose veins. There was imaging study evidence of thrombosis of deep veins in the left calf and a non occlusive extension of the thrombus into the left common femoral vein.
Subsequently, in about 2017, long term anticoagulation with Apixaban was commenced and this continues.
Examination of the lower extremities confirms the presence of firm, but compressable tender, superficial varicose veins, which project from the proximal medial lateral aspect left thigh and groin and extend over an area of approximately 10 x 12 cm. These veins distend with increased tenderness when he is standing and or straining. These veins collapse when he is lying. There was no objective evidence of continuing superficial thrombophlebitis.
Below knee right and left, effective graduated pressure stockings were worn and there was no distal oedema beyond the stockings, and no oedema of the right or left lower legs when the stockings were removed. There were no skin changes or other changes to indicate postphlebitic inflammation of the left lower leg, although in contrast, these changes were present with evidence of ulceration medial aspect right lower leg.
In the absence of oedema, I cannot explain the 3 cm greater in circumference of the left calf when compared with the right calf. There was no oedema either proximal or distal to the stockings.
2. Constipation, haemorrhoids and bright rectal bleeding. Because of pain associated with the varicosities superficial veins proximal left thigh, he required strong analgesic, including Mersyndol Forte and Panadeine Forte. This led to constipation with straining at stool; projection of anal lumps (which he called haemorrhoids); bright rectal bleeding noted on the paper and in the pan. General practitioner records are incomplete in verifying that strong analgesics were required because of the pain in the left proximal thigh, but it is considered reasonable to accept that they were necessary because of the known pain associated with the superficial thrombosis left proximal thigh (or anywhere). It was noted he was referred to a specialist because of haemorrhoids in 2009.
In 2012, aggravation of previous back symptoms required more frequent prescriptions for Panadeine Forte, which was taken for both his lumbar back pain with radicular symptoms in the left lower extremity, as well as continuing pain and tenderness associated with the veins in the proximal left thigh.
Analgesic required for thrombosis of the left leg, which is ongoing (even though the thrombosis of the superficial veins left upper thigh-has resolved) and because of pain in the lumbar back with radicular symptoms left leg have resulted in constipation. He strains to pass constipated stool secondary in particular to taking Mersyndol Forte/Panadeine Forte for both the left leg and lumbar back ongoing symptoms. More recently these drugs have been replaced by Palexia which also induces constipation.
Internal haemorrhoids were diagnosed at colonoscopy on 12 May 2017 and again, November 2022. The haemorrhoids in 2017 were diagnosed as “small”.
Following the further banding in November 2022, there has been minimal rectal bleeding.
Examination of the anal region revealed only a prominent left lateral skin tag. There was no evidence of projecting internal haemorrhoids on straining and rectal examination was otherwise normal.
It is probable that any rectal bleeding was accentuated by the fact of him taking anticoagulants together with constipating drugs.
3. Lumbar Back Pain with radicular symptoms posterior aspect left leg. These symptoms continue and are considered an aggravation of a work injury in 2012, which is a probable aggravation of previous back symptoms prior to that date. There was probably further aggravation of the back symptoms in a fall sustained at work on 24 July 2019. There was also further aggravation of his back symptoms at work on 14 February 2012.
4. Heartburn. Present over the past 3-4 years with probable oesophagitis diagnosed at endoscopy (but result not available), controlled by esomeprazole. Solids had tended to catch mid-posterior retro sternal, but the worker was not advised about any oesophageal stricture. This symptom has now resolved with the taking of oesomeprazole.
5. Anxiety/depression associated with problems with the left leg, warfarin stabilisation, frequent reviews and investigations. Harassment at work related in particular to his disability. Problems with his marriage. Overall, these symptoms are well controlled with antidepressants. Further psychological sessions are being arranged.
The worker’s main ongoing problem and disability is related to pain in the left leg. This pain has three components:
i. The most severe pain is associated with the constant pain and tenderness of the projecting mass of superficial varicose veins proximal anteromedial left thigh and groin. This pain is relieved by lying.
ii. Sciatic pain, n constant and often episodic, radiating down the posterior aspect of the left leg to the foot.
iii. ‘Bursting discomfort/pain’ right and left lower legs with prolonged standing when not wearing his below knee graduated compression stockings. When the stockings are removed with prolonged standing, he also notes swelling and congestion with discolouration “black and red”, accompanied by swelling of both right and left lower legs. This symptom is relieved by lying down and elevating his legs.
· consistency of presentation
Mr Allen was most co-operative and there were no inconsistencies throughout the presentation. He provided a clear history without embellishment.
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.
If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.f.
Pre existing varicose veins proximal anterolateral proximal left thigh and previous left leg deep venous thrombosis as demonstrated in Venous Doppler left leg 29 May 2006
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.g.
Additional constipation caused by back pain and aggravation of that pain by a work back injury 14 February 2012 and at other times, secondary to requirement of additional pain medication. Recurrent thrombosis, long saphenous vein and tributaries upper medial left thigh and some deep venous thrombosis left calf 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:
The assessment is made by the history provided by the worker; the present clinical findings; imaging studies and particularly the left leg venous duplex scan of 29 May 2006 prior to the work
injury of 27 March 2007 and subsequent events; the colonoscopy findings of 12 May 2017 and the probable finding of colonoscopy in November 2022, combined with the present anorectal clinical findings.
10.REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment
I have determined an impairment of 2% Whole Person Impairment left lower extremity.
1% Whole Person Impairment for the digestive system.
0% Whole Person Impairment for scarring under the TEMSKI criteria.
b. An explanation of my calculations.
My calculations are made with reference to NSW Workers’ Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition – 1 April 2016, with particular reference to: Ch.3 Lower extremity. P13-23. Rounding. P6. 1.26 Pre-existing P6,1.27, 1.28.
Ch.14. The skin P73-76. TEMPSKI P74
Ch. 16 Digestive. Page 79-80
Guides to the evaluation of Permanent Impairment, AMA 5th Edition:
Left Leg: The Guidelines on Page 22; 3.6, indicate that the impairment provided in AMA5, Page 76; Table 4-5 and also Page 554; Table 17-38, provide Lower Extremity Impairments which then has to be converted to Whole Person Impairment. These Tables indicate that Class 1 0%-9% left lower extremity impairment indicates ‘neither claudication nor pain at rest’.
Mr Allen has pain at rest, and when he is active, that is, he has ‘continuous pain’. However, the pain which is continuous and at rest in Mr Allen is situated in the extensive clump of varicose veins proximal anteromedial left thigh. Pain in Mr Allen’s calf is intermittent and occurs when his stocking is removed and he is erect. He does not have claudication, which is an intermittent pain usually occurring in the calf associated with walking and relieved by rest. (not elevation) It is usually due to arterial disease – not present in Mr Allen, and less commonly with gross venous obstruction; neurological reasons associated with spinal stenosis.
Because Mr Allen has continuous pain, he must be considered in the next category, that is, Class 2, 10%-39% left lower extremity impairment.
He has no other criteria, apart from continuous pain, for inclusion in Class 2. He has minimal symptoms relayed to deep venous thrombosis lower left leg. His pain is associated mainly with the projecting clump of pre existing superficial varicose veins proximal antero medial left leg
Impairment is determined in Class 2 as 10% left lower extremity impairment = 4% Whole Person Impairment. Who AMA5; Page 527; Table 17-3.
Constipation: WCC Guidelines, Chapter 16; 16.9; Page 70, indicates ‘constipation is a symptom, not a sign and is generally reversible. A WPI assessment of 0% applies to constipation.’ Impairment = 0% Whole Person Impairment.
Rectal bleeding and haemorrhoids determined by reference to AMA5, Page 128; Table 6-4, criteria for rating Permanent Impairment due to colonic and rectal disorders, are considered Class 1, 0%-9% impairment of the whole person ‘signs and symptoms of colonic or rectal disease infrequent and of brief duration…’
He has occasional ongoing bleeding in spite of ligation of (probably small) haemorrhoids.
Impairment determined as 1% Whole Person Impairment. Based on the present findings.
Scarring: Referring to the Guidelines P73-76. TEMPSKI P74, Page 73; 14.6, “a scar may be present and rated as 0% WPI. Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment…”
The abdominal surgical scar used to repair the worker’s umbilical and epigastric hernia is considered uncomplicated.
Impairment 0% Whole Person Impairment.
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
14 May 2009, Dr Peter Tomlinson, General Vascular Surgeon report determined an impairment of the left lower extremity of 28% Whole Person Impairment, determined as Class 3 40%-69% impairment of the lower extremity.
Comment: This impairment assessment is not justified on the criteria defined in AMA5, Page 584; Table 17-38. Mr Allen has none of the criteria for Class 3.
26 May 2010, Medical Assessment Certificate, Dr Edward M Schutz, indicated under ‘Present Symptoms’:
‘Left leg – discomfort due to the swelling in the left groin which he states aches and bothers him when walking…
Both legs – a tendency to swelling of the lower legs for which he wears below knee compression stockings…’
On examination of the left leg, Dr Schutz indicated:
‘In short, the abnormalities of the left leg were the mass of veins in the left upper thigh region up to the level of the left groin, and some swelling of the left lower leg…’
Dr Schutz diagnosed in the left leg:
· ‘Extensive deep venous thrombosis
· Followed by development of varicose veins in the left upper thigh adjacent to the saphenofemoral junction… swelling of the left lower leg…’
Evidently, Dr Schutz was unaware of the Doppler ultrasound report of 29 May 2006 prior to repair of the umbilical hernia on 23 April 2007 which had indicated previous extensive varicose veins in the thigh associated with the left long saphenous veins together with the evidence then of previous deep vein thrombosis. The thrombosed long saphenous vein left leg at the time of presentation following the surgery of 23 April 2007 did not develop because of any deep venous thrombosis at that time. Rather the reverse with thrombosis of the pre existing varicose vein leading to a non occlusive deep venous thrombosis.
Dr Schutz made no deduction to his impairment determination of 8% Whole Person Impairment. Initially Dr Schutz found because of “ Persisting oedema of a moderate degree incompletely controlled by elastic support..” . Class 2 Table 17-38, page 584 an impairment left Lower Extremity of 20%= 8% Whole Person Impairment.
Significantly Dr Schutz pointed out that the large knot of varicose veins upper medial left thigh causing significant impediment and ache does not have sufficient criteria to be included under Table 17-38
14 May 2018, Dr Eric Farmer, Vascular and Endovascular Surgeon, report, who indicated under Item 5:
‘The development of deep vein thrombosis in his left leg following the hernia repair was not obviously related to a thrombophilic predisposition but he had a deep vein thrombosis in the past following a fracture of the right leg and therefore is at risk of developing deep vein thrombosis after trauma which may be contact trauma for surgery… Deep vein thrombosis has resulted in damage to his veins and subsequent varicose vein formation, venous hypertension, venous insufficiency and his current leg problems…..
Mr Allen has permanent damage to his deep veins which is not amenable to surgical intervention. He needs to wear compression garments to reduce the progression and relieve the symptoms. He should avoid prolonged standing and sitting and should try to elevate his legs when possible…’
Comment: I disagree with this advice in that excision of the varicosities proximal left thigh would remove the worker’s main discomfort; prevent further superficial thrombosis with risk of further spread into the deep venous system. When these veins were previously obstructed with thrombus together with a long segment of the long saphenous vein the symptoms were mainly in his proximal left thigh and the distal circulation was not in any significant jeopardy.
11 September 2018, Dr Peter Conrad, General Surgeon report who determined a 20% Whole Person Impairment for Class 2 impairment left lower extremity.
Dr Conrad should have read 20% left lower extremity impairment, which would have converted to 8% Whole Person Impairment. A 20% Whole Person Impairment would mean a left lower extremity impairment of 50% and place the worker’s impairment in Class 3 and the worker’s disability does not warrant this Class.Dr Conrad was apparently unaware of pre-existing changes, as documented by Doppler ultrasound study of the left leg 29 May 2006 and made no deduction.
21 November 2018, Dr Nigel Ackroyd, General and Vascular Surgeon report with extensive Bibliography and Reference.. Dr Ackroyd indicated:
‘I believe the deep venous thrombosis in 2017 was related to the work injury in 2007, DVT and the postphlebitic syndrome are associated with a higher incidence of recurrent DVT…’
Dr Ackroyd’s left lower extremity impairment of 20% Whole Person Impairment,- referring to Class 2, Table 17-38. This would mean a left lower extremity impairment of 50% and place the worker’s impairment in Class 3 and the worker’s disability does not warrant this Class. Dr Ackroyd does not show his workings.
Comment: It is apparent that Dr Ackroyd has misinterpreted (along with other consultants) Table 17-38 and failed to convert Left Lower Extremity impairment to a Whole Person Impairment.
31 December 2018, Dr S Sethi, Gastroenterologist report who indicated under ‘Diagnosis’:
‘Mr Allen has developed irritable bowel syndrome with slow transit constipation and haemorrhoids due to inadequate dietary fibre intake. The constipation and haemorrhoids are entirely unrelated to his work injury and the medication he took afterwards…’
Comment: I did not obtain a history suggestive of irritable bowel syndrome and the history provided by the worker indicated that strong analgesic causing constipation was required following the development of the painful superficial thrombophlebitis affecting particularly the proximal left anteromedial thigh. This is a particularly painful condition and I am not surprised that strong analgesics were prescribed, although I was unable to confirm this at that time in the provided documents.
DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:a.
·Evidence of previous deep venous thrombosis as documented in the left leg venous duplex scan of 29 May 2006, which also demonstrates the extensive proximal varicose veins left proximal anteromedial thigh/groin, associated with the long saphenous vein, which pre-existed the operation of 23 April 2007 to repair the work related umbilical hernia and epigastric hernia. Previous deep venous thrombosis which had occurred in the right leg following the fractured femur in 1985. . At that time or subsequent Mr Allen would have had a deep vein thrombosis, left leg, perhaps undiagnosedhad prior to the doppler study 29 May 2006 and the the operation of 23 April 2007. It is well documented that the history of previous deep venous thrombosis is a definite risk factor for further deep venous thrombosis following trauma, including surgery, or immobilisation, such as long flights, car trips. Or immobilkisation of a limb. Based on this evidence, the deductible proportion of the left lower extremity is one-half. This is in agreement with Dr Garvey.
·Regarding haemorrhoids and rectal bleeding there is sufficient evidence to indicate a deductible proportion of one half as haemorrhoids and rectal bleeding secondary to constipation has been also caused by analgesics for back pain. Half of 1%=0.5% which on rounding up (AMA 5 Page 20, 2.5d)=1%.”
The Panel adopts the report of Medical Assessor Long. It can be seen that Dr Ackroyd made the error of finding a 10% value in relation to the left lower extremity pursuant to Table 17-38 of AMA 5, but overlooked the fact that the Table provided for a lower extremity impairment, and not a WPI. We observe in passing that this error was also made in the quashed decision by Dr Garvey, of the previous Panel, with the result that
Mr Allen never at any time satisfied or could satisfy the required threshold.For these reasons, the Appeal Panel has determined that the MAC issued on
4 November 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | 3537/20 |
Applicant: | Louis John Allen |
Date of Assessment: | 20 January 2023 |
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 Approved Medical Specialist Dr Crane and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Left lower extremity DVT and varicose veins | 27.03.2007 | Chapter 3; page13-21 Chapter 15. Page 77, 15-7 | Page 554; Table 17-38 | 4% | ½ | 2% |
| Scarring | 27.03.2007 | Chapter 14; Pages73.14TEMSKI Table14.1; Page 74 | Not applicable | 0% | Nil | 0% |
| Digestive system | 27.03.2007 | Chapter 16; Page 79. 16.9 | Chapter 6; Page 131; Table 6-5, Class 1 | 1% | 1/2 | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 3% | |||||
0
2
0