Anastasopoulos v Icom Solutions Pty Ltd
[2024] NSWPICMP 595
•22 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Anastasopoulos v Icom Solutions Pty Ltd [2024] NSWPICMP 595 |
| APPELLANT: | Peter Anastasopoulos |
| RESPONDENT: | Icom Solutions Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 22 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) able to rely on his findings from his examination of the appellant; whether MA adequately explained his reasons for his assessment; whether MA correct to find appellant had a pre-existing condition that contributed a proportion of the appellant’s permanent impairment; Held – MA able to rely on his findings and adequately explained his reasons and was right to find appellant had a pre-existing condition; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 June 2024 Peter Anastasopoulos, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
6 May 2024.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was an employee of Icom Solutions Pty Ltd, the respondent. On
26 October 2018 whilst working for the respondent, the appellant fell from a ladder landing on his right side and injuring himself. The insurer for the respondent commenced making weekly payments of compensation to appellant after his injury.On 15 March 2023 the insurer wrote to the appellant advising him that on 22 October 2023 it would have made weekly payments of compensation to him for a total of 260 weeks and it would cease paying him weekly compensation from that date. It reminded him that he had been assessed by Dr Anthony Smith on 20 April 2023 who had assessed the degree of his permanent impairment from his injury was 15% whole person impairment (WPI). The Appeal Panel notes Dr Smith is an orthopaedic surgeon.
The Appeal Panel notes that, by virtue of s 39 of the Workers Compensation Act 1987 (the 1987 Act) a worker is not entitled to weekly payments of compensation after an aggregate period of 260 weeks in which weekly payments of compensation have been made to the worker unless the degree of the worker’s permanent impairment from his or her injury results in a permanent impairment of more than 20%. Hence, the reason for the insurer’s letter of 15 March 2023.
Following receipt of that letter the appellant’s solicitors organised for the appellant to be examined by orthopaedic surgeon Dr Mark Ridhalgh on 18 September 2023. In a report of that date, Dr Ridhalgh advised that from the incident on 26 October 2018 when the appellant fell from a ladder the appellant suffered an injury to his cervical spine, which he diagnosed was an aggravation of cervical spondylosis, an injury to his right elbow in the form of an aggravation of degeneration in his right elbow, an injury to his lumbar spine and an injury to his right hip in the form of an aggravation of osteoarthritis in that joint. Dr Ridhalgh also advised that the appellant had an injury to his right shoulder which was caused by compromise of his C4 vertebra.
In a further report dated 10 October 2023 Dr Ridhalgh advised that he assessed the degree of the appellant’s permanent impairment from his injuries was 31% WPI. That consisted of 14% WPI for his lumbar spine, 5% WPI for his cervical spine, 6% WPI for his right shoulder, 1% WPI for his right elbow and 8% WPI for his right hip. Relevant to the matters that have been raised in the appellant’s appeal against the medical assessment, Dr Ridhalgh advised that he had assessed the degree of the appellant’s permanent impairment relating to his right hip by reference to Table 17-31 of AMA5. He said he did so because a CT of the appellant’s hips had shown mild to moderate degeneration of the right hip. Dr Ridhalgh acknowledged that he did not have any X-ray studies to measure the decrease in cartilage interval of the right hip.
Also relevant to the issues raised in the appeal is that Dr Ridhalgh advised that he had assessed the appellant’s impairment relating to his right elbow was 2% WPI overall, but he made a deduction under s 323(1) of the 1998 Act of 50% on account of pre-existing degeneration that existed in the elbow.
Following Dr Ridhalgh issuing those reports the appellant sought review by the insurer of its decision to cease weekly payments of compensation to him from 22 October 2023. He supported his request by the reports of Dr Ridhalgh and also reports of his treating neurosurgeon, namely Dr Nigel Pope, dated 1 August 2023, 13 September 2023 and
16 October 2023. In response to that, the insurer wrote to the appellant’s solicitors on
9 November 2023 advising them to the effect that it was not required to review its decision of 15 June 2023. It further advised the appellant’s solicitors that if the appellant were to make a claim for compensation under s 66 of the 1987 Act that its response to that claim would in effect be a review of its decision to cease weekly payments of compensation to the appellant.It would seem that the appellant did not take up that suggestion, but rather on
30 January 2024 his solicitors lodged on his behalf with the Personal Injury Commission (Commission) an Application for Assessment by a Medical Assessor seeking the Commission refer to a Medical Assessor the medical disputes between him and the respondent’s insurer relating to the degree of his permanent impairment from the injury he suffered on 26 October 2018. A delegate of the President of the Commission duly did so and on 17 April 2024 the Medical Assessor examined the appellant so as to assess those medical disputes.
MEDICAL ASSESSMENT CERTIFICATE
As mentioned, the Medical Assessor issued the MAC on 6 May 2024. In that he certified that he assessed the degree of the appellant’s permanent impairment from his injury is 19% WPI. That comprised 0% WPI relating to the appellant’s cervical spine, 16% WPI relating to the appellant’s lumbar spine, 4% WPI relating to the appellant’s right upper extremity, and 0% WPI relating to the appellant right lower extremity.
The Medical Assessor calculated his assessment relating to the appellant’s right upper extremity was calculated on the basis that he assessed the appellant had 2% right upper extremity impairment relating to his right elbow and 5% right upper extremity relating to his right shoulder. The Medical Assessor also found that a pre-existing osteoarthritis in the appellant’s right elbow contributed to his impairment of that joint and considered a deduction should be made under s 323(1) of the 1998 Act on account of that, but he further observed that when that deduction is made it produced the result of 1.8 which, when rounded, came to 2% upper extremity impairment. In other words, in effect, the deduction was essentially nugatory.
The Medical Assessor also indicated that the restricted movement the appellant had of his right shoulder, based on the criteria of Table 15.3 of AMA5, produced 9% upper extremity impairment and that the restricted movement that he found the appellant had of his left shoulder yielded 4% upper extremity impairment based on the same criteria. He deducted from the impairment he assessed the appellant had of his right shoulder the impairment he found the appellant had his “unaffected shoulder”, that is his left shoulder, because he said that is “taken as “normal”. Hence the result of 5% upper extremity impairment he assessed for the appellant’s right shoulder. The Appeal Panel notes that method the Medical Assessor adopted accords with the instructions contained in paragraph 2.20 of the Guidelines.
In his Appeal against the Medical Assessor’s assessment of the medical disputes, the appellant has challenged the assessment the Medical Assessor made relating to the impairment the Medical Assessor made of the impairment of his right hip, and right shoulder and also the fact that the Medical Assessor made a deduction under s 323(1) of the 1998 Act when assessing the degree of the permanent impairment he had relating to his right elbow.
Relevant to those matters, the Medical Assessor recorded in the MAC that he found that the appellant had the following range of movement of his shoulders:
Movement
Right
Left
Flexion
130°
170°
Extension
50°
50°
Abduction
90°
120°
Adduction
50°
50°
Internal Rotation
60°
80°
External Rotation
90°
90°
The Medical Assessor also recorded that the appellant’s right hip showed full range of motion and that he assessed the appellant’s impairment of his hip by reference to the range of motion. That consequently meant, consistent with Table 17.9 of AMA 5, that the appellant has 0% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established any of the grounds for appeal on which he relied, and consequently the Appeal Panel neither had power nor reason to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by failing to consider whether his permanent impairment relating to his right hip could be assessed by reference to the criteria of Table 17.31 of AMA5.
The appellant further submitted that the Medical Assessor’s measurement of the restricted range of movement he had in abduction of his left shoulder was markedly different from that which Dr Ridhalgh had found eight months earlier. The appellant submitted that there “is no evidence of the Medical Assessor attempting to reconcile the large discrepancy of the range of movement”. The appellant submitted that the Medical Assessor erred by failing to identify the disparity and failing to provide reasons regarding the validity of it.
The appellant submitted that there was no material before the Medical Assessor to support his conclusion that the pre-existing degenerative changes in his right elbow contributed a proportion of his permanent impairment to that joint from his injury. The appellant submitted that it was not merely sufficient for the Medical Assessor to point to a pre-existing condition and he was required to explain how the pre-existing condition contributed to his impairment. The appellant submitted that the Medical Assessor failed do so, and that failure is a demonstrable error.
In reply, the respondent submitted that the film of the CT scan upon which Dr Ridhalgh based his assessment of the appellant’s impairment relating to his right hip was not made available to the Medical Assessor and hence the Medical Assessor was unable to make an assessment relying on that. The respondent submitted that the Medical Assessor’s assessment was based on the correct criteria and based on the evidence before him.
The respondent further submitted that with respect to the Medical Assessor’s assessment of the appellant’s impairment relating to his right shoulder, it was appropriate for the Medical Assessor, and consistent with paragraph 2.20 of the Guidelines, to deduct from the upper extremity impairment the appellant had relating to the restricted range of movement of his right shoulder the upper extremity impairment he had due to restricted range of movement in his left shoulder. The respondent submitted that there was no obligation on the Medical Assessor to outline the differences between his own examination findings and that of
Dr Ridhalgh. The only requirement was that the Medical Assessor explain his rationale.Regarding the s 323(1) deduction the Medical Assessor made, the respondent highlighted that the appellant had in the year preceding his workplace injury received treatment for his right elbow. The respondent highlighted the Medical Assessor took account of that. The respondent submitted that the approach the Medical Assessor adopted with respect to the application of s 323(1) was correct and in accordance with the relevant authorities. The respondent highlighted that Dr Ridhalgh also made a deduction of 50% under s 323(1) when assessing the degree of the appellant’s impairment relating to his right elbow.
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.
Right hip
A report on a CT scan of the appellant’s right hip that was done on 19 November 2018 revealed osteoarthritis in that hip. Given that investigation was done less than a month after the appellant suffered his injury, it is apparent from the report on that investigation that the osteoarthritis the investigation revealed existed in the appellant’s right hip at the time he suffered injury. In other words, the incident on 26 October 2018 by which the appellant suffered that injury to his right hip did not cause the osteoarthritis. That pathology was not the injury. The appellant’s injury was an aggravation of that existing pathology, which resulted in the appellant suffering symptoms from it.
There are two reasons why the Medical Assessor was correct not to use the criteria of Table 17.31 of AMA5 to rate the appellant’s impairment from the injury the appellant suffered on
26 October 2018 insofar as that related to his right hip.Firstly, the injury was, as has just been explained, not the osteoarthritis in his right hip, but rather the aggravation of that osteoarthritis that generated symptoms. In arguendo, whilst it may be the case that the appellant has a ratable impairment as a consequence of the osteoarthritis in his right hip (but to stress the Appeal Panel is not making that finding because as will shortly be explained that cannot be known from the evidence), if the appellant’s permanent impairment were to be assessed by reference to that pathology then a deduction under s 323(1) of the 1998 Act of 100% would have to be made because all of his permanent impairment assessed by reference to that method would be due to the osteoarthritis that was pre-existing in his hip.
The second reason is that the material before the Medical Assessor did not enable him to measure the cartilage loss in the appellant’s right hip. The only material relating to the osteoarthritis in the appellant’s right hip was the report on the CT scan that was done on
19 November 2018. That report does not indicate that any measurement was made of loss of cartilage in the appellant’s right hip. Further, the Guidelines at paragraphs 3.20-3.23 require that a plain X-ray that has at least two views is to be used to measure the cartilage loss if impairment is to be assessed by reference to arthritis. No plain X-rays seem to have been done of the appellant’s hips and certainly, if they had, those films were not made available to the Medical Assessor.Consequently, there was no evidence before the Medical Assessor that would enable him to measure the cartilage loss in the appellant’s right hip in order to assess his permanent impairment by reference to arthritis.
Right shoulder
Section 325(2)(c) and (d) of the 1998 Act requires a Medical Assessor to set out the reasons for his or her assessment and set out the facts on which the assessment is based. That obligation clearly requires a Medical Assessor to explain their opinion but it does not require a Medical Assessor to explain why their findings or their reasons upon which they make an assessment, differ from the findings or opinions of others. A Medical Assessor is required to consider the material that has been placed before them that is relevant to the assessment the Medical Assessor makes, and so long as the Medical Assessor has considered that material, and has set out the facts upon which their opinion is based and has explained their opinion, then the Medical Assessor will not have erred. Specifically, the Medical Assessor will not have erred by not explaining why his opinion differs from another examiner.[2] Essentially, and in any event, by abiding the obligation under s 325(2) it will be apparent why the Medical Assessor’s opinion differs.
[2][2] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43 at [47]. This case relates to a medical appeal panel constituted under Victorian legislation, but the function of the appeal panel is similar to the task a Medical Assessor performs and what is said at [47] therefore is germane to the obligation of a Medical Assessor to provide reasons.
In this case, it is apparent why the Medical Assessor’s opinion has differed from that of
Dr Ridhalgh. This is because he found at the time he examined the appellant that the appellant’s range of motion of each of his shoulders was different from that which
Dr Ridhalgh had found from his examination that occurred eight months earlier. The Appeal Panel also observes that both the findings of Dr Ridhalgh and the Medical Assessor relating to the appellant’s range of movement of his shoulders also differed from findings Dr Smith made from his examination of the appellant that was three months prior to Dr Ridhalgh’s examination and around 11 months prior to the Medical Assessor’s examination. Dr Smith found that the appellant had no restriction in the range of movement of his upper limbs.The Medical Assessor was entitled to rely on his findings from his examination so long as he considered them reliable. Indeed, this is implicit from the Guidelines in paragraph 1.6 in that they instruct the assessment of permanent impairment requires a clinical assessment of a worker on the day the worker presents for assessment. A Medical Assessor is not bound to accept the findings of others.
In this case, it is clear that the Medical Assessor has had regard to the reports of both
Dr Ridhalgh and Dr Smith because he makes reference to them in the MAC. It is consequently apparent that the Medical Assessor considers his findings from his examination were accurate and enabled him to assess the degree of the appellant’s permanent impairment relating to his right shoulder. The Medical Assessor did not indicate he considered his findings to be unreliable. He was not required to rely upon the findings of
Dr Ridhalgh.
Section 323
The Appeal Panel does not accept the appellant’s submissions that there is no information or material to support the Medical Assessor’s assessment that a proportion of his permanent impairment was due to a pre-existing condition in his right elbow. An ultrasound of his right elbow done on 21 November 2018, which was within a month of his suffering injury, revealed osteoarthritis in his right elbow. An X-ray done on his right elbow on 23 August 2023, confirmed that disease.
The Medical Assessor identified in the MAC that the appellant had treatment provided for his symptoms approximately eight months before his injury, following a preceding fall the appellant experienced. In a statement the appellant signed on 16 January 2024 he notes that he experienced right elbow pain between March and October 2017 and received treatment in the form of massage, dry needling and physiotherapy. At the time he suffered his work injury he was however not suffering any symptoms in his right elbow.
The appellant’s impairment relating to his right elbow was assessed by reference to the restricted range of movement he had in his right elbow. The injury he suffered on
26 October 2018 triggered symptoms from the osteoarthritis in his right elbow. In other words, the injury he suffered was an aggravation of pre-existing osteoarthritis in that elbow. It is both the triggering of those symptoms and the existence of the osteoarthritis in his elbow that caused his permanent impairment. That is, it is both the symptoms the injury triggered and the underlying pre-existing osteoarthritis that restricts the movement in his right elbow.Because of that, the Medical Assessor was right to conclude that a proportion of the appellant’s permanent impairment in his right elbow is due to the pre-existing osteoarthritis. Without that pre-existing osteoarthritis, the fall he suffered on 26 October 2018 could not obviously have aggravated any osteoarthritis and the appellant would not have symptoms and would have normal movement.
The Medical Assessor was also correct, in the Appeal Panel’s view, to assume in accordance with s 323(2) of the 1998 Act that the deductible proportion for the purpose of
s 323(1) is 10% and that is because it would simply be difficult and costly to determine the precise proportion and making that assumption is not at odds to the evidence.The Appeal Panel observes, in any event, that even if no deduction was made under
s 323(1), there would be no difference in the outcome in the appeal. This is because, as the Medical Assessor observed, when the deduction was made, the same result is achieved as a consequence of the effect of rounding.For these reasons, the Appeal Panel has determined that the MAC issued on 6 May 2024 should be confirmed.
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