Burfitt v Secretary, Department of Education
[2021] NSWPICMP 66
•3 May 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Burfitt v Secretary, Department of Education [2021] NSWPICMP 66 |
| APPELLANT: | Susan Burfitt |
| RESPONDENT: | Secretary, Department of Education |
| Appeal Panel: | Member John Wynyard Dr Mark Burns Dr Brian Noll |
| DATE OF DECISION: | 3 May 2021 |
| catchwords: | WORKERS COMPENSATION- Appeal against finding of nil WPI for lumbar spine in 7% finding for left lower extremity and scarring: Medical Assessor mistook reasoning of specialist for accepting DRE II assessment for lumbar spine; failed as a consequence to give adequate reasons for lumbar DRE I finding where both specialists had found DRE II; re-examination and call for unserved neurologist report re peripheral neuropathy; Held- symptomatology in toes caused by peripheral neuropathy and not compensable, but on examination criteria for a DRE II finding present; MAC revoked and 7% WPI added. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 December 2020 Susan Burfitt, the appellant, lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Ian Meakin, an Approved Medical Specialist (now Medical Assessor (MA)) who issued a Medical Assessment Certificate (MAC) on 4 November 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 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.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is a reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 28 September 2020 the delegate referred this matter to an MA for an assessment of WPI caused to the left lower extremity (ankle), scarring (TEMSKI) and lumbar spine caused by injury on 20 October 2010.
Ms Burfitt is 64 years old and was employed as an administrative assistant for the Department of Education where she had been working for approximately 20 years.
On 20 October 2010 she suffered an inversion twisting injury to her left ankle.
Investigations followed and on 19 April 2011 she came to an arthroscopic debridement of a small but stable osteochondral lesion of the talar dome with Dr O'Carrigan. This surgical treatment did not assist and she came to an autologous chondrocyte implant with Dr Peter Lam on 27 January 2012. This was not successful either and an MRI scan of 2 November 2012 showed incomplete peripheral integration of the graft.
A further procedure was carried out on 19 August 2014 with Dr Lam where it was noted that the whole of the graft was unstable and delaminated, and was removed with local debridement of the subchondral bone.
In 2014 Ms Burfitt experienced the onset of lower lumbar back pain because she was using a knee walker and crutches and other appliances.
She came under the care of Dr David Manohar who performed a sympathetic ganglion block and neural blockade at the L5/S1 level to try and assist with back pain.
Ms Burfitt by February 2018 was suffering continued symptomatology in the left ankle and continuing low back pain with numbness involving the dorsal aspect of all toes including the great toe.
She came under further unsuccessful treatment with Dr Manohar in 2019 and has now ceased to see him.
Since March 2020 she has been using Lyrica which has had the effect of decreasing the paraesthesia in the toes and she has also been treated by a podiatrist.
The MA assessed 6% WPI for the left lower extremity (ankle), 1% for the scarring and 0% for the lumbar spine, giving a combined value of 7% 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 WorkCover Medical Assessment Guidelines.
The appellant sought to be re-examined by an Appeal Panel MA. Having found a demonstrable error, the Panel arranged for a re-examination with Dr Mark Burns for 12 April 2021.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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.
Ms Burfitt appealed only against the finding in relation to the lumbar spine. She alleged in that respect that the MA has made four errors:
· failure to consider whether the lumbar spine findings could qualify for a DRE II rating under the relevant Table of AMA 5;
· failure to consider all relevant evidence;
· misstatement of the examination findings and opinion of Dr Peter Bentivoglio, and
· failure to give adequate reasons in the light of the relevant evidence.
The MA recorded Ms Burfitt’s symptoms.[1] He said:
“Ms Burfitt continues to describe low lumbar back pain in the mid-line. This pain fluctuates in intensity and that she describes it as a constant dull ache. She can be free of it for short periods. There is also a feeling of paraesthesia on the dorsal aspect of all the toes of both feet, including the great toes, more so on the left side. There is also the continuing discomfort around her left ankle region on weight bearing.”
[1] Appeal papers page 33.
The MA conducted an examination and said relevantly:[2]
“In respect of her lumbar spine, there is a symmetrical loss of active range of motion in all planes at three-quarters of normal expected range referencing flexion and extension and lateral flexion and rotation to the right and left. There is no evidence of palpable or paravertebral muscle spasm or guarding. She has pain that is noted on extension of the lumbar spine. There is a negative straight leg raising test on the right and left side in both the supine and sitting position…”
[2] Appeal papers page 34.
The MA noted the investigations, and said in his summary:[3]
“Due to her difficult mobilisation there was onset of low back symptoms which have continued through to the present time, despite conservative treatment including physiotherapy and the passage of time and the resumption of a relatively normal gait.
In 2019 and 2020 there was the onset of subjective partial sensory loss in the toes of both feet presumably relating to the lumbar back injury. There have been nerve conduction studies performed in March or April 2020, which I am not privy to. Ms Burfitt herself does not know the results of these tests.”
[3] Appeal papers page 36.
In explaining his calculations, the MA said:[4]
“At the time of today’s assessment there is a symmetrical restriction of active range of motion of the lumbar spine with no evidence of palpable or paravertebral muscle spasm or guarding. The definition of radiculopathy as set out in Item 4.27 of the Guides is not met. There is no loss or asymmetry of reflexes or evidence of muscle weakness or muscle atrophy that can be localised to appropriate spinal nerve root distribution or not explained by the pathology in the left ankle… which is noted by the minimal wasting of the left calf. There are negative tension signs in the lower extremities. The imaging studies are not consistent with the sensory findings. These sensory findings today in my opinion do relate to the lumbar spine rather than to local ankle pathology on the left side. The definition of radiculopathy as set out in Item 4.27 of the Guides requires that two or more criteria are found out of a list of six signs, only one of which is present. The definition of radiculopathy is therefore not fulfilled.
With reference to Table 15.5 AMA 5 and noting the symmetrical active loss of range of motion of the lumbar spine examination, in my opinion at the time of today's assessment the Applicant demonstrates a DRE Lumbar Spine Impairment Category I - 0% whole person impairment. On close questioning, any limitation of activities of daily living relating to Ms Burfitt are due to the more significant discomfort from her left ankle region.”
[4] Appeal papers page 37.
The MA said at paragraph 10c. when considering the opinion of Dr Bentivoglio:[5]
“…. He noted at the time of examination of the lumbar back that there was restriction of active range of motion of the back with no localised motor, sensory or other reflex abnormalities in the lower extremity. He did note the 0.5cm wasting of the left calf due to multiple ankle surgeries. Dr Bentivoglio assessed a Category II lumbar spine impairment due to asymmetry of movement with a combined 13% whole person impairment.”
Submissions
[5] Appeal papers page 38.
The appellant submitted that the MA had assessed DRE I on the basis that there were no criteria as set out in the relevant table of AMA 5 that qualified Ms Burfitt for a DRE II categorisation.
The appellant then referred to the findings of both medico-legal experts on each side of the record, Dr Andrew Porteous for the appellant and Dr John Bentivoglio for the respondent, noting that not only had Dr Porteous (who had been retained by the appellant), but Dr Bentivoglio for the respondent had both certified a DRE II rating for the lumbar spine.
The appellant submitted that Dr Bentivoglio’s findings on examination were very similar to those of the MA, but Dr Bentivoglio’s assessment was made on the basis of the MRI scan and the description of the symptoms - particularly as to the symptoms in both great toes. It was submitted that the MA had misstated Dr Bentivoglio’s reasons for DRE II.
In recording Ms Burfitt’s current symptoms in his report of 2 March 2020,[6] Dr Bentivoglio (in the context of discussing the left ankle) said:
“… She also noticed numbness present involving the great toes of both feet. Initially it was only on the right-hand side….
As far as her back is concerned, with discal damage seen at the L5/S1 level of her lumbar spine and with the fact that she experiences symptoms present in both great toes, I would assess her as having a DRE category 2 impairment of her lumbar spine which from table 15-3 on page 384 gives rise to a 5% whole person impairment.”
[6] Appeal papers page 263.
We were referred to the relevant Table in AMA 5 which contains the criteria for the various ratings that can be given for an injury to the lumbar spine.
It was submitted that the MA had erred in finding that Dr Bentivoglio had found asymmetry of movement. Dr Bentivoglio did not base his DRE II calculation on any asymmetric loss of range of motion, the appellant argued, but because of the presence of sensory loss in the great toes, and the pathology shown on the MRI scan. These findings were identical, it was said, with those of the MA, who had failed to explain his conclusion, and his process of reasoning for not also finding a DRE II had not been exposed.
The appellant submitted that the MA was obliged to provide reasons and an explanation as to his conclusion regarding the sensory findings in the great toes and the imaging studies, given the acceptance by Dr Bentivoglio that such findings justified a DRE II rating.
The respondent
The respondent referred to the criteria listed under the categorisation of DRE I in the AMA 5 Table and compared them with that for DRE II.
We were referred to Smith v Liquid Services Pty Ltd,[7] Merza v Registrar of the Workers Compensation Commission,[8] Pitsonis v Registrar of the Workers Compensation Commission,[9] Mahenthirarasa v State Rail Authority of NSW,[10] Ferguson v State of NSW[11] and Vitaz v Westform (NSW) Pty Ltd[12] as to the definition of a demonstrable error.
[7] [2007] NSWSC 687.
[8] [2006] NSWSC 939.
[9][2007] NSWSC 50.
[10] [2007] NSWSC 22.
[11] [2017 NSWSC 887 (Ferguson).
[12] [2011] NSWCA 254.
The respondent submitted that the MA’s misstatement of Dr Bentivoglio’s reasons for awarding a DRE II category did not constitute a demonstrable error. The MA had accurately recorded the findings made by Dr Bentivoglio, and his reasons for differing with Dr Bentivoglio’s opinion were not affected by the misstatement.
It was submitted that the appellant was merely seeking to cavil with matters of clinical judgment, which was well accepted not to be an appropriate ground for revoking a MAC.
The appellant could only point to a mere difference of opinion between the MA and Dr Bentivoglio, which was not sufficient to establish error.The respondent submitted that there had been no allegation that the MA had erred in the manner in that he examined Ms Burfitt or that he had omitted to take into account material that was available to support a DRE II finding.
Discussion
Table 15-3 sets out the criteria for rating impairment due to lumbar spine injury.[13] A DRE I category does not attract any WPI entitlement. It provides:
“No significant clinical findings, no observed muscle guarding or spasm, no documentable neurological impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures.”
[13] AMA 5 page 384.
A DRE II category attracts a baseline WPI percentage of 5%, with provision for up to a further 3% to be given according to the restrictions assessed for the activities of daily living. The criteria required are relevantly:
“Clinical history and examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or non verifiable radicular complaints of radicular pain defined as complaints of radicular pain without objective findings; no alteration of structural integrity and no significant radiculopathy.”
We were referred to comments made in Ferguson to the effect that the pre-eminence of the clinical observations cannot be understated. However, those comments were made in the context of the assessment of a psychological injury and should not be understood to have more general application, although of course clinical judgement is an important part of an assessment by an MA.
In a case such as this, however, it is not simply the clinical observations that are important in cases involving physical injury. Both the Guides and AMA5 require there to be present identifiable criteria which establish the level of the various entitlements.
We are grateful for the industry shown by the respondent in its reference to various authorities. As can be seen from their dates, they are now recognised authority for the establishment of a demonstrable error, and the principles are tolerably well known.
We agree with the respondent that an MA is not bound by the opinions of other medical practitioners, but is required to form his own opinion based on his clinical findings, experience and training.
However there is an obligation on an MA, as much as there is on an Appeal Panel, to give reasons[14], and their extent depends upon the circumstances of each case. In this case both medico-legal experts have given a unanimous view that Ms Burfitt’s impairment should be assessed as DRE II, whilst the MA has found a lesser impairment of DRE I. There is accordingly a necessity to explain this divergence.
[14] See Jones v Registrar WCC [2010] NSWSC 481 at [34].
The misstatement by the MA that Dr Bentivoglio had found asymmetry of motion as being the basis for his assessment we find to be a relevant error. As was indicated by the appellant, the true basis for the distinction between the two assessments was the significance of the reported symptoms in the toes. The MA recorded the complaints from Ms Burfitt as involving all the toes.
Dr Porteous and Dr Bentivoglio were more specific. When Dr Porteous examined Ms Burfitt on 19 December 2019 he, like Dr Bentivoglio on 2 March 2020, obtained a history of numbness in the right toe. Dr Porteous said:[15]
“She reports chronic lumbar back pain rated 5/10 to 8/10 increasing with prolonged sitting, bending and with lifting. She reports constant numbness in the right toe since the last operation.”
[15] Appeal papers page 53.
We note that the clinical records of Ms Burfitt’s GP, Dr Robert Yap, also recorded complaints of numbness restricted to the right great toe.[16]
[16] Appeal papers page 227 – 17 February 2018The medical experts on the Panel would observe that numbness in the great toes can be an indication of involvement of the L5 dermatome, but we would also note that there is no dermatomal pattern that would result in complaints of symptoms in all the toes. That complaint could indicate a peripheral neuropathy, which would not be related to the injury to the lumbar spine.
The Medical Panel was persuaded that a re-examination should be undertaken. The MA made a demonstrable error in wrongly stating that Dr Bentivoglio found an asymmetrical range of motion for the back, and the MA accordingly did not adequately explain his reasons for finding a DRE I rating.
We note the reference to the involvement of Dr Neil Griffith, Neurologist in Ms Burfitt’s management. No material was lodged from Dr Griffith, and we accordingly called for his report(s), as they were relevant to the question of peripheral neuropathy.
Dr Burns’ report follows:
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: M1-4822/20 Appellant: Susan BURFITT Respondent: Secretary, Department of Education Date of Determination:
Examination Conducted By: Dr Mark Burns Date of Examination: 12 April 2021
1. The workers medical history, where it differs from previous records.
Ms Burfitt confirmed the medical history recorded by Dr Ian Meakin, Medical Assessor dated 4 November 2020.
2. Additional history since the original Medical Assessment Certificate was performed.
Ms Burfitt clarified the development of numbness and tingling in her feet following the right ankle injury in 2010 and her subsequent development of low back pain. She was uncertain about when the numbness and tingling commenced but did remember that it was initially in her right great toe. This was consistent with the history obtained by Dr Porteous recorded on 11 December 2019 (She reports constant numbness in the right toe since the last operation).
Subsequently she also commenced having numbness in her left great toe, as was recorded by Dr Bentivoglio on 2 March 2020 (She has also noticed numbness present involving the great toes of both feet).
She reported that the numbness has now spread to all toes of both feet and is now associated with a burning sensation (consistent with her GP’s notes). With this deterioration her Lyrica has recently been increased. She was referred to Dr Neil Griffith for Nerve Conduction Studies performed on 1 April 2020. Dr Griffith’s report noted a diagnosis of mild sensorimotor peripheral neuropathy.
She has had orthotics made for each foot by the Podiatrist with little if any change in symptoms.
Current Symptoms
She reported ongoing pain and discomfort in her left ankle, especially on walking and prolonged weight bearing.
She reported pain in the midline and left side of her lumbar spine which can occasionally radiate across the back. The pain is constant but varies in intensity. The pain radiates into both hips, the left more than the right. It does not radiate into either leg. The hip pain is only present on certain activities.Numbness was reported in both feet from the dorsum of the foot to all toes. There is no numbness in either heel.
Current Treatment
She continues to attend Dr Yap, her GP as required. She continues to attend physiotherapy for both her left ankle and lumbar spine.
She is taking Lyrica 25mgs twice per day, multi-vitamins, and an antidepressant.3. Findings on clinical examination
Ms Burfitt was 160cm tall and weighed 78kgs. She walked with a slightly antalgic gait favouring her left leg.
Lumbar Spine
Mild tenderness was noted in the midline and over the right sacro-iliac joint. There was no muscle spasm or muscle guarding. Flexion and extension were 2/3 predicted and symmetrical. Lateral flexion to the right was ½ predicted but 2/3 predicted to the left. At the end of movement to the right she noted discomfort on the left side. This movement was repeated and noted to be consistent.Straight leg raising was 60° on both sides (symmetrical) with a negative sciatic stretch test. Neurological examination revealed normal power, tone, and reflexes in both legs. Sensation was decreased in the dorsum of both feet and in all toes of both feet. It was associated with a reported burning sensation.
4. Results of any additional investigations since the original Medical Assessment Certificate
No new investigations were performed but the NCS report of Dr Griffith dated 1 April 2020 was supplied.
Signed: Dr Mark Burns
Date: 16 April 2021
The Panel adopts the report of Dr Burns.
Ms Burfitt’s history and examination is consistent with the development of a bilateral sensorimotor peripheral neuropathy. This confirms the findings of the MA that the imaging studies are not consistent with the sensory findings.
However, on examination Ms Burfitt did have lumbar spine tenderness as well as dysmetria on lateral flexion (confirmed several times). As such her lumbar spine should be assessed as DRE II 5%. We note that the MA found that Ms Burfitt’s limitations of daily living was as a result of her left ankle condition, but we are satisfied that her back condition also contributes to her restrictions, as she described in her statement of 5 May 2020.[17] She is unable to participate in physical activities, and requires assistance in her day to day activities. Whilst she continues to be employed, her workload has decreased. Pursuant to Chapter 4.35 of the Guides a further 2% should be added for such limitations.
[17] Appeal papers page 247.
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.
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 Ian Meakin 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) |
| Left lower extremity | 20 October 2010 | Chapter 3, Pages 16-25 | Table 17.11 to 17.12 AMA 5 and Table AMA 5 | 6% | N/A | 6% |
| Scarring | 20 October 2010 | TEMSKI Scale | TEMSKI Scale | 1% | N/A | 1% |
| Lumbar spine | 20 October 2010 | Chapter 4, Pages 26-33 | Item 4.27 of the Guides Table 15.5 AMA 5 | 7% | N/A | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
John Wynyard
Member
Dr Mark Burns
Medical Assessor
Dr Brian Noll
Medical Assessor
page 238 – 28 October 2019
page 239 – 29 November 2019
page 239 – 3 January 2020.
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