Boss Engineering Pty Ltd v Dixon
[2021] NSWPICMP 110
•1 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Boss Engineering Pty Ltd v Dixon [2021] NSWPICMP 110 |
| APPELLANT: | Boss Engineering Pty Ltd |
| RESPONDENT: | Scott William Dixon |
| APPEAL PANEL: | Member William Dalley Dr Tommasino Mastroianni Dr Roger Pillemer |
| DATE OF DECISION: | 1 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- In an application for lump-sum compensation the worker was assessed by the respective independent medical experts as falling within DRE lumbar category IV with 2% WPI added for interference with activities of daily living; both Independent Medical Experts (IME) agreed that this should be combined with a further 3% WPI for radiculopathy and a further 4% for second and further surgeries yielding a total of 27% WPI; the worker’s IME also assessed 2% WPI in respect of scarring; the insurer’s IME assessed 0% for scarring; the AMS assessed lumbar spine impairment in similar fashion to the respective IMEs; the AMS then added a further component in respect of injury to a nerve assessed in accordance with Table 17-37 of AMA5 (lower extremity impairment) yielding a total of 28% WPI on the Combined Values Chart; the AMS assessed 0% WPI for scarring; appeal limited to inclusion of assessment of nerve damage; Held- the AMS had not allowed procedural fairness in assessing additional nerve damage beyond radiculopathy without reference to the parties; the Panel accepted that the assessment of 27% WPI in accordance with the assessments of the respective IME’s was appropriate on the evidence as was the assessment of 0% WPI in respect of scarring; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 March 2021 the appellant, Boss Engineering Pty Ltd, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 February 2021. The Medical Assessor, Dr Anderson, was at the time of assessment, appointed as an Approved Medical Specialist (AMS) and will be referred to in these reasons as “the AMS”.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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 grounds 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 section 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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
As a result of the activities carried out in the course of his employment, Scott Dixon, the respondent in the appeal, suffered injury to his lower back which is deemed to have occurred on 3 November 2014.
Conservative treatment was unsuccessful and Mr Dixon was referred to a neurosurgeon, Dr Timothy Tsiu, for treatment. Mr Dixon underwent surgery to his lumbar spine in June 2015 with limited benefit. His condition continued to deteriorate and in September 2016 Dr Siu carried out an L/5 fusion. Mr Dixon continued to suffer painful symptoms and in December 2017 Dr Siu performed further surgery to remove a loose internal fixation component. Mr Dixon continued to experience painful symptoms and on 25 September 2018 Dr Siu performed a further L4/5 fusion using a bone graft harvested from the right hip.
On 14 April 2020 Mr Dixon was examined by an independent medical expert, Dr Alan Hopcroft, at the request of Mr Dixon’s solicitors for the purposes of a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act).
Dr Hopcroft assessed Mr Dixon as falling within DRE IV in respect of the lumbar spine (20% whole person impairment (WPI)) together with a further 2% WPI with respect to restrictions in activities of daily living yielding 22% WPI. Dr Hopcroft added an additional 2% WPI for each of the three subsequent surgical procedures and a further 3% for radicular symptoms.
Dr Hopcroft also assessed 2% WPI in respect of scarring. On the Combined Values Chart[1] Dr Hopcroft calculated total impairment arising from the injury of 28% WPI. Mr Dixon’s solicitors made a claim in accordance with Dr Hopcroft’s assessment.
[1] AMA 5 page 604.
Mr Dixon was examined by an independent medical expert, Dr Richard Powell, who assessed Mr Dixon as having 27% WPI in respect of the lumbar spine. Dr Powell did not assess any degree of impairment with respect to scarring.
The dispute as to the extent of impairment was referred to the AMS. The referral requested assessment of:
“• the degree of permanent impairment of the worker as a result of an injury (s 319 (c))
• whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319 (d))
• whether impairment is permanent (s 319 (f))
• whether the degree of permanent impairment of the injured worker is fully ascertainable (s 319 (g)
Date of Injury: 3 November 2014
Body part/s referred: Lumbar spine, Scarring (TEMSKI)
Method of assessment: Whole person impairment”
The AMS assessed Mr Dixon as having 28% WPI in respect of the lumbar spine. In addition to the components of impairment assessed by Dr Hopcroft and Dr Powell, the AMS applied Table 17-37[2] and Table 16-10[3] to add a further 2% (after rounding) so as to yield a total of 28% WPI. The AMS assessed the scarring at 0% WPI so that the total impairment assessed was 28% WPI.
[2] AMA 5 page 552 (Impairments Due to Nerve Deficits).
[3] AMA 5 page 482 (Determining Impairment of the Upper Extremity Due to Sensory Deficits or Pain Resulting from Peripheral Nerve Disorders).
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 it was not necessary for the worker to undergo a further medical examination the only issue relates to the inclusion in the assessment by the AMS of the component added with respect to hypersensitivity in the area in of the distribution of the lateral cutaneous nerve of the right thigh.
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.
Medical Assessment Certificate
The AMS assessed Mr Dixon as falling within DRE Lumbar Category IV warranting 22% WPI including a further 2% WPI for interference with activities of daily living. The AMS added a further 3% for continuing radiculopathy, 2% in respect of the second surgery and a further 1% in respect of the third and fourth surgical operations pursuant to the Guidelines, Table 4.2. Scarring was assessed at 0% WPI.
The AMS added:
“The hypersensitivity from the area just below the bone graft of the right hip is in the distribution of the lateral cutaneous nerve of thigh (sic). This comes from L2 and L3 which is well above the area of lumbar pathology. It is therefore assessed that this is associated with the harvesting of the bone graft and is not strictly an element of radiculopathy. This is therefore assessed in AMA5 page 552, Table 17-37. The maximum whole person impairment for dysaesthesia is 3%. This is further modified by Table 16-10 on Page 482. Grade III is selected with 50% of the maximum. This gives 1.5% which is rounded up to 2%.”
The AMS explained that he calculated the total impairment by combining 22% in respect of classification within DRE IV and interference with activities of daily living with 7% in respect of Table 4.3 (radiculopathy and further surgery) and 2% respect of peripheral nerve damage. Applying the Combined Values Chart yielded a total of 28% WPI.
The AMS made no deduction for previous injury or pre-existing condition or abnormality (section 323 of the 1998 Act).
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the AMS has fallen into error in assessing a body part/system, specifically the lateral cutaneous nerve of the right thigh, which has not been the subject of a claim and which was not referred for assessment.
In reply, the respondent submits that the AMS had correctly conducted his statutory task of assessing all impairments resulting from the lumbar spine.
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[4] 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.
[4] [2006] NSWCA 284.
The parties’ submissions are limited to the inclusion by the AMS of any additional degree of impairment in respect of nerve damage of a different nature to radiculopathy. That is appropriate since both Dr Hopcroft and Dr Powell agreed that Mr Dixon should be assessed at 27% WPI in respect of the lumbar spine. That assessment accords with the assessment by the AMS before addition of the impairment said to arise from nerve damage.
Dr Powell reported “Table 4.2 on Page 29 allocates an additional 3% for any persisting radiculopathy, 2% for a second operation and 2% for each of the two subsequent operations. The total modifiers are thus 7%.” It is a necessary inference that Dr Powell was in fact, correctly, allowing 2% as the total for the third and fourth operations thereby arriving at total modifiers of 7%.
Dr Hopcroft assessed:
“He has a DRE Lumbar Category IV impairment of his back with a whole person impairment of 20%. No subtraction from that impairment is required as he had no pre-existing problems with the function of his lumbar spine.
With three further operations at that level by way of reference to the SIRA Guides he has an additional 2% for each procedure.
With recurrent post-operative significant radicular symptoms he accrues a further whole person impairment of 3%.
With ongoing significant restrictions in activities of daily living he accrues a further whole person impairment of 2%.
With significant scarring on his lumbar spine but with disappearing scarring on his right loin by reference to the TEMSKI scale he has a whole person impairment of 2%.
Using the combined values Chart this patient therefore has an overall whole person impairment of 28%.”[5]
That total suggests that, in performing his calculations, Dr Hopcroft appropriately only assigned 1% WPI respectively to the third and fourth operations.
[5] The calculation on the Combined Values Chart appears to have been; 20+2 = 22, 22+3 = 24, 24+4 = 27 and 27+2 = 28.
The appellant noted the decision of Harrison AsJ in Dening v Oltoy Pty Ltd trading as Noble Toyota[6] as authority for the proposition that “subsections 325(2)(a) and (b) dictate that the AMS is only to assess the specific matters ‘referred for assessment’” (at [72]).
[6] [2014] NSWSC 1224.
The respondent referred to the decision of Hoeben CJ at CL in Cincotta v Police Citizens Youth Clubs NSW Limited & Others[7] noting that His Honour said:
“It is apparent that the AMS and Appeal Panel were required to engage in such assessment of causation as was necessary to discharge their statutory task of determining the degree of permanent impairment resulting from the injury in question.”
[7] [2018] NSWSC 1588 (Cincotta).
The Panel accepts that the referral to the AMS involved consideration of the level of impairment arising from injury to the lumbar spine and consequential scarring.
Adamson J reviewed the authorities relating to the referral of disputes to an AMS (now Medical Assessor) in Skates v Hills Industries Ltd[8]. Her Honour noted that Hoeben, CJ at CL, had said in Cincotta; “The scope of an ASM’s task, and therefore that of the Appeal Panel, was defined by two factors – the dispute referred to the AMS/Appeal Panel and the relevant legislative provisions.”
[8] [2020] NSWSC 837 (Skates).
Her Honour said in Skates:
“The evident purpose of s 325(1) is not only to provide an AMS with the parameters of his or her task but also to provide procedural fairness to the parties. There is also a third purpose: to prevent overlap if there is more than one referral because the nature of the worker’s work-related condition goes beyond a single speciality. The examination conducted by the AMS is conducted in the absence of the Employer or the legal representatives for either party. Thus there is, effectively, no opportunity for a party to respond to a change in the parameters delineated in the referral. This highlights the importance of the terms of the referral, which is set by reference to the application to resolve a dispute and the reply, following which the parties may provide medical reports of experts retained by them for the consideration of the AMS. It is significant that the AMS’s jurisdiction is limited by the terms of the referral, rather than by reference to the matters contained in the medical reports provided by the parties.”[9]
[9] At [51].
The Panel accepts that the independent medical experts, Dr Hopcroft and Dr Powell, were in agreement as to the extent of impairment arising from injury to the lumbar spine. Both assessed 27% WPI (although Dr Hopcroft added a further 2% for scarring to yield 28% WPI on the Combined Values Chart).
The AMS assessed dysaesthesia by reference to Table 17-37 of AMA 5 which relates to the assessment of the lower extremities. This body part was not referred for assessment and neither was the nervous system.
By assessing dysaesthesia without reference to the parties, the AMS effectively denied the appellant the opportunity to obtain medical evidence bearing on this aspect of assessment and providing relevant material for consideration by the AMS. The Panel accepts that the claim made on behalf of Mr Dixon did not include assessment of dysaesthesia and accordingly the appellant was not placed on notice that consideration of this pathology was to be considered.
The Panel accepts that the appellant was denied procedural fairness and this denial constitutes demonstrable error. It is therefore necessary for the panel to consider the whole of the evidence in order to assess the degree of impairment in accordance with the terms of the referral.
No submissions are addressed to the assessment of the lumbar spine other than with respect to the nerve damage as a result of radiculopathy, and not as a result of peripheral nerve damage. Upon consideration of the uncontested evidence, Mr Dixon is appropriately assessed as falling within DRE Lumbar Category IV (20% WPI) with a further 2% assessed and added pursuant to clauses 4.33 to 4.36 of the Guidelines, yielding a total of 22% WPI.
Pursuant to clause 4.37 of the Guidelines Mr Dixon is entitled to assessment of a further 3% WPI in respect of “residual symptoms and radiculopathy”. Mr Dixon is also entitled to a further 2% WPI in respect of the second operative procedure and a further 1% for each of the third and fourth operative procedures, to give a total of a further 7% which is to be combined with 22% on the Combined Values Chart to yield a total of 27% WPI.
No submissions were addressed to the assessment of scarring. The Panel notes the photographic evidence and the findings of the AMS on examination and considers that an assessment of 0% WPI is appropriate.
Accordingly, the Panel is satisfied that Mr Dixon suffered 27% WPI in total as a result of injury to the lumbar spine and a consequential scarring. There is no evidence of any prior injury or pre-existing condition or abnormality warranting a deduction pursuant to section 323 of the 1998 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 February 2021 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: | 6185/20 |
| Applicant: | Scott William Dixon |
| Respondent: | Boss Engineering Pty Ltd |
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 Tim Anderson 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 AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Lumbar spine | 3/11/14 | Chapter 4, pages 25-29, Table 4.2 | Chapter 15, Par 15.3,4; Table 15-3 | 27% | Nil | 27% |
| 2. Scarring | 3/11/14 | Chapter 14, Table 14.1 | Not applicable | 0% | Nil | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 27% | |||||
Mr William Dalley
Member
Dr Tommasino Mastroianni
Medical Assessor
Dr Roger Pillemer
Medical Assessor
22 June 2021
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