Catering Industries (NSW) Pty Ltd v George
[2025] NSWPICMP 234
•3 April 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Catering Industries (NSW) Pty Ltd v George [2025] NSWPICMP 234 |
| APPELLANT: | Catering Industries (NSW) Pty Ltd |
| RESPONDENT: | Patricia Valma George |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 3 April 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); worker sustained a Type 2 odontoid process fracture at C2 level; Medical Assessor (MA) assessed DRE IV as a “best fit” because an internal fixation of the odontoid process fracture did not have an impairment rating; MA failed to adequately consider whether the criteria in the other categories, particularly, cervical category III in Table 15-5 applied in this case; Appeal Panel found error in determination by the MA that whole person impairment (WPI) should be determined by reference to DRE Cervical Category IV in circumstances where there was an acute fracture of the single C2 vertebral segment; assessment was made on the basis of incorrect criteria; Held – MAC revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 January 2025 Catering Industries (NSW) Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Donald Cawthorne, Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 September 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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.
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
Patricia Valma George (Ms George) sustained an injury to her cervical spine on 5 November 2021 in the course of her employment as a catering assistant with Catering Industries (NSW) Pty Ltd (the appellant) when she slipped and fell on a wet patch of floor hitting her head on the door jamb as she fell.
Ms George lodged an Application to Resolve a Dispute (Application) with the Personal Injury Commission (Commission) dated 20 June 2024 for lump sum compensation in respect of an injury to the cervical spine on 5 November 2021.
In a Referral for Assessment of Permanent Impairment to Medical Assessor dated
15 July 2025, the matter was referred assessment as follows:(a) date of injury: 5 November 2021;
(b) body systems/parts: cervical spine
scarring – TEMSKI;
(c) method of assessment: Whole person impairment.
The Medical Assessor examined Ms George on 14 August 2024 and assessed 27% whole person impairment (WPI) of the cervical spine and 0% WPI for scarring/TEMSKI which resulted in an assessment of 27% WPI in respect of the injury to the cervical spine on
5 November 2021.
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.
The appellant did not request that Ms George be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Ms George to undergo a further medical examination because there was sufficient information upon which to make a determination.
EVIDENCE
Documentary evidence
13.The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
14.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
15.Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) the Medical Assessor erred in finding that WPI should be determined by reference to DRE Cervical Category IV in circumstances where there was an acute fracture of the single C2 vertebral segment. The Medical Assessor has inappropriately applied the criteria set out in the Guidelines and made a demonstrable error;
(b) the Medical Assessor had failed to provide an adequate path of reasoning for his decision to classify the Ms George’s injury as a rateable impairment pursuant to DRE Cervical Category IV;
(c) the Medical Assessor has incorrectly applied AMA5 and the SIRA Guidelines when assessing the fracture of a single segment at the C2 level. The Medical Assessor confirms a Type 2 odontoid process fracture. Based on the instability related to the fracture pattern, Ms George underwent surgical stabilisation with internal fixation on 11 November 2021. The stabilisation surgery addressed the acute fracture of the CT vertebral segment, also known as the “dens” or “peg”;
(d) Ms George did not submit to a fusion of multiple spinal segments of the cervical spine, nor was there any surgical initiative to remove or decompress a herniated disc at the C2 level;
(e) the Medical Assessor outlined an analogy between fixation of the odontoid fracture, the peg of C2, and a spinal fusion. The stabilisation procedure was conducted to restore the anatomy of the C2 vertebral segment, which it did. The operation did not fuse different segments of the spine. The operative procedure conducted by Dr Mews was a repair and stabilisation of the C2 “peg”;
(f) the Medical Assessor has inappropriately applied the criteria with regard to the directions provided in the Guidelines with respect to stabilisation devices in
cl 4.40 and Table 15-5 of AMA 5;(g) The Medical Assessor has committed a demonstrable error by regarding the stabilisation process as a “fusion process” as contemplated by AMA5 at Table 15-5 on page 392;
(h) the Medical Assessor failed to provide adequate reasoning for his conclusion regarding the application of the Guidelines and AMA5 to assess the respondent worker at DRE IV (Mahenthirarasa v State Rail Authority of NSW & Ors [2007] NSWSC 22).The Medical Assessor is not required to give expansive reasons for the ultimate conclusion but is required to disclose the actual path of reasoning in sufficient detail to enable a Court to see whether the opinion does or does not involve an error of law (Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43). As confirmed in Vegan, reasons need not be extensive or provide a detailed explanation of criteria applied by the medical professionals in reaching a professional judgment;
(i) noting the agreement with Dr Machart by the Medical Assessor that the procedure performed to stabilise the single C2 segment was not a “fusion”, the Medical Assessor then failed to provide any adequate path of reasoning in relation to the categorisation of Ms George as DRE Cervical Category IV specifically by reason of her submission to a “fusion procedure”. The Medical Assessor provided no information or material to support his finding the best fit of a “fusion” when assessing permanent impairment (Mahenthirarasa);
(j) he reasoning provided by the Medical Assessor indicates that he had extrapolated the spinal fusion at one level as per paragraph 4.37 on page 29 of the Guidelines 1, but fails to articulate why he considers the stabilisation/fixation procedure by way of screw into a single segment of the C2 peg was a fusion procedure as articulated in Table 15-5 on page 392 of AMA5 and nor does the Medical Assessor specifically articulate why he agreed with Dr Machart that the procedure was not a “fusion” and then assess impairment under DRE IV specifically relevant to that type of surgical procedure;
(k) additionally, there was no indication by the Medical Assessor that there had been an alteration of motion segment integrity within the parameters of DRE Cervical Category IV as set out in Table 15-5 of AMA5, so as to allow him to classify Ms George as appropriately assessed under this criterion;
(l) the Medical Assessor indicates that the classification of DRE IV was a “best fit” as an internal fixation of the odontoid process fracture did not have an impairment rating. He, therefore, extrapolated the spinal fusion at one level as per paragraph 4.37 on page 29 of the Guidelines. However, he does not give sufficient reasons or identify information or material to support his finding of “best fit” of a “fusion procedure”;
(m) the appropriation of a “best fit” in relation to the stabilisation process does not correlate with a spinal fusion, which is a procedure that reinforces the structure and stability by linking two vertebral segments together. As Dr Machart pointed out, there was no surgical fusion or attempted surgical fusion. The operation was internal fixation of a fracture of a single segment of the C2 vertebrae. The reasoning of the Medical Assessor relevant to the stabilisation procedure as being a “best fit” with the fusion constitutes a demonstrable error;
(n) the Medical Assessor failed to provide an adequate path of reasoning in relation to the application of DRE Cervical Category IV relevant to a stabilisation/fixation of the C2 “peg/dens”. In the alternative, the reasons provided by the Medical Assessor in paragraph 10(b) of the MAC in relation to his assessment of DRE IV were inadequate;
(o) the Medical Assessor does not adequately justify his classification of the procedure conducted to stabilise the C2 dens/peg as being a fusion procedure without addressing any compromise of the disc at the C2 level. The stabilisation procedure conducted in this case is a separate and discrete surgical initiative from that of a spinal fusion as contemplated by DRE Cervical Category IV in Table 15-5 of AMA5, which traditionally treats a compromised disc between two separate vertebral segments culminating in a “fusion” of 2 or more vertebrae at multiple levels (paragraph 4.38 of the Guidelines);
(p) the Medical Assessor has inappropriately applied the criteria as set out in the Guidelines, particularly in paragraph 4.37 on page 29 and in Table 15-5 on page 392 of AMA5;
(q) the Medical Assessor has committed a demonstrable error by regarding a single-level stabilisation of a fracture as being a spinal fusion as contemplated by DRE Cervical Category IV on page 392 of Table 15-5 of AMA5, and
(r) the assessment should be reviewed and an assessment provided in accordance with the Guidelines and AMA5 in respect of the injury sustained by the Ms George in the course of her employment on 5 November 2021.
Ms George’s submissions include the following:
(a) the findings of the Medical Assessor were not discordant with the examination and observations on the day of the examination. The submissions that the Medical Assessor has applied the incorrect criteria and/or the MAC has a demonstrable error are not made out;
(b) clause 4.40 should be read in its context, with prior cl 4.37 referring to the effects of surgery, and specifically, Table 4.2 of the AMA5 which allows for "modifiers for DRE categories following surgery", in circumstances where there are, for example, residual symptoms and radiculopathy;
(c) the Medical Assessor's findings are not inconsistent with cl 4.40. The Medical Assessor has not afforded any additional WPI over and above the DRE category, and on the basis of the impact of the fixation. The Medical Assessor in this certificate has not applied any additional WPI on account of the internal fixation;
(d) the Medical Assessor compares the impairment of a DRE IV on the basis of a spinal fusion being the likely outcome of a similar fracture mechanism requiring surgery at a lower cervical level in circumstances where there is no specific impairment rating for the type of fracture sustained by Ms George;
(e) path of reasoning, the reasons of a decision maker must be read as a whole and given a 'beneficial construction' (Minister for lmmigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259);
(f) in Campbelltown City Council v Vegan [2006] NSWCA 284, Basten JA (with McColl JA agreeing) held at [122]:” ... to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment.”’
(g) in Bugat v Fox [2014] NSWSC 888 at [32], a Medical Assessor's reasons should not be subjected to "minute and detailed textual criticism in the hope of finding something on which to base an argument.";
(h) the following can be gleaned from the above: a. A Medical Assessor must provide reasons; however, they need not be extensive. b. A Medical Assessor must consider their own clinical examination. c. Such reasons are not to be scrutinised over zealously, nor do they need to be extensive or provide a detailed explanation of the criteria provided;
(i) the Medical Assessor has satisfied his statutory duty to provide reasons and relied on his own clinical skill and judgment in his determination of Ms George’s WPI;
(j) the reasoning of the Medical Assessor is self-evident. The Medical Assessor has noted that Ms George’s injury is not covered by the Guidelines and therefore he is required to perform a 'best fit' classification. This is required under clause 1.23 of the Guidelines;
(k) the Medical Assessor goes on to note that while he disagrees with Dr Bodel' s characterisation of the procedure as a 'fusion type procedure', he considers a spinal fusion as a "likely outcome of a similar fracture mechanism requiring surgery at a lower level." The Medical Assessor's reasoning is that an alternative procedure to the one performed, would likely be a fusion surgery, and therefore a similar rating of impairment would be appropriate;
(l) the appellant states that the Medical Assessor has failed to articulate why he considers the stabilisation/fixation procedure was a "fusion" procedure". This is a misreading of the Medical Assessor's reasoning, as the Medical Assessor is not saying that the procedure performed was a 'fusion' procedure;
(m) the Guidelines at cl 1.6 require the Medical Assessor, in determining a worker' s permanent impairment to exercise their clinical judgment. Indeed, the Medical Assessor has done precisely this by opining that a spinal fusion would be a likely outcome of a similar fracture requiring surgery at a lower cervical level;
(n) conclusion, based on the material before the Medical Assessor, it was open to him to make the findings he did, and
(o) the insurer relies on the Mahenthimmsa v State Rail Authority of NSW & Ors [2007] NSWSC 22, however, this current dispute essentially comes does to a difference of opinion between medical practitioners, something that is specifically defined in Mahenthimmsa as not a demonstrable error. The reasons of the Medical Assessor need not be extensive, and it is submitted that the Medical Assessor has provided adequate reasons in accordance with the Guidelines and in satisfaction of his statutory duty.
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.
Ground 1 – assessment of the cervical spine
The appellant submits that the Medical Assessor erred in finding that WPI should be determined by reference to DRE Cervical Category IV in circumstances where there was an acute fracture of the single C2 vertebral segment. The appellant argues that the Medical Assessor had failed to provide an adequate path of reasoning for his decision to classify the Ms George’s injury as a rateable impairment pursuant to DRE Cervical Category IV.
The Appeal Panel reviewed the MAC and the evidence in this matter.
In the MAC, under “History relating to the injury”, the Medical Assessor wrote:
“Mrs George suffered a slip and fall at her workplace on 05/11/2021. She states that she fell on a wet patch of floor, hitting her head on the door jamb as she fell. Following the fall, she managed to get up into a chair and rested for a period of time then reported the injury and went home. Based on severe increasing pain, she was taken to Goulburn Base Hospital later that day.
On imaging performed at the hospital, she was noted to have a Type 2 odontoid process fracture and she was referred to Dr Mews, Neurosurgeon, at Canberra Hospital. Based on the instability related to this fracture pattern, she underwent surgical stabilisation with internal fixation on 11/11/2021. Mrs George was managed post-operatively in a rigid collar for several weeks post-operatively and then had standard post-operative rehabilitation.”
Under “Findings on physical examination”, the Medical Assessor wrote:
“Mrs George has a 5cm, right sided, transverse scar over the anterior neck that is similar in colour to the surrounding skin with no tethering and she is not concerned by the scar.
Her range of motion in degrees at the cervical spine was:
20° forward flexion
20° extension
20° left and right flexion
40° left rotation
30° right rotation
She had grade 5 power in the upper limb myotomes. She was Hoffman negative and had normal grasp release reflex. Her upper limb reflexes were +1 and symmetrical”.
The Medical Assessor made the following diagnosis:
“Mrs George is a 62 year old lady who sustained a Type 2 odontoid process fracture after a fall at work that required operative fixation. This was undertaken on 11/11/2021 and she has had a good result following this with only occasional aching pain sensations and some impact on her IADLs(sic) continuing”.
Under “Reasons for assessment”, the Medical Assessor assessed 27% WPI and wrote:
“Mrs George was assessed at DRE IV: 25%-28% WPI as the classification of best fit. Internal fixation of an odontoid process fracture does not specifically have an
impairment rating. Therefore, I have extrapolated spinal fusion at one level as per
paragraph 4.37 on page 29 of the SIRA Guidelines 2021 as the likely outcome of a
similar fracture mechanism requiring surgery at a lower cervical level.
Paragraph 4.30 on page 27 of the SIRA Guidelines in regards to spinal fractures
discusses loss of height or posterior element fracture which does not apply in this case.
Addition of 2% ADLs as Mrs George has the ability to manage personal care but is
restricted with usual household tasks such as vacuuming and making beds.
I have attributed 0% WPI TEMSKI rating due to the scar with the patient being barely conscious of the scar, with a good colour mach (sic) of the surrounding(sic) skin, with no obvious staple or suture marks and no contour defects.
Therefore, overall WPI is 27%.”
In commenting on the other medical opinions, the Medical Assessor wrote:
“Dr Bodel, 04/09/2023: DRE IV with ADLs 2% = 27% WPI.
Dr Machart, 02/04/2024: DRE II, 5% with 2% ADLs and 1% TEMSKI equalling 8%
WPI.
The division between Dr Bodel and Dr Machart is in relation to the lack of reference of a C2 fracture in the AMA-5 or SIRA Guidelines. Dr Bodel has attributed DRE IV
describing the fixation that Mrs George had as a fusion type procedure. Dr Machart
rightly points out that this is not specifically correct in regards to a fusion between
adjacent vertebra. He therefore attributed DRE II based on range of motion and ADL impact.
I have determined a DRE IV based on the above reasons”.
The Guidelines at cl 1.23 provide:
“AMA5 (p 11) states: ‘Given the range, evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments ... In situations ·where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.' The assessor must stay within the body part/region when using analogy.
The assessor's judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.”
The Guidelines at 4.30 provide:
“….
Posterior element fractures (excludes fractures of transverse processes and spinous processes) at multiple levels are assessed as DRE III.”
The Guidelines provide:
“4.37 Effect of surgery: AMA5 tables 15-3 to 15-5 (pp 384, 389 and 392) do not adequately account for the effect of surgery on the impairment rating for certain disorders of the spine. The assessor should note that: • Surgical decompression for spinal stenosis is DRE category III (AMA5 Table 15-3, 15-4 or 15-5)
• Operations where the radiculopathy has resolved are considered under the DRE category III (AMA5 Table 15-3, 15-4 or 15-5).
• Operations for spinal fusion (successful or unsuccessful) are considered under DRE category IV (AMA5 Table 15-3, 15-4 or 15-5)
• DRE category V is not to be used following spinal fusion where there is a persisting radiculopathy. Instead, use Table 4.2 in the Guidelines
• Radiculopathy persisting after surgery is not accounted for by AMA5 Table 15-3, and incompletely by tables 15-4 and 15-5, which only refer to radiculopathy that has improved following surgery.
Table 4.2 indicates the additional ratings which should be combined with the rating determined using the DRE method where an operation for an intervertebral disc prolapse, spinal canal stenosis or spinal fusion has been performed.
Example 15-4 in AMA5 (p 386) should therefore be ignored…”
Clause 4.40 of the Guidelines provides: “Posterior spacing or stabilisation devices: the insertion of such devices does not warrant any additional WPI.”
Table 15-5 in AMA5 (p392) sets out the criteria for rating impairment due to cervical disorders. This Table includes the criteria for fractures. Under “DRE Cervical Category II” Table 15-5 provides:
“…fractures: (1) less that 25% compression n of one vertebral body; (2) posterior element fracture without dislocation that has healed without loss of structural integrity or radiculopathy; (3) a spinous or transverse process fracture with displacement.”
Under “DRE Cervical Category III”, Table 15-5 provides:
“…fractures: (1) 25%-50% compression of one vertebral body; (2) posterior element fracture with displacement disrupting the spinal canal; in both cases the fracture is healed without loss of structural integrity; radiculopathy may or may not be present; differentiation from congenital and developmental conditions may be accomplished , if possible, by examining preinjury roentgenograms or by bone scams performed after the onset of the condition.
Under “DRE Cervical Category IV”, Table 15-5 provides:
“Alteration of motion segment integrity ….…fractures: (1) more than 50% compression of one vertebral body without residual neural compromise.’
Dr James Bodel, consultant orthopaedic surgeon, in a report dated 4 September 2023, noted that CT scans done at the Goulburn Hospital had shown a “C2 type II fracture of the dens with associated ALL and PLL haematoma with no active bleeding or vessel injury”. Dr Bodel went on to state:
“Another report of the CT scan of the cervical spine and brain dated 05 November 2021 confirms that the odontoid process has slipped and that was the reason that it needed to be stabilised and internally fixed. This therefore is a surgical fusion to try and recreate the connection between the odontoid process and the vertebral body of the second cervical vertebra”.
In an impairment assessment report dated 4 September 2023, Dr Bodel wrote:
“She has had a “successful or unsuccessful attempt at surgical arthrodesis” in the cervical spine to reattach the odontoid process to the C2 vertebral body. This is a DRE cervical category IV level of assessable impairment in accordance with the description in Table 15-5 on Page 392 of AMA5. There is a base rating of 25% Whole Person Impairment and a 2% loading for interference in activities of daily living in this circumstance giving a 27% Whole Person Impairment overall”.
In a report dated 18 June 2024, Dr Bodel wrote:
“I have carefully read the report from Dr Machart dated 2 April 2024 in which he confirms that he agrees with the diagnosis of the injury to the cervical spine as being an acute fracture of the C2 vertebral body. I cannot understand the logic of his assessment of a DRE Cervical Category II rating particularly when he indicates that “There is no radiculopathy. There is symmetrical posttraumatic stiffness”. The requirement for the DRE Cervical Category II rating is asymmetrical posttraumatic stiffness which he has not recorded. Following his logic, it therefore should be a DRE Cervical Category I rating which is clearly not correct.
He then questions the reason behind my DRE Cervical Category IV rating. He states that “the injury has now healed. It is not clear why the doctor (me) assessed that she would be struggling or not be able to work. There was complication. Standard prognosis for a healed fracture of C2 is not in line with the doctor’s assessment. Reasons diverting were not explained by the doctor and not supported by medicals”.
I do not really understand his statement. In reality this lady had a surgical procedure to stabilise a fracture between a part of the anatomical C1 vertebra which is the dens (peg) fusing it back to its normal position which is the body of the C2 vertebral body. That is a surgical procedure that is trying to heal a fracture and in my view is analogous with a “successful or unsuccessful attempt at surgical arthrodesis”. I see no reason to change the level of assessable impairment previously given. By way I can accept that successful fusion of the fracture back to its original place does greatly enhance her outcome and it is a reasonable outcome. A solid fusion does not increase her liability for further potential catastrophic injury and I agree with that. She still, however, has pain and that is the reason why I suspect that there will need to be some long-term restriction on her work activities”.
Dr Frank Machart, consultant orthopaedic surgeon, in a report dated 2 April 2024, wrote:
“The injury on 05/11/2021 caused acute fracture of C2 vertebral segment, also known as the dens or peg. She was treated by stabilisation of the fracture, by internal fixation. She did not have cervical fusion plan for cervical fusion. It is not clear whether the facture has healed by bony union. Overall, there is a satisfactory outcome, with no neurological complication.”
Dr Machart assessed the cervical spine as follows: “Healed fracture of the dens does not rate. There is no radiculopathy. There is symmetrical posttraumatic stiffness. The best estimate is 5% WPI to DRE II. Impact on ADLs 2. Total 7% WPI”.
Dr Marchart commented on Dr Bodel’s assessment provided in the report dated 4 September 2023 noting:
“I did not see evidence that there was a cervical fusion or attempted cervical fusion. The operation was internal fixation of fracture. I do not agree with the selected DRE IV category at 25%. I agree with the doctor on assessment of the pathology fracture odontoid process C2 vertebral body.”
The report of CT scan of the cervical spine on 4 May 2022 performed in the Department of Radiology at Canberra Hospital, records:
“Type 2 odontoid fracture is noted, with screw fixation. The alignment has not changed. There is 3 mm posterior displacement of the odontoid process in relation to the C2 vertebral body. There is interval partial osseous union at the fracture margins, however, the fracture line remains discernible. Callous is increased…”
There is no dispute that Ms George had sustained an acute fracture of C2 vertebral segment, also known as the dens or peg. She was treated by stabilisation of the fracture, by internal fixation.
The Appeal Panel noted that Medical Assessor made an assessment by way of analogy on the basis that internal fixation of an odontoid process fracture does not specifically have an impairment rating. The Medical Assessor “extrapolated spinal fusion at one level as per paragraph 4.37 on page 29 of the SIRA Guidelines 2021 as the likely outcome of a similar fracture mechanism requiring surgery at a lower cervical level.”
However, in making an assessment by way of analogy, the Medical Assessor should, in our view, have considered whether the condition falls within or is a best fit with the criteria set out in the other cervical categories in Table 15-5 of AMA5. The Appeal Panel considers that the Medical Assessor failed to adequately consider whether the criteria in the other categories, particularly, cervical category III in Table 15-5 applied in this case. The Appeal Panel is satisfied that the Medical Assessor did not provide adequate reasons for his assessment by way of analogy and such failure to provide adequate reasons was an error.
The Appeal Panel finds that the Medical Assessor erred in finding that WPI should be determined by reference to DRE Cervical Category IV in circumstances where there was an acute fracture of the single C2 vertebral segment and one segment has not been fused to another segment, and there was no alteration of motion segment integrity.
The injury to be assessed is a fracture of the dens or odontoid peg of the C2 vertebra, which articulates with C1. The fixation of this fracture was a segmental fixation within the C2 vertebral body to anchor the dens. A fracture of the dens or odontoid peg of the C2 vertebra is more extensive than a fracture of a transverse process with displacement (referred to in DRE II). The Appeal Panel, therefore, does not agree that this fracture could be classified under DRE II.
The Appeal Panel accepts that the internal fixation which Ms George underwent is not a fusion of vertebrae. There were no other vertebrae involved in the internal fixation apart from C2. The internal fixation was a segmental fixation with a screw within the vertebra. Further, the Appeal Panel notes that the fixation appears to be stable despite displacement.
The Appeal Panel notes that there was 3mm of displacement following the internal fixation. The 3mm displacement encroaches into the spinal canal but has healed without any loss of structural integrity. Because there is no loss of motion segment integrity, DRE IV is not an appropriate classification for this injury.
The Appeal Panel noted that the Medical Assessor extrapolated spinal fusion at one level “as the likely outcome of a similar fracture mechanism requiring surgery at a lower cervical level”. However, this approach did not take into account the fact that internal fixation at one level is not a fusion of two vertebrae. The fact that a fracture at a lower level may have required fusion does not adequately take into account the fact that there was no fusion performed at the C2 level and there is significant difference between surgery that involves a fusion and surgery that involves internal fixation.
The Appeal Panel considers that this fracture falls within DRE III in Table 15-5 of AMA5. Although this is not a posterior element fracture with displacement disrupting the spinal canal, it is a fracture of the C2 vertebral segment, also known as the dens or peg. There has been displacement disrupting the spinal canal but the fracture has healed without loss of structural integrity.
In conclusion, the Appeal Panel finds that the Medical Assessor made a demonstrable error when assessing the cervical spine as DRE IV and the assessment was made on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 September 2024 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: | W22784/24 |
Applicant: | Catering Industries (NSW) Pty Ltd |
Respondent: | Patricia Valma George |
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 Donald Cawthorne 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Cervical Spine | 05/11/2021 | Para 4.37 P29 | Table 15-5 P392 | 17% | 0% | 17% |
| 2.Scarring – TEMSKI | 05/11/2021 | 0 | 0 | 0 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
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.
0
5
0