Caringbah Steel Pty Ltd v Coy
[2021] NSWPICMP 167
•14 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Caringbah Steel Pty Ltd v Coy [2021] NSWPICMP 167 |
| APPELLANT: | Caringbah Steel Pty Ltd |
| RESPONDENT: | Stephen Eric Coy (Deceased) |
| APPEAL PANEL: | Member Brett Batchelor Dr John F W Garvey Dr John Dixon-Hughes |
| DATE OF DECISION: | 14 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant employer claims that the Medical Assessor (MA) assessed respondent worker’s undisputed right hernia injury, in part, by reference to restriction in movement of the right hip claimed to have been caused by scarring from surgery; the digestive system (hernia) was the only body system/part referred for assessment, not the right upper extremity (hip); finding that the MA had assessed a body system/part not referred to him, and that this constituted a demonstrable error; Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW), State of New South Wales v Bishop and O’Callaghan v World Energy Corp Ltd referred to; Held - on assessment of the medical evidence, and without the benefit of re-examination of the respondent worker as he had passed away before such re-examination could take place, the Medical Appeal Panel found that the assessment of the digestive system (hernia) of the MA was correct; Drosd v Workers Compensation Nominal Insurer and Roads and Maritime Services v Wilson referred to; Medical Assessment Certificate (MAC) revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 March 2021 Caringbah Steel Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil A Berry, an Approved Medical Specialist (AMS), but since 1 March 2021 referred to as, and referred to herein as, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 February 2021.
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,
· 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, 4th ed re-issued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
On 11 November 2010 Stephen Eric Coy (the respondent/Mr Coy), was unloading an oxy bottle from a truck in the course of his employment by the appellant employer, Caringbah Steel Pty Ltd. It weighed approximately 60-70 kg, and as Mr Coy unloaded the bottle, he experienced sudden severe pain in his right groin. The following day he reported the matter to his general practitioner who diagnosed a hernia and referred him to Dr Francis Chu, general surgeon, who carried an open repair of the right inguinal hernia on 11 August 2011.
In the post operative period the pain experienced by Mr Coy was worse and he was found to have a very large abscess collection which was drained. He was readmitted to hospital and treated with antibiotics. The discharge continued for a period of six weeks after leaving hospital. Thereafter the pain never settled and Mr Coy was left with pain and discomfort shooting across his abdomen to the left side, down the right thigh and particularly severe pain in the left groin.
Mr Coy commenced proceedings in the Workers Compensation Commission for lump sum compensation by way of Application to Resolve a Dispute registered on 3 August 2018. Reliance was placed upon the report and assessment of Dr Anthony Greenberg dated 27 April 2018, who assessed 20% whole person impairment (WPI) in respect of the injury on 11 November 2010 (digestive system (hernia)).
The matter was remitted to the Registrar for referral to an AMS to assess the digestive system and the respondent was examined by Dr Neil A Berry on 11 September 2018.
Dr Berry issued a MAC on 14 September 2018, containing an assessment of 10% WPI (digestive system).
On 12 October 2018, the respondent lodged an application to appeal the decision of Dr Berry on the grounds the assessment was made on the basis of incorrect criteria and that the MAC contained a demonstrable error.
A Delegate of the Registrar issued a decision dated 20 November 2018, containing a finding that he was not satisfied that a ground of appeal was made out, and the application was rejected.
A Certificate of Determination was subsequently issued on 7 January 2019, in which the Commission determined:
(a) the respondent worker suffers 10% permanent impairment resulting from the injury on 11 November 2010, and
(b) the respondent worker has no entitlement to lump sum compensation resulting from the injury on 11 November 2010.
The appellant subsequently came under the care of Dr Andrew Bean, general surgeon, on 16 April 2016. On clinical examination Dr Bean found no hernia on the left and no clinical recurrence on the right. He said that historically Mr Coy seemed to have neuralgia following hernia repair which was a very difficult situation to treat. The doctor also said that surgical exploration might help, however there was no possibility of being able to guarantee any improvement of symptoms, and that it was possible they would worsen.
Dr Bean reviewed Mr Coy on 24 May 2019 with an MRI and ultrasound scans. Surgery was again discussed and a request made to the GIO to accept liability therefor.
Dr Bean carried out further surgery on 1 July 2019 in which he excised the old scar, excised part of the mesh and scar tissue, performed neurolysis and repaired recurrent right inguinal hernia.
On final review of Mr Coy on 29 November 2019 Dr Bean noted concern regarding a sensation of swelling and discomfort in the right groin which seemed to be different from previously. It had been occurring over the previous fortnight. Dr Bean found no evidence of recurrent hernia, and tenderness in the inguinal region as previously. The doctor did not know the cause of Mr Coy’s current problem and said that although it was still relatively early, it was unlikely to be any improvement in symptoms. He prescribed Targin.
On 23 September 2020 the solicitor for the respondent served a request for reconsideration, providing an updated opinion of independent medical examiner, Dr Anthony Greenberg, who assessed 22% WPI (digestive system). The respondent requested the MAC and the Certificate of Determination should be reconsidered pursuant to ss 329 (1A) and s 350 (3) of the 1998 Act.
The matter was listed for arbitration before Arbitrator Jane Peacock on 17 December 2020 who issued a Certificate of Determination with attached Statement of Reasons dated 19 January 2021.
Arbitrator Peacock revoked the Certificate of Determination dated 7 January 2019 and remitted the matter to the Registrar for referral back to the AMS, Dr Berry, pursuant to s 329 of the 1998 Act for reconsideration of the assessment of the degree of permanent impairment, if any, to the digestive system as a result of the injury on 11 November 2010.
The AMS referral dated 20 January 2021 detailed the body part/s referred as “Digestive System (Hernia)”.
The respondent was subsequently reassessed by Dr Berry on 9 February 2021, following which he issued a MAC dated 17 February 2021 containing an assessment of 19% WPI (10% right inguinal hernia and 10% right lower extremity (hip)). This is the MAC that is the subject of the current appeal.
PRELIMINARY REVIEW
On 7 June 2021 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 although neither the appellant nor the respondent requested a further examination by a Medical Assessor who is a member of the Appeal Panel, the Panel was of the view that there was an error in the MAC of Dr Berry and, in view of the complex medical history since the date of injury and the significant ongoing pain that Mr Coy was experiencing, a further examination would assist it in determining the appeal.
The Appeal Panel issued a Preliminary Review on 7 June 2021 determining that Mr Coy should submit himself for a clinical examination by Panel member Dr Garvey on 5 July 2021. This examination did not take place due to restrictions on such examinations imposed by the COVID 19 pandemic, and it was re-scheduled for 16 August 2021.
On 3 August 2021 the solicitor for the respondent advised the Commission that Mr Coy had passed away.
On 9 August 2021 the Appeal Panel issued a Further Preliminary Review in which it was noted that the parties consented to the review of the original medical assessment on the basis of the papers already provided and containing the following Notation and Directions:
“NOTATION
The Panel has determined that the following medical record, not already before it, should be produced:
The histopathology report of the operation performed by Dr Andrew Bean on 1 July 2019 (see ‘Operation Report’ dated 1 July 2019 at p 325 of the Appeal Papers).
DIRECTIONS
1. By 23 August 2021, the appellant is directed to produce pursuant to section 324(3) of the 1998 Act the histopathology report of the operation performed by Dr Andrew Bean on July 1, 2019.
2. If the appellant is not in possession of this document, he is to advise the Commission as soon as possible and no later than 16 August 2021.”
On 16 August 2021 the solicitor for the appellant advised the Commission that, upon review of the claim file in the matter, she had been unable to locate the histopathology report referred to in the Directions.
With the consent of the parties Dr Garvey was able to obtain a copy of the histopathology report referred to in the Directions without further action on the part of the Commission. It has been considered by the Panel along with the other papers already provided.
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. The Panel also has before it the histology report of the specimen showing myxoid degeneration of an abdominal nerve removed at the operation performed by Dr Andrew Bean on July 1, 2019. The report, on the specimen received on 1 July 2019 (omitting photograph), is as follows:
“Specimen(s) Received:
Nerve, abdominal area right side
Clinical History:Neuralgia right groin. Spec tissue ? nerve. Post herniorrhaphy neuralgia
FINAL SUMMARY:
NERVE, ABDOMINAL AREA RIGHT SIDE: FOCAL MYXOID DEGENERATION
Macroscopic Description:
The specimen consists of an Irregular piece of elongated soft tan tissue measuring 35 x 1Ox 7mm. Blocking details; A, B-tip of both ends; C-E-central transverse sections. All embedded. (J2)
Microscopic Description:
Sections show adipose tissue and fibrous tissue, containing small vessels and occasional peripheral nerves showing focal myxoid degeneration (see photograph). This change has been described following trauma to nerves, followed by neuralgia, There ls no evidence of malignancy.”
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.
Appellant
In summary, the appellant submits that the Medical Assessor, Dr Berry, has erred in assessing the right lower extremity (hip), and that the right hip has been included in the assessment in contravention of the limitations imposed by s 325 of the 1998 Act. That section provides, inter alia, that “the medical assessor to whom a medical dispute is referred is to give a medical certificate (a ‘medical certificate’) as to the matter referred for assessment.” (emphasis in submissions)
The appellant submits that the right lower extremity (hip) was not referred to the Medical Assessor for assessment, with the referral confined to the digestive system (hernia).
The appellant notes that the Medical Assessor reasoned that he had assessed the respondent worker’s right hip on the basis that the worker had since the last assessment undergone further surgery and reported he was left with restriction of right hip movements as a result of the scarring and pain in the right groin.
The appellant submits that there has been no liability determination by an Arbitrator or Member, nor acceptance by the appellant employer, that the respondent had a compensable right hip condition. In accordance with the decision of the Court of Appeal in State of New South Wales v Bishop[1], the question of causation in relation to a consequential condition is a question of fact for the Arbitrator/Member and was not a matter for the Medical Assessor to decide.
[1] [2014] NSWCA 354 (Bishop).
The appellant also relies upon the finding of the Supreme Court of New South Wales in Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW)[2] in which the AMS had addressed matters other than those referred to him for assessment, and the Court was satisfied that the MAC contained a demonstrable error.
[2] [2006] NSWSC 322 (Aircons).
The appellant submits that the decisions in Bishop and Aircons were extensively explored in Thuy Hang Pham v PPC Moulding Services Pty Ltd[3], and refers to the facts of that case and the determination of the Appeal Panel thereon.
[3] [2019] NSWWCCMA 92.
The appellant submits that, having regard to the legislation and case law referred to, it is clearly evident that the assessment of the Medical Assessor contains a demonstrable error and was made on the basis of incorrect criteria. Dr Berry erred in assessing the right hip when it was not referred for assessment and there was no liability determination in favour of the respondent in respect of the right hip.
The appellant submits that reassessment is not required in the circumstances, and that the assessment of Dr Berry should be revised to 10% WPI in respect of the digestive system only.
Respondent
In reply, the respondent disagrees with the appellant’s submission that the right hip is a separate condition. He submits that the assessment of the Medical Assessor of impairment of the right hip is in reality an assessment of the limitations caused by the second hernia repair and that the only way to assess the limitation caused by the scarring that occurred in the operation was to assess the restriction in the right hip. The principles of assessment are set out at [6.1a] on p 118 of AMS 5, the relevant part of which according to the respondent, is quoted.
The respondent submits that while the Medical Assessor has used Chapter 17 of AMA 5 (range of movement) to assess the right hip, he has given effect to [6.1a] of AMA 5 in picking a method of assessment which best suits the disability caused by the hernia operation and hence the hernia. This is especially so, according to the respondent, when reference is made to the table on p 136 of AMA 5 (Table 6-9) where all the classes of criteria for rating permanent impairment due to herniation involve subjective factors which must be assessed to come to a conclusion on permanent impairment. The respondent submits that the best fit classification is Class 2, “frequent discomfort, precluding heavy lifting but not hampering some activities of daily living.” This is consistent with only the right hip being the area of the body affected by the hernia. A Class 2 classification on p 136 would give a range of assessment of 10-19%.
The respondent submits that it is irrelevant that no referral was made of the right hip, as it is not a consequential condition but a method of assessing the damage to the area around the hernia caused by the scarring from the second operation.
The respondent submits that no determination is needed, that he has a compensable right hip condition, and that the case law and propositions referred to therein are not relevant to the current appeal.
As noted at [24] above, the respondent submits that no further examination by a member of the Appeal Panel is required.
The Appeal Panel notes that with the death of Mr Coy, there is no alternative to the appeal proceeding in the absence of further examination of him by a member pf 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. An Appeal Panel is limited to determining error as alleged by the appellant but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. Relevant case law includes Siddik v Workcover Authority of NSW[4] and NSW Police Force v Registrarof the Workers Compensation Commission of New South Wales[5] .
[4] [2008] NSWCA 116.
[5] [2013] NSWCA 1792.
For an appeal to be successful pursuant to s 327(3)(d) of the 1998 Act, that is the MAC contains a demonstrable error, there must be an error of fact or law which is readily apparent on the face of the MAC (NSW Police Force v Fleming[6]; Merza v Registrar of the Workers Compensation Commission[7]).
[6] [2010] NSWSC 216.
[7] [2006] NSWSC 939.
In Campbelltown City Council v Vegan[8] 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.
[8] [2006] NSWCA 284
Section 325(1) of the 1998 Act is as follows:
“(1) The medical assessor to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.”
Pursuant to the Certificate of Determination with attached Statement of Reasons dated 19 January 2021 issued by Arbitrator Peacock on 17 December 2020 the body part referred back to (the then) AMS, Dr Berry, was “Digestive System (Hernia)”.
Dr Berry had previously examined the respondent on 11 September 2018 and issued a MAC dated 14 September 2018[9]. The body part referred for assessment at that time was “Digestive System”. On examination, Dr Berry noted active movements of the right hip were normal and did not cause pain. In accordance with [16.3] in Chapter 16 on p 78 of the Guidelines and Table 5.1 on p 33 thereof, Dr Berry assessed 5% WPI for dysaesthesia in the ilio-lingual nerve and the same assessment for the genitofemoral nerve. Using the Combined Values Chart on p 604 of AMA 5, a total WPI of 10% was obtained.
[9] Appeal papers p 241.
In the MAC dated 17 February 2021[10] Dr Berry records his findings on physical examination at [5] as follows:
“Mr Coy presented as an obese man who was 181cm in height and 140kgs in weight.
With the patient standing, he was noted to have a well healed scar in the right groin. There was no deformity of the abdominal wall and no deformity of the penis and testicles. The patient was extremely sensitive to the lightest touch in the lateral aspect of the right scrotum and also on the inner aspect of the right thigh.
Mr Coy told me that there was restriction in his right hip movements because of the padded feeling in the right groin and he was noted to have flexion only to 70 degrees. Extension was normal. Internal and external rotation was reduced to 10 degrees. Abduction and adduction were normal. There was sensory disturbance on the lateral aspect of the right thigh. There were no other abnormalities in either the right or left leg.
No other physical examination was conducted and clinically there was no evidence of a recurrent hernia or an abdominal wall defect.”
[10] Appeal papers p 17.
At [7] of the MAC Dr Berry notes of the respondent:
“He has undergone further surgery which repaired a recurrent hernia and he is now left with restriction of right hip movements as a result of the scarring and pain in the right groin.”
At [10.a.] of the MAC Dr Berry records his opinion and assessment of WPI as follows:
“Mr Coy has a history of sustaining an injury to the right groin. He was subsequently found to have a palpable lump in the groin confirming the presence of a hernia and underwent surgery. Unfortunately, he was left with genitofemoral nerve and ilioinguinal nerve entrapment and I assessed him appropriately on 11 September 2018. Since that time, despite surgery, he still has the same defects in the right groin and in addition to that, he now has significant scarring which has impacted on his right hip movements and he should be assessed for his continuing nerve impairment.”
Dr Berry assessed the right inguinal hernia in the same way as he had done in his earlier MAC dated 11 September 2018, referred to above at [52].
Dr Berry assessed Mr Coy’s right lower extremity (hip) in accordance with Chapter 17, Table 17.9 on p 537 of AMA 5 (“Hip Motion Impairment”) and found 10% WPI for the interference in right hip function. Using the Combined Values Chart, this 10% WPI when combined with the 10% WPI assessed for the right inguinal hernia resulted in a total WPI of 19%.
The right lower extremity (hip) is a different body system to the digestive system (hernia). The appellant correctly submits that the right lower extremity (hip) was not referred to Dr Berry for assessment (on 9 February 2021), with the referral confined to the digestive system (hernia). The respondent submits that the right hip is not a separate condition, and that Dr Berry’s assessment of impairment in the right hip is in reality an assessment of the limitations caused by the scarring that occurred in the second operation, and that the only way to assess that limitation was to assess the restriction in the right hip. Dr Berry says this in the excerpt from the MAC referred to above at [55]. However, in doing so, Dr Berry is making a finding that the limitation in the right hip was caused by the scarring from the second operation. That is a condition consequent upon surgery for the hernia injury suffered on 11 November 2010. There is no issue between the parties as to this injury or the reasonable necessity for the two lots of surgery undergone by Mr Coy as a result of that injury. However, the appellant does not concede, nor has there been a finding by the Commission that, the limitation on movement of the right hip found by Dr Berry was consequent upon scarring from the second operation.
The Appeal Panel accepts the appellant’s submission that there has been no liability determination by an Arbitrator or Member of the Commission that the respondent had a compensable right hip condition as a result of the injury sustained by him on 11 November 2010.
At [18] in Aircons Malpass AsJ said:
“By way of introduction to dealing with the contentions of the parties, it may be helpful to observe that it is a matter of importance that the medical dispute referral identify with precision the matters that are referred for assessment. A failure to do so may infect the whole assessment process.”
At [21] his Honour said with reference to the facts in that case:
“I am satisfied that the medical assessment certificate given by Dr Fry contains demonstrable error. He has addressed matters other than those referred to him for assessment. He has not given a certificate as to the matters referred for assessment. This has seen him venture outside that area and one of the consequences is that there is overlapping with the assessment made by Dr Bodel. The supplementary certificate given by Dr Bodel was founded on the correctness of the certificates that both he and Dr Fry had given. Accordingly, the supplementary certificate is infected with the error contained in the earlier certificate of Dr Fry.”
In O’Callaghan v Energy World Corp Ltd[11] Roche DP said at [84]:
“I do not accept that Aircons does not relate to the circumstances contemplated by grounds (a) and (b). Once it is accepted, as it must be, that a s 327 appeal is ‘against a medical assessment’, Aircons is directly relevant and binding. As held in that case, an AMS can only give a certificate as to the matters referred for assessment. To say that the Medical Appeal Panel is not restricted to the matters in the original referral to the AMS ignores the fact that a matter does not get to a Medical Appeal Panel unless and until the Registrar is satisfied that, on the face of the application and any submissions made in support of it, at least one of the grounds for appeal specified in subsection (3) has been made out.”
[11] [2016] NSWWCCPD 1.
In Bishop, Basten JA stated at [20] the “question of causation was purely a question of fact for the arbitrator.” Emmett JA, with whom Gleeson JA agreed,[12] accepted that the causal question in that case between an earlier undisputed back injury and a subsequent fall, claimed by the worker to be consequent upon the back injury, was a matter for the Arbitrator.
[12] Bishop at [84]-[85] and [93].
This Appeal Panel finds that the Medical Assessor in this case, Dr Berry, has addressed a matter other than that referred to him for assessment. That is, the restriction in movement of the right hip which he found to be a consequence of the scarring caused by the second operation.
There is a further problem with the respondent’s submissions on this issue. The respondent submits that Dr Berry, in assessing impairment in the right hip, is in reality making an assessment of the limitations caused by the second hernia repair, and that the only way to do this was to assess the limitations caused by the scarring. The respondent then goes on to submit that Dr Berry has given effect to [6.1a] on p 118 of AMA 5 (under [6.1] “Principles of Assessment”) in picking a method of assessment which best suits the disability caused by the hernia operation and hence the hernia. The first paragraph of [6.1a] in full is as follows:
“Some impairment classes refer to symptoms that limit the ability to perform daily activities. When this information is subjective and possible to misinterpret, it should not serve as the sole criterion for assigning impairment ratings. Rather the examiner should obtain objective data about the limitation’s extent and integrate those findings with the subjective data to estimate the degree of permanent impairment.” (emphasis added)
The words emphasised in the abovementioned quotation from the first paragraph [6.1a] were omitted from the appellant’s submissions. More importantly, the respondent seems to be submitting that, on the basis of this principle, he should have been assessed by Dr Berry pursuant to Class 2 of Table 6-9 on p 136 of AMA 5 rather than by reference to limitation of the range of motion in the right hip. This would give a range of assessment of 10%-19% WPI.
Class 2 of Table 6-9 requires the following findings:
(a) Palpable defect in supporting structures of the abdominal wall
and
(b) frequent or persistent protrusion at site of the defect with increased abdominal pressure; manually reducible
or
(c) frequent discomfort, precluding heavy lifting but not hampering some activities of daily living.
The findings of Dr Berry when he examined Mr Coy on 9 February 2021 and recorded them at [5] in the MAC dated 17 February 2021 are set out at [53] above. He found no deformity of the abdominal wall and no deformity of the penis and testicles. In his earlier MAC dated 14 September 2018 following examination of the Mr Coy on 11 September 2018[13], Dr Berry recorded at [5] “There was no obvious deformity of either groin, nor of the scrotum and testicles.”
[13] Appeal papers p 241.
It is therefore apparent that, accepting that Mr Coy experienced frequent discomfort, precluding heavy lifting but not hampering some activities of daily living, only one of the required two criteria are satisfied to enable a Class 2 assessment to be made, or in fact, a Class 1 or 3 assessment. Dr Berry referred to this when commenting upon the report of Dr Anthony Greenberg dated 27 April 2018 at [10.c.] in the MAC dated 17 February 2021[14].
[14] Appeal papers p 22.
A second problem with the respondent’s submissions is what is stated at [1.1] on p 3 of the Guidelines, namely:
“The Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) in most cases. Where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.”
Chapter 16 on p 78 of the Guidelines contains a statement that “AMA 5 Chapter 6 (p 117) applies to the management of permanent impairment of the digestive system”, and “The Guidelines take precedence over AMA 5.” Under “Introduction” on p 78, the Guidelines then set out the procedure for assessing the digestive system having regard to Chapter 6 of AMA 5. In his Reasons for Assessment at [10.a.] of the MAC dated 17 February 2021 Dr Berry sets out his assessment of the right inguinal hernia in accordance with the Guidelines and AMA 5. He says that, in accordance with Table 5.1 on p 33 of the Guidelines, dysaesthesia as a result of impairment in both the ilio-inguinal and the genitofemoral can be assessed. He assesses both nerves in terms of severe dysaesthesia at 5% WPI each which, using the Combined Values Chart, results in an impairment of 10% WPI. That assessment will be referred to hereunder.
For the foregoing reasons the Appeal Panel does not accept the respondent’s submissions that:
(a) it is irrelevant that no referral was made in respect of the right hip when the matter was referred to back to Dr Berry for assessment;
(b) the condition in the right hip is not a condition consequent upon injury to the digestive system (hernia) on 11 November 2010;
(c) the hernia injury should have been assessed either as was done by Dr Berry, that is by reference to the restriction of right hip movements as a result of the scarring and pain in the right groin, or alternatively
(d) the hernia injury should have been assessed by reference to Class 2 of Table 6-9 on p 136 of AMA 5.
The Appeal Panel finds a demonstrable error in the MAC dated 17 February 2021 in Dr Berry’s assessment of the respondent by reference to his finding of restriction of right hip movements as a result of the scarring and pain in the right groin when, the right lower extremity (hip) was not referred to him for assessment.
Assessment of right inguinal hernia
In Drosd v Workers Compensation Nominal Insurer[15] Garling J stated at [58]-[59]:
“[58] Section 328 of the 1998 Act provides that, after undertaking its review, the Appeal Panel:
‘(5) ... may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned.’
[59] Having found error in the MAC issued by the AMS, the Appeal Panel revoked the MAC and determined for itself that the plaintiff’s whole person impairment relating to the left lower extremity was 10%. It did so in a shorthand way. That shorthand way was to adopt the assessment of the AMS because no party had challenged it. This shorthand way, whilst arguably permissible, did not relieve the Appeal Panel from its statutory obligation to conduct its assessment according to law.”
[15] [2016] NSWSC 1053 (Drosd).
Drosd was applied by Fagan J in Roads and Maritime Services v Wilson who, with reference to a MAC issued by Dr Anderson in that case, stated that:
“Once the Appeal Panel had determined that Dr Anderson’s Medical Assessment Certificate should be revoked it was incumbent upon them, as a matter of law, to apply the WorkCover Guides fully in arriving at a fresh assessment and issuing a new certificate.”[16]
[16] [2016] NSWSC 1499 at [26].
Neither the appellant nor the respondent has challenged the assessment of Dr Berry in respect of his assessment of the right inguinal hernia injury, but the Panel must nevertheless make its own assessment of such injury. In order to assist in this endeavour, it determined that Mr Coy should be re-examined by a medical member of the Panel. When this was not possible, it sought and obtained the histopathology report produced following the surgery carried out by Dr Bean on 1 July 2019 which is now in evidence. That report, indicating that the specimen was received on 1 July 2019, does not assist in determining which nerve had been removed. It simply indicates:
“Specimen(s) Received:
Nerve, abdominal area right side”
The histopathology report indicated that there was a pathological process (myxoid degeneration) caused by the mesh which was partly removed by Dr Bean on 1 July 2019 and the affected nerve. The findings of Dr Bean at that surgery were:
“There was a very thick scar in the subcutaneous tissue and on the surface of the external oblique aponeurosis, There was a recurrent indirect hernia consisting principally of extraperitoneal fat. There was considerable scar formation around the old mesh. The ilioinguinal and genital branch of the genitofemoral nerve were identified but it could not be clearly ascertained whether they were entrapped in scar tissue. The iliohypogastic nerve was not identified.”
Part of the procedure details recorded by Dr Bean were:
“The recurrent hernia was excised with a 3/0 Vicryl stitch tie to the fat. The ilioinguinal and genital branch of the genitofemoral nerves were infiltrated with local anaesthetic and then divided in muscle at the deep ring.”[17]
[17] Appeal papers p 325.
When Dr Chu operated on Mr Coy on 11 August 2011, he recorded that the ilio-inguinal nerve had been “…sacrificed due to difficult operation.”[18]
[18] Appeal papers p 52.
Dr Peter J Brimage, neurologist, examined Mr Coy on 24 November 2011 and produced a report of that date.[19] On examination he established
“…that there was an area of anaesthesia that involved the right inguinal region extending down over the scrotum and pubic area at least 15 cm down the right inner upper thigh. It also extended up over the abdomen about two thirds of the way from the inguinal ligament to the umbilicus, just affecting the right side.”
Dr Brimage’s assessment was that he doubted that the surgeon had made a mistake and tied off or inadvertently damaged the wrong nerve. He understood that the ilio-inguinal nerve was routinely divided to enable access. He did not record which nerve was causing numbness and anaesthesia.
[19] Appeal papers p 54.
Dr Damodaran Kumar, general surgeon, examined Mr Coy on 12 August 2016 and produced a report dated 5 September 2016[20] in which he found “…some mild hypoesthesia in the upper right medial thigh and the scrotum in the central area of distribution of the right ilio-inguinal nerve.” That was the nerve that was believed to have been removed by Dr Chu on 11 August 2011, but in all likelihood was the iliohypogastric nerve.
[20] Appeal papers p 186.
The medical members of the Panel are therefore left in the position that they are uncertain as to which nerves have been removed. It is possible there was a neuroma of the excised ilio-inguinal nerve causing pain in the distribution of that nerve, which could be assessed as resulting in 5% WPI. This should be combined with 5% WPI for neuralgia of the genital branch of the genitofemoral nerve which is the only possible nerve remaining intact.
The medical members of the Panel believe that if re-examination of Mr Coy had taken place, an explanation of the causation of the anaesthesia suffered by him would have been forthcoming.
Following his examination of the respondent on 9 February 2021, Dr Berry expressed the opinion that both the ilio-inguinal and genitofemoral nerves should be assessed in terms of severe dysaesthesia and that that a finding of a 5% WPI made in respect of each nerve made. In accordance with the Combined Values Chart, the respondent therefore suffered 10% WPI.
The Medical Panel therefore finds on the evidence available to it, and without adopting “the shorthand way” referred to by Garling J in Drosd of adopting the assessment of the Medical Assessor because no party has challenged it, that it agrees with the assessment of Dr Berry of 5% WPI in respect of both the olio-inguinal and genitofemoral nerves.
The determination of the Appeal Panel is that the respondent suffered 10% WPI as a result of injury to the digestive system, in the form of right inguinal hernia, on 11 November 2010.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 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
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 Neil A Berry 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) |
| Right Inguinal Hernia | 11 November 2010 | Chapter 16 Page 78 Paragraph 16.3 & Chapter 5 Table 5.1 Page 33 | 10 | 0 | 10 | |
| 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
Brett Batchelor
Member
Dr John Garvey
Medical Assessor
Dr John Dixon-Hughes
Medical Assessor
14 September 2021
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