Carroll v Workers Compensation Nominal Insurer (iCare) & Ors
[2024] NSWPICMP 5
•8 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Carroll v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPICMP 5 |
| APPELLANT: | Cody Carroll |
| FIRST RESPONDENT: | N Collett and R Larkin trading as Allpride Interiors |
| SECOND RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| APPEAL PANEL | |
| MEMBER: | Jacqueline Snell |
| MEDICAL ASSESSOR: | Brian Stephenson |
| MEDICAL ASSESSOR: | Chris Oates |
| DATE OF DECISION: | 8 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant essentially submitted the Medical Assessor (MA)erred in failing to provide adequate reasoning as to “a finding or lack thereof of radiculopathy” in circumstances where there was complaint and clinical evidence of radiculopathy; the Appeal Panel accepted the MA failed to provide adequate reasoning for concluding the appellant “did not have appropriate features to diagnose continuing radiculopathy”; the appellant was re-examined and on re-examination the MA found the appellant suffered left S1 lumbar radiculopathy post-operatively; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 July 2023 the appellant, Cody Carroll (Mr Carroll) 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
7 July 2023.Mr Carroll relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, the ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations, and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Carroll made a claim for permanent impairment compensation in respect of alleged injury to his lumbar spine sustained in a fall on 14 May 2020 in the course of his employment with N Collett and R Larkin trading as Allpride Interiors (Allpride), which was disputed.
When Mr Carroll commenced proceedings in the Commission relevant to his claim, as Allpride was not insured at the date of alleged injury, the Workers Compensation Nominal Insurer (iCare) was appropriately joined to the proceedings.
When Mr Carroll’s claim came before the Commission on 3 April 2023 following preliminary conference on 23 January 2023, Mr Carroll’s claim proceeded to arbitration hearing. On
10 May 2023 the Commission issued written determination in which the Member presiding found Mr Carroll suffered an injury to his lumbar spine on 14 May 2020 in the course of his employment with Allpride and Mr Carroll’s claim was remitted to the President for referral to a Medical Assessor to determine the permanent impairment resulting from the injury. This has occurred and the MAC has issued.The Medical Assessor assessed 12% whole person impairment (WPI) including 2% for activities of daily living.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Medical Assessor erred by failing to provide adequate reasoning as to “a finding or lack thereof of radiculopathy” in circumstances where the Medical Assessor recorded Mr Carroll’s present symptoms to include “occasional pain in his lower back with occasional radiation down the left leg”, a medical examination that relevantly demonstrated “the right thigh was 1 cm greater in circumference than the left” and “sensation to pinprick was throughout the normal distribution, although was perceived more on the right side than on the left”, and acceptance that his assessment of WPI was lower than that provided by Dr Burrow in his report dated 16 May 2022 because Dr Burrow had identified continuing post-surgical radiculopathy. Against a backdrop of acceptance by the Medical Assessor that “before the surgical procedure, it looks as though there were radiculopathy features down the left leg”, Mr Carroll’s presenting symptoms at assessment of radiating pain down the left leg and the Medical Assessor’s findings on examination regarding sensation and a difference in thigh girth, the Medical Assessor merely states by way of explanation regarding “a finding or lack thereof of radiculopathy”:
“Although sensation was perceived more on the right side than on the left, he did not have appropriate features to diagnose continuing radiculopathy.”
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
Medical Assessor Oates of the Appeal Panel conducted an examination of Mr Carroll on 1 December 2023 and reported to the Appeal Panel. Medical Assessor Oates reported:
“…
Date of Injury: 14/05/2020
Details of who attended the Assessment
Mr Carroll was assessed unaccompanied by Appeal Panel Medical Assessor Oates on 01/12/2023 as arranged.
HISTORY
Mr Carroll confirmed the history as recorded by Medical Assessor Anderson.
He is having no current treatment.
He still has pain in the lower back with a stretching sensation down the posterolateral left lower extremity to the upper lateral calf and experiences pins and needles down the left leg to the left foot when sitting on the toilet and this settles down after he gets up and moves around.
There has been no previous or subsequent relevant injury or condition.
His general health is good, and he is on no regular medication.
At the time of the accident, he was 4th year apprentice plasterer and had a couple of months to go to finish his apprenticeship but was not able to get back to this occupation after the accident.
He then tried some horticulture work, but it was too heavy.
He started process work on a full-time hours basis as a casual employee about three months ago in a factory at the Central Coast, doing laser engraving of glassware. The work is a mix of sitting and standing. He sits at a computer to load the design onto the engraving machine and then stands to do the engraving.
His wife is expecting their second child in December 2023. He told me she works full-time. They have one daughter aged two. He doesn’t smoke or drink.
He hasn’t played sport since leaving school and enjoys computer-based pastimes as a hobby at home. He does not do heavy home chores on account of his back.
EXAMINATION
He is right hand dominant. He was of solid build with height 170cm and weight 93.2kg
Lumbar Spine
There was no guarding or muscle spasm. There was tenderness at L5/S1 area centrally and right and left lateral aspects. He walked without a limp. He could squat three-quarters with support and walk on the heels and toes.
Flexion was three-quarters of normal range of movement and extension, lateral flexion and rotation were all full range.
Neurology
The knee jerks were both brisk, as was the right ankle jerk. There was slight reduction of amplitude of the left ankle jerk, and this was consistent when tested in positions of both sitting on the couch and kneeling on a chair. Plantar responses were both flexor.
Power in the lower extremities was symmetrical, as was sensation to light touch and pin prick.
Supine straight leg raising showed a positive sciatic nerve stretch test on the left side and there was also a positive slump test on the left side, when sitting on the couch.
Thigh girth; right equals left equals 54cm at 10cm above the superior patellar pole. Leg girth; right equals left equals 41.5cm measured at 14cm below the inferior patellar pole at the site of maximal circumference.
OPINION
Left S1 lumbar radiculopathy exists post-operatively, as evidenced by reflex asymmetry on the side that would be expected with the concordant imaging of a left-sided L5/S1 disc protrusion, and there is a positive nerve stretch test on the left side.
PERMANENT IMPAIRMENT
Lumbar DRE III – 12% WPI, including a 2% loading for the effects on ADL AMA5 Ch15 T 15-3 p384.
Additional loading of 3% WPI to be combined from SIRA Guidelines T 4.2 p29, for spinal surgery with residual symptoms and radiculopathy so,
12% combined with 3% gives 15% WPI.”
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
Written submissions have been lodged by Mr Carroll and iCare. They are not repeated in full but have been considered by the Appeal Panel. Written submissions have not been lodged by Allpride.
In summary, and in submission prepared by his solicitor, Mr Ahn, Mr Carroll submits that the Medical Assessor erred by failing to diagnose the presence of continuing radiculopathy in circumstances where the Medical Assessor had noted complaint by Mr Carroll that he was experiencing “some ache in the lower back in the mid-line radiating towards the left”, and by failing to provide adequate reasoning as to “a finding or lack thereof or radiculopathy.” With reference to cls 4.27 and 4.28 of the Guidelines, Mr Carroll made specific complaint regarding perceived failure by the Medical Assessor to address radiculopathy:
(a) to test for muscle weakness, or in the alternative, to provide adequate reasoning to exclude the required criteria relevant to muscle weakness;
(b) to provide adequate reasoning to exclude a finding of sensory impairment in the assessment of radiculopathy;
(c) to test for positive nerve root tension, or in the alternative, to provide adequate reasoning to exclude the required criteria relevant to positive nerve root tension, and
(d) to provide adequate reasoning to exclude a finding of atrophy in the assessment of radiculopathy.
In reply, and in submission by their solicitor, Ms Turnbull, iCare in essence argues that while Mr Carroll submits that the presence of lower back pain radiating to the left is indicative radiculopathy may be present Mr Carroll has not provided any medical evidence to support such conclusion. iCare points out that while such findings were expressly noted by the Medical Assessor, the Medical Assessor subsequently concluded Mr Carroll did not have appropriate clinical features to diagnose continuing radiculopathy. In response to Mr Carroll’s specific complaint regarding perceived failure by the Medical Assessor to address radiculopathy, iCare argues:
(a) the mere fact the Medical Assessor did not record that there was no muscle wasting or nerve root tension in the MAC, does not constitute demonstrable error or suggest the Medical Assessor did not consider this in his assessment of
Mr Carroll;(b) although the Medical Assessor recorded sensation being perceived more on the right side than on the left, the Medical Assessor said of Mr Carroll “he did not have appropriate clinical features to diagnose continuing radiculopathy …” and in so concluding the Medical Assessor has provided sufficient details of his actual path of reasoning, which does not constitute demonstrable error, and
(c) although the Medical Assessor recorded the right thigh being 1cm greater in circumference than the left, as this alone does not satisfy the criteria outlined in cl 4.27 of the Guidelines, the Medical Assessor has made an assessment in line with the Guidelines, which does not constitute demonstrable error.
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.
MAC
The Medical Assessor recorded Mr Carroll sustained injury on 14 May 2020. The Medical Assessor recorded that Mr Carroll was standing on a scaffolding plank, which was a metre or so off the ground, when he tumbled off the end of the plank and landed “mostly in a sitting position” on the ground below. The Medical Assessor recorded that Mr Carroll’s fall “resulted in severe lower back pain with a tendency to radiate down the left leg.” The Medical Assessor noted that while medical management of Mr Carroll’s low back injury had initially been conservative, Mr Carroll ultimately came to micro-discectomy on 8 September 2020 under the care of Dr Coughlan, neurosurgeon, with “improvement.” The Medical Assessor noted Mr Carroll had been unable to return to his pre-injury role as an apprentice plasterer but was not currently receiving any treatment other than his own exercising, which included walking.
The Medical Assessor recorded Mr Carroll’s present symptoms:
“Occasional pain in his lower back with occasional radiation down the left leg.”
When recording his findings on physical examination of Mr Carroll, the Medical Assessor described Mr Carroll as “excessively overweight” and noted Mr Carroll was “cautiously trying to reduce it.” The Medical Assessor described Mr Carroll as not being in obvious discomfort. The Medical Assessor recorded:
“Back. There is some ache in the lower back in the mid-line radiating towards the left. There was a small mid-line surgical scar which had healed well. His lower back was surprisingly flexible. For example, on forward flexion h was able to reach beyond his knees with a McRae-Wright movement of 6cm. The lower level of normal is 5cm. Lateral rotation and flexion on each side were throughout the normal range. Extension was reduced to half the range.
Lower limbs. He walked completely normally and comfortably. He could also walk on heel and toe. He made a brave effort at squatting but could only manage half of the normal range.
The legs were equivalent in length and in circumference at the calves. The right thigh was 1cm greater in circumference than the left.
No significant features were identified with the hips, knees, or the ankles.
Sensation to pinprick was throughout the normal distribution, although was perceived more on the right side than on the left.
Reflexes were present, equivalent, and very easy to demonstrate at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.
He was able to sit on the edge of the couch and could fully extend each knee without difficulty.”
The Medical Assessor relevantly provided details of diagnostic investigations undertaken by Mr Carroll dated 29 May 2020, 22 June 2020 and 4 January 2021 and relevantly noted in his summary of injuries and diagnosis Mr Carroll had provided a history of fall in May 2020 in which Mr Carroll sustained discogenic pathology at the L5/S1 articulation, which was surgically treated with micro-discectomy, with “a fairly reasonable result”.
The Medical Assessor relevantly recorded that prior to the surgical treatment on
8 September 2020 “there were radiculopathy features down the left leg” but also reported of Mr Carroll’s current presentation “although sensation was perceived more on the right side than on the left, he did not have appropriate clinical features to diagnose continuing radiculopathy.”The Medical Assessor described Mr Carroll’s presentation as being consistent and provided assessment 12% WPI resulting from the injury Mr Carroll had sustained to his lumbar spine, with explanation:
“Mr Carroll’s lower back condition is assessed in AMA 5 Page 384, Table 15-03. There has been surgery to his lumbo-sacral spine but without fusion. This placed him into DRE Lumbar Category III, which provides a whole person impairment ranging between 10% and 13%, depending on his activities of daily living. For this he would attract a further 2%, giving 12%.”
The Medical Assessor noted that in his report dated 16 May 2022, Dr Burrow had identified continuing post-surgical radiculopathy that had resulted in a 3% higher assessment of WPI than that calculated by the Medical Assessor.
Review of independent medical evidence
Dr Burrow
Mr Carroll was orthopaedically assessed by Dr Burrow in his capacity as independent medical examiner on 4 May 2022, some 14 months prior to when Mr Carroll was assessed by the Medical Assessor. Dr Burrow provided a report dated 16 May 2022. Dr Burrow recorded the circumstances of injury occurring on 14 May 2020 and described Mr Carroll as experiencing “instantaneous low back, left buttock and left leg pain” in the fall. Dr Burrow noted Mr Carroll had initially come under the care of Dr Gambhir, neurosurgeon, on
1 June 2020 who confirmed a history of low back pain and severe left leg radiculopathy in the S1 distribution, confirmed a prominent L5/S1 disc protrusion, found reduced sensation in the S1 distribution, and cautioned Mr Carroll may come to surgical treatment. Dr Burrow noted that with Mr Carroll’s symptoms continuing he subsequently came under the care of
Dr Coughlan and came to L5/S1 microdiscectomy on 8 September 2020. Dr Burrow described Mr Carroll as “currently not working” because of recurrent pain, with Mr Carroll requesting re-referral for physiotherapy treatment “in the hope of complete resolution of his symptoms.”Dr Burrow reported that following surgical treatment Mr Carroll experienced significant improvement in his low back, left buttock and left leg pain. Dr Burrow noted he had no diagnostic investigations available to him for review and relevantly reported of his clinical examination:
“Inspection of his gait showed no limp.
He did not use a brace or orthosis today.
Examination of the lumbar spine showed a 2 cm surgical midline, pale, non-puckered, non-attached, and non-dystrophic incision consistent with the known surgery.
Spinal alignment was normal in the coronal and sagittal planes and there was no paraspinal guarding or spasm but there was loss of lumbar spinal movements by approximately one-half. There was slight asymmetry in lateral flexion.
Examination of the lower extremities showed diminution of the left ankle jerk, but no radicular power dysfunction nor dermatomal pattern sensory changes today. Straight leg raise was 80 degrees on the left and produced buttock pain only and 90 degrees on the right.”
Dr Burrow provided opinion:
“Mr Carroll suffered a significant injury to his L5/S1 disc lumbar spine as a result of the fall at work on 14 May 2020 resulting in a prolapsed disc and L5/S1 radiculopathy with sciatica. He sought two spinal surgeon opinions and proceeded with L5/S1 discectomy with Dr Coughlan on 8 September 2020 and has a good result from that surgery with improved back and near resolution of radicular symptoms… The prognosis is reasonable, but I suspect Mr Carroll will never have complete resolution of his back pain or radicular pain acknowledging he has had a significant improvement as a result of the surgery performed by Dr Coughlan.”
Dr Burrow provided assessment of 15% WPI, which included:
“Assessment of radiculopathy: Mr Carroll had persisting altered left ankle reflex associated with asymmetry of lumbar spine movements together with appropriate imaging studies at L5/S1, and has therefore persisting radiculopathy as per guides, Table 4.27 DRE categories following surgery (effects of surgery) persisting radiculopathy after lumbar surgery 3% WPI.”
Legal considerations
In submission, complaint is made by Mr Carroll that the Medical Assessor erred by failing to diagnose the presence of continuing radiculopathy and there are demonstrable errors in the Medical Assessor’s clinical examination and reported results with reference to cls 4.4, 4.27 and 4.28 of the Guidelines.
Clause 4.27 of the Guidelines provides that in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
(a) loss of symmetry of reflexes;
(b) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution;
(c) reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution;
(d) positive nerve root tension;
(e) muscle wasting – atrophy; or
(f) findings on an imaging study consistent with the clinical signs.
Clause 4.28 of the Guidelines provides:
“complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
Clause 4.4 of the Guidelines provides:
“The assessment should include a comprehensive, accurate history, a review of all pertinent records available at the assessment, a comprehensive description of the individual’s current symptoms and their relationship to activities of daily living (ADL); a careful and thorough physical examination; and all findings of relevant laboratory, imaging, diagnostic and ancillary tests available at the assessment. Imaging findings that are used to support the impairment rating should concord with symptoms and findings on examination. The assessor should record whether diagnostic tests were seen or whether they relied solely on reports.”
The task of the Medical Assessor was to assess Mr Carroll as he presented on the day of the examination and to apply his own clinical judgement in the application of the Guidelines[1] and the Medical Assessor was not bound to agree with findings of other assessors, nor was he required to choose between their assessments. Campbell J described the task of a Medical Assessor in State of New South Wales v Kaur:[2]
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same, but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[1] Guidelines cl 1.6.
[2] [2016] NSWSC 346.
Although in Campbelltown City Council v Vegan[3] the Court of Appeal held that an Appeal Panel is obliged to give reasons, where there are disputes of fact and it may be necessary to refer to evidence or other material on which findings are based, the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, while it is necessary to explain why one conclusion is preferred, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[3] [2006] NSWCA 284.
The standard of reasons required by a Medical Assessor were described by Basten JA in Vitaz v Westform (NSW) Pty Ltd:[4]
“Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to the injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category.”
[4] (2011) NSWCA 254.
Consideration
As noted, complaint is made by Mr Carroll that the Medical Assessor erred by failing to diagnose the presence of continuing radiculopathy and there are demonstrable errors in the Medical Assessor’s clinical examination and reported results with reference to cls 4.4, 4.27 and 4.28 of the Guidelines.
Consistent with the report of Appeal Panel Medical Assessor Oates noted at paragraph 13 above following his assessment of Mr Carroll on 1 December 2023, for the reasons outlined at paragraph 11 above, the Appeal Panel accepts the Medical Assessor erred by failing to diagnose the presence of continuing radiculopathy and there are demonstrable errors in the Medical Assessor’s clinical examination and reported results with reference to cls 4.4, 4.27 and 4.28 of the Guidelines.
CONCLUSION
For these reasons, the Appeal Panel has determined that the MAC issued on 7 July 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W8194/22 |
Applicant: | Cody Carroll |
| First Respondent: Second Respondent: | N Collett and R Larkin trading as Allpride Interiors Workers Compensation Nominal Insurers |
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 Medical Assessor 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 SIRA 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) |
| Lumbar spine | 14/5/2020 | T4.2 p 29 | Ch 15 T15-3 p 384 | 0 | 15% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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