Bellamy v Coles Group Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Bellamy v Coles Group Ltd [2021] NSWPICMP 58
APPELLANT:	Tina Bellamy
RESPONDENT:	Coles Group Ltd
APPEAL PANEL:	Member Jane Peacock Dr Roger Pillemer Dr Gregory McGroder
DATE OF DECISION:	21 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Injury to right lower extremity, lumbar spine and scarring; the Medical Assessor did not assess impairment in respect of the right knee as part of the right lower extremity; Held- as injury was undisputed the right knee should have been assessed and this was an error; re-examination was required; MAC revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 November 2020 Ms Tina Bellamy (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin O’Toole, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 14 October 2020.
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 MAC contains a demonstrable error.
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 WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the MA erred in failing to assess the right knee which was part of the referral for the right lower extremity.

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

Dr Roger Pillemer of the Appeal Panel conducted an examination of the worker on 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. They are not repeated in full, but 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 matter was referred to the MA to assess the degree of permanent impairment, if any, as a result of injury on 11 July 2013 to the right lower extremity, lumbar spine and scarring (TEMSKI).
The MA issued a MAC certifying a total whole person impairment (WPI) of 9% comprising 0% WPI for scarring, 5% WPI for the lumbar spine (comprising an assessment of DRE II at 5% WPI, an allowance of 1% for Activities of Daily Living (ADLs) and a deduction of one-tenth under s 323) and 4% WPI for the right lower extremity based on an assessment of the right ankle.
The worker appealed.
In summary, the appellant submitted that the MA erred as follows:
·        in failing to assess the right knee as part of the assessment for the right lower extremity;
·        in his assessment of 1% for ADLs where the MA recorded and accepted that the injury affected self care and thereby qualified for an allowance of 3% WPI for ADLs;
·        in his assessment of DRE II instead of DRE III for the lumbar spine, and
·        in failing to provide adequate or proper reasons for the s 323 deduction.
There was no complaint about the assessment of 4% WPI for the right ankle nor was there any complaint about the assessment of 0% WPI for scarring.
In summary, the respondent submitted that the MA did not err and the MAC should be confirmed.
Dr Roger Pillemer of the Appeal Panel conducted a re-examination of the appellant and reported to the Panel as follows:

“REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL

Matter No:   M1-490/20
Appellant:   Tina BELLAMY
Respondent:   Coles Group Limited
Examination Conducted By:    Roger Pillemer
Date of Examination:                15 March 2021
Ms Bellamy attended alone today, having had to travel down from Queensland.
1. The workers medical history, where it differs from previous records
I read Ms Bellamy the history she gave to the AMS, Dr Robin O’Toole at the time of her consultation on 4 September 2020. She agrees with the history as given.
2. Additional history since the original Medical Assessment Certificate was performed
On specific questioning Ms Bellamy does not feel there has been any improvement or real change in her condition since she had the MAC carried out in September 2020.
Lumbar Spine
She continues to complain of discomfort across her lower lumbar region particularly on the right side, with discomfort extending into her right hip region and down her right thigh going towards her right knee. Symptoms are described as being constantly present and ranging between 6-9/10.
She feels her symptoms are aggravated by sitting or standing for long and she avoids bending and lifting, and she does get some relief by resting and walking.
Right Ankle
The discomfort is felt anteriorly and laterally, and although she can be almost comfortable at rest with only mild discomfort, symptoms can still go as high as 10/10, particularly if she walks barefooted or wears flat shoes. She does get some relief by ‘walking on tippy toes’ but realizes that she lacks extension of her right ankle region which makes walking difficult.
She gets relief by wearing her joggers with an insert and she says after sitting for any length of time, before she gets going she has to ‘warm it up’, and then she will limp for a while until things settle down.
On direct questioning she is not really troubled by pins and needles or numbness in her foot or ankle region.
She has a full range of right hip and knee movement and the knee itself was stable and there was no fluid in the joint, and nothing to suggest any pathology in the knee itself.
Treatment
At the present time she is having physiotherapy once a week and is still taking tablets but cannot take Panadeine Forte because these ‘don’t agree with me’. She will only take them occasionally when she is having a lot of pain. She does take Celebrex and Nurofen and takes Panadol Osteo 6 times a day, and relies on her joggers for walking.
Activities of Daily Living
Her maximum walking time would be half an hour and she can only drive for short distances and then will have to get out and stretch.
She lives alone although her son has recently moved in, and she can still do a bit of housework but has to do this ‘a bit at a time’. She manages with her self-care provided she can avoid excessive bending.
3. Findings on clinical examination
Ms Bellamy is an adult female in no obvious discomfort today who undresses and dresses without a problem and walks with a slightly antalgic gait on the right side. She had difficulty walking on her heels because of the lack of extension of her right ankle, but was able to walk on her toes. She shows moderate restriction of low back movement getting her fingertips slightly below her knees in flexion, and lateral flexion to the left is slightly more restricted than to the right.
Straight leg raising became uncomfortable at 70° on the right and was unrestricted on the left.
Reflexes are present and equal, sensation is intact and motor power was good in all groups tested.
Importantly she does have a full range of hip and knee movements, but complains of discomfort when stressing her right hip.
She does have a restricted range of ankle movements with 0° of extension of her ankle with her knee flexed and also 0° of extension with her knee extended, but does have a good range of plantar flexion. Inversion and eversion were normal compared to the opposite side. There was no obvious instability present.
4. Results of any additional investigations since the original Medical Assessment Certificate
Ms Bellamy has not had any further investigations carried out.”

The Appeal Panel adopts the report and findings of Dr Pillemer.
In respect of the right knee, the Appeal Panel notes that based on the clinical findings on re-examination, the appellant has a full range of right knee movement and the knee itself was stable and there was no fluid in the joint, and nothing to suggest any pathology in the knee itself. As noted on direct questioning the appellant has some referred pain from her back going into her hip and thigh towards her knee, but there are no symptoms specifically in relation to her right knee. On examination as noted she has a full range of pain-free movement of the knee, the knee itself was stable and there was no fluid in the knee and nothing to suggest any abnormality of the knee itself. Consequently there is no impairment in respect of the right lower extremity in relation to the right knee. This means that the assessment of impairment of the right lower extremity as a result of injury will remain at 4% WPI as assessed by the MA in respect of the right ankle and about which there is no complaint on appeal.
Turning to the lumbar spine. The appellant complained that DRE III should have been assessed as opposed to DRE II in respect of the lumbar spine. The Panel notes the findings on re-examination which showed
“moderate restriction of low back movement getting her fingertips slightly below her knees in flexion, and lateral flexion to the left is slightly more restricted than to the right. Straight leg raising became uncomfortable at 70° on the right and was unrestricted on the left. Reflexes are present and equal, sensation is intact and motor power was good in all groups tested.”

These findings confirm the correctness of the MA’s assessment of DRE II for the lumbar spine at 5% WPI.
However, the assessment by the MA of 1% WPI for ADLs was in error. In accordance with the history taken on re-examination the appellant was having difficulty with housework and in the Panel’s opinion an allowance of 2% WPI for ADLs is appropriate. The Panel notes that this accords with the assessments by both independent medical experts (IMEs) qualified on behalf of the parties. The appellant has submitted that the allowance for ADLs should have been 3% WPI. This submission is not supported by the assessment of the IME qualified on behalf of the appellant Dr Bodel who allowed 2% WPI. The findings on re-examination support an allowance of 2% WPI for ADLs, which as noted is consistent with the other expert’s opinion. Accordingly, the Panel will allow 2% WPI which gives an overall impairment of the lumbar spine of 7% WPI.
Turning now to the deduction under s 323. The MA made a deduction of one-tenth. The appellant complains on appeal that the MA should not have made this deduction “without first reasoning what the pre-existing condition to the lumbar spine is and explaining how the pre-existing condition caused or contributed to the impairment.” The respondent refuted this on appeal referring to MA’s referral to the imaging in the form of a CT scan performed on 15 May 2017 which showed degenerative changes and the MA’s diagnosis that the injury was “exacerbation of pre-existing degeneration of the lumbar spine.”
In the Panel’s view the one-tenth deduction made by the MA is justified by the following:

·        On page 2 of the MAC the MA has described the injury as “falling against the wall and then twisted her right ankle”. The injury to the ankle was very severe but the injury to the back would seem to have been minor noting the description.

·        More importantly on the same page the MA has noted that “She recalled that her back did not start to cause her concerns until 2016”. That is 2½ to 3½ years after the injury. Therefore, there cannot have been any significant injury to her lumbar spine at the time.

·        On page 7 of the MAC the MA has noted the CT scan carried out in May 2017 showing “Severe L5/S1 degeneration, bone on bone irregularity…”. This is obviously of very long standing and could not have been caused by the injury in July 2013 for the reasons suggested above.
In these circumstances, the panel is satisfied that the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed for the lumbar spine and the Panel is unable to discern error in the deduction of one-tenth made by the MAC under s 323.
Accordingly, the assessment of impairment that results from injury on 11 July 2013 is as follows:

Body Part or system Date of Injury Chapter,
page and paragraph number in WorkCover Guides
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality Sub-total/s % WPI (after any deductions in column 6)

Lumbar spine
11/07/13
Chapter 4
Page 24-29 Chapter 15
Page 384
Table 15-3
7%

1/10

6%

Right lower extremity
11/07/13
Chapter 3
Pages 13-23 Chapter 17
Pages 523 to 564
4%

nil

4%

Scarring
TEMSKI

11/07/13
Chapter 14
Pages 73-74
0%

not applicable

0%

Total % WPI (the Combined Table values of all sub-totals)

10%

For these reasons, the Appeal Panel has determined that the MAC issued on 14 October 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

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

The Appeal Panel revokes the Medical Assessment Certificate of Dr Robin O’Toole 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 WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality	Sub-total/s % WPI (after any deductions in column 6)
Lumbar spine	11/07/13	Chapter 4 Page 24-29	Chapter 15 Page 384 Table 15-3	7%	1/10	6%
Right lower extremity	11/07/13	Chapter 3 Pages 13-23	Chapter 17 Pages 523 to 564	4%	nil	4%
Scarring TEMSKI	11/07/13	Chapter 14 Pages 73-74	0%	not applicable	0%
Total % WPI (the Combined Table values of all sub-totals)					10%

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002

Jane Peacock (Member)
Dr Roger Pillemer (Medical Assessor)
Dr Gregory McGroder (Medical Assessor)

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Citations

Bellamy v Coles Group Ltd [2021] NSWPICMP 58

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Statutory Material Cited

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Campbelltown City Council v Vegan [2006] NSWCA 284

[2021] NSWPICMP 58

21 April 2021