CD Construction & Building Services Pty Ltd v Healey
[2021] NSWPICMP 65
•29 April 2021
DETERMINATION OF APPEAL PANEL CITATION: CD Construction & Building Services Pty Ltd v Healey [2021] NSWPICMP 65 APPELLANT: CD Construction & Building Services Pty Ltd RESPONDENT: Daniel Healey Appeal Panel: Principal Member John Harris
Dr John Garvey
Dr John Dixon-HughesDATE OF DECISION: 29 April 2021 catchwords: WORKERS COMPENSATION- The worker suffered facial and abdominal injuries from a motor vehicle accident; the abdominal injury was treated by bowel resection; the worker was assessed by three approved medical specialists and the combined assessment totalled 40%; the employer’s appeal was restricted to the finding of Class 2 impairment under Table 6-3 of AMA 5 and the assessment of 15% WPI for the upper digestive tract; the worker accepted that there had been error but asserted that he should be assessed as Class 3; Held- the Appeal Panel accepted the parties’ joint submission of error and an assessor re-examined the worker; on re-examination the worker had signs of gastric outlet obstruction evidenced by positive gastric splash signs likely due to adhesions caused by the abdominal surgery and gastro-oesophageal reflux which was treated by Nexium; the worker was assessed as Class 2 of Table 6-3 of AMA 5 noting that desirable weight is defined in the first instance by reference to pre-injury weight and not by reference to the weight tables under Table 6-1; the hospital records showed that the worker weighed 93 kilograms on his initial admission to hospital and his current weight was slightly below this weight; the worker otherwise satisfied the requirements in Class 2 of Table 6-3; observations by the Appeal Panel of applying a “best fit” analysis to the characterisation of Classes in Table 6-3 where the criterions were not mutually exclusive, and a worker could satisfy some of the criteria in separate classes but not all the criteria in one class; Appeal Panel observed that if the condition were worse than that prescribed by Class 1 but did not meet the criteria in Class 2, it would be an absurd result not to assess an impairment; Uelese v Minister for Immigration and Border Protection applied; in those circumstances a worker should be assessed under Table 6-3 on a best-fit basis; MAC confirmed.
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
1.Mr Daniel Healey (the respondent) sustained injury on 8 July 2004 in the course of his employment with CD Construction & Building Services Pty Ltd (the appellant). The respondent was involved in a motor vehicle accident and suffered injuries to various body parts when he was driving home from work.
2.Following the accident, the respondent was admitted to Nepean hospital with facial and abdominal injuries. The facial injuries included an impacted maxillary fracture, orbital rim comminution with multiple orbital wall comminuted fractures, a depressed zygomatic fracture and a maxillary-infraorbital axonotmesis.[1]
[1] Reply, p 39.
3.The abdominal injuries were operated on by Dr Patrick Cregan, Surgeon. At surgery, the doctor observed two lacerations of the small intestine mesentery and a laceration of the mid small bowel. In his report dated 29 May 2006, Dr Cregan stated:[2]
“Two pieces of small bowel were resected, one containing a perforation the other an ischaemic segment of small bowel due to lacerated mesentery”.
[2] Reply, p 38.
4.The respondent served a letter of claim dated 27 March 2020 seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).[3]
[3] Application to Resolve a Dispute (Application), p 243.
5.By letter dated 25 August 2020 the appellant disputed the extent of impairment but did not raise any liability issues.[4]
[4] Application, p 245.
6.Following the commencement of proceedings, the assessment of whole person impairment (WPI) was then referred by the Registrar to three Approved Medical Specialists who assessed distinct body systems. Dr Michael Steiner assessed the visual system at 24% WPI. Dr Paul Curtain assessed the facial features and scarring and provided an assessment of 7% WPI. Dr Neil Berry (referred to in these Reasons as the AMS) examined the upper and lower digestive tract. The AMS assessed the upper digestive tract at 15% WPI and the lower digestive tract at 0% WPI.
7.The assessment of WPI is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[5] The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[6]
[5] The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[6] Clause 1.1 of the fourth edition guidelines.
8.The assessment of the upper digestive tract is made under Table 6-3 of AMA 5. There is a slight amendment to Class 1 of Table 6-3 by paragraph 16.9 of the fourth edition guidelines. Paragraph 16.9 of the fourth edition guidelines provides that Class 1 of Table 6-3 is amended to read “there are symptoms and signs of digestive tract disease”. The amendment inserts “and” for “or”.
9.The AMS then issued a Combined Medical Assessment Certificate dated 22 January 2021 (MAC) which combined the various assessments at 40% WPI.
RELEVANT FINDINGS and REASONS OF THE AMS
10.The respondent described his symptoms as reflux “which comes and goes” and “cramping pain”.[7] Medication included Nexium, Panadol and Nurofen.
[7] MAC, p 3.
11.The AMS recorded the respondent’s height at 181 cm and his weight at 95 kilograms. On examination he observed that the respondent was tender in the epigastrium and non-tender in the lower abdomen. A gastroscopy performed in June 2019 was reported to show gastritis.
12.In his reasons for assessment the AMS observed that the respondent was “well above his desirable weight indicating that there is no nutritional impairment.”[8] The critical findings by the AMS were:[9]
[8] MAC, p 6.
[9] MAC, p 6.
“The claimant’s upper digestive tract is assessed using Table 6.3 on Page 121. Mr Healey has ‘symptoms and signs’ of upper digestive tract disease in that he has
epigastric pain and tenderness and endoscopic evidence excludes coeliac disease and
he has had significant surgical intervention with resection of two sections of the small
bowel. He requires appropriate dietary restrictions and uses Nexium to control his upper digestive tract symptoms. While his weight loss is not below his desirable weight he would be best assessed using Class 2 and I would allow a 15% Whole PersonImpairment for the upper digestive tract.
….
I also indicate that Mr Healey’s abdominal symptoms which in part are due to adhesions are considered in Paragraph 16.11 and it is indicated that they should be assessed in Table 6.3 as I have done.”
13.The AMS otherwise referred to the various medical reports and noted Dr Greenberg’s “excellent history and literature review”.[10] He also referred to Dr Crane’s assessment and that he reached a different conclusion “given the history over the intervening years”.
[10] MAC, p 6.
THE APPEAL
14.On 19 February 2021, the appellant filed an Application to Appeal Against a Medical Assessment (the appeal) to the Registrar of the Workers Compensation Commission (the Commission).
15.On 17 March 2021, the respondent filed an Opposition to the Appeal which was described as a Notice of Contention.
16.The WorkCover Medical Assessment Guidelines (the Guidelines) set out the practice and procedure in relation to appeals to Medical Appeal Panels under s 327 of the 1998 Act.
17.The appellant claims that the medical assessment by the AMS should be reviewed on the basis of the application of incorrect criteria pursuant to s 327(3)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appeal submissions were limited to asserting error by Dr Berry with respect to the assessment of the upper digestive system.
18.The respondent also submitted that the assessment of the upper digestive tract was made on the basis of incorrect criteria and also that it also contained demonstrable errors.[11]
[11] Respondent’s submissions, par 6.
19.There were no appeal submissions contesting the assessments provided by Dr Steiner and Dr Curtain and the assessment provided by the AMS of the lower digestive tract.
20.The Appeal was filed within 28 days of the date of the MAC. The submissions in support of the grounds of appeal are referred to later in these Reasons.
TRANSITIONAL MATTERS
21.After the appeal was lodged, the Workers Compensation Commission was abolished, and the Personal Injury Commission was created as and from 1 March 2021. The Personal Injury Commission Act 2020 amended the 1998 Act and provided for the appointment of non-presidential members and medical assessors to constitute the Appeal Panel (AP).
EVIDENCE
22.The AP has before it all the documents that were sent to the AMS for the original assessment and has referred to portions of the evidence and taken them into account in making this determination.
GROUND OF APPEAL
Appellant’s submissions
23.The appellant did not “cavil” with the history taken by the AMS.[12]
[12] Appellant’s submissions, par 2.3.
24.The AMS noted that the respondent had signs and symptoms of upper digestive tract disease and required dietary restriction and medication but did not fall below the desired weight. The AMS assessed Class 2 on a best fit. The fourth edition guidelines do not provide for a best fit classification.
25.The respondent had to satisfy each of the three criteria under Class 2. He did not satisfy the criteria of “weight loss below desirable weight”. Where there is “no nutritional impairment and the respondent worker has not fallen below his desirable weight, he must be assessed as class 1”.[13]
[13] Appellant’s submissions, par 2.10.
26.The appellant submitted:[14]
“Further, while there is no dispute that the respondent worker has anatomic loss or
alteration of the upper digestive tract following post traumatic bowel resection, the AMShas not identified which gastro-intestinal complaints flow from this.”
[14] Appellant’s submissions, par 2.11.
27.The appellant referred to constipation and diarrhoea resulting from the lower digestive tract. In these circumstances it submitted that “it is unclear on the face of the MAC as to what drugs the applicant is taking to control signs and symptoms in the upper gastrointestinal system as opposed to the lower gastrointestinal system”.[15]
[15] Appellant’s submissions, par 2.12.
28.The respondent should be reassessed as Class 1.
Respondent’s submissions
29.The respondent submitted the assessment by the AMS “was made on the basis of incorrect criteria and contains demonstrable errors”[16] and should be reassessed at a greater percentage.
[16] Respondent’s submissions, par 6.
30.The respondent referred to the discussion by the Court of Appeal in Marina Pitsonis v Registrar of the Workers Compensation Commission[17] on the meaning of incorrect criteria and submitted that the AMS should have found that the respondent satisfied Class 3 of Table 6-3 of AMA 5 because:
(a) the respondent was found by the AMS to have symptoms and signs of upper digestive tract disease,
(b) the respondent has ongoing symptoms such as reflux, constipation, and reflux, and
(c) the respondent requires appropriate dietary restrictions and uses Nexium to control upper digestive tract symptoms.
[17] [2008] NSWCA 88.
31.When the MAC is read as a whole, the second element in Class 3 of Table 6-3 has been satisfied. It is unnecessary to satisfy the third element in Class 3 as it is an alternative to the second element.
32.Dr Greenberg noted that the respondent continued to experience and be troubled by epigastric pain and tenderness. These symptoms and signs as found by the AMS were not completely controlled by Nexium.
33.The appellant’s submissions at paragraph 2.12 are “misconceived” as the AMS clearly indicated that Nexium was used to control the upper digestive symptoms.
34.The respondent also submitted that there was a demonstrable error because the AMS did not comply with AMA 5.
35.The respondent also submitted that the AMS “failed to have regard to the evidence of Dr Greenburg”[18] and did not consider the history obtained by that doctor “with regard to ongoing symptoms and the effects of same”.[19] The failure to have regard to the above evidence “is further indicative of a demonstrable error”.[20]
[18] Respondent’s submissions, par 28.
[19] Respondent’s submissions, par 30.
[20] Respondent’s submissions, par 32.
PRELIMINARY REVIEW/ACCEPTANCE OF ERROR
36.The AP conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines.
37.As a result of that preliminary review, the AP accepted the parties’ joint submission that a ground of appeal had been established. In these circumstances the AP is empowered to undertake a further assessment.[21]
[21] New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 at [32]-[33].
38.The AP determined that a re-examination was necessary despite neither party requesting that the respondent be examined and otherwise both requesting that the matter be reassessed on the papers. Our reasons for adopting this course are as follows:
- There were inaccurate submissions on the question of weight through the failure of either party to refer to paragraph 6.1c of AMA 5.
- The parties provided disparate reasons as to the appropriate classification in Table 6-3 of AMA 5. A correct classification required specific findings of the current symptoms, signs or nutritional deficiency due to the effects of the injury and the operation to remove segments of the small bowel.
- The AP was of the view that it could not appropriately reassess and classify the respondent in the absence of a re-examination and precise findings of the current symptoms, signs or nutritional deficiency and whether these were related to the upper digestive tract injury and the operative procedure which removed segments of the small bowel. The appellant also submitted that the use of medication may be due to the lower digestive tract symptoms and this fell outside the scope of classification under Table 6-3.
39.For these reasons, the respondent was examined on 26 April 2021 by Dr John Garvey, a medical assessor and member of the AP.
RE-EXAMINATION BY DR GARVEY
40.Dr Garvey provided the following report concerning the examination undertaken on 26 April 2021.
1. DETAILS OF MATTERS REFERRED FOR ASSESSMENT
The following matters have been referred for assessment (s 319 of the 1998 Act):
·Date of injury: July 8, 2004
·Body parts/systems referred: Digestive system
·Method of assessment: Whole person impairment
2. EVIDENCE
Documentary Evidence
The following documents were referred by the Commission for this assessment:
Cregan, Patrick Surgeon medical report (page 346)
Seat belt bruising across lower mid abdomen. Laceration of mid small bowel and 2 lacerations of small intestine mesentery requiring 2 pieces of small bowel to be resected. Abdominal wound has healed well apart from minor parting in the mid-portionConclusion: Small bowel perforation and laceration of the mesentery requiring trauma laparotomy
Brotodihardjo, Agus Gastroenterologist medical report January 23, 2012 (page 184) urgency and loose bowel motions, abdominal pain 3 times a day, some weight loss regained, mild bloating and flatulence. Family history of bowel cancer and Crohn’s disease. Examination: Lower abdominal region tenderness. Diagnosis: Irritable Bowel Syndrome. Rx Donna tabs for IBS and Pariet for reflux.
April 13, 2012 (page 183) abdominal symptoms, loose bowel motions, abdominal pain and reflux symptoms. Gastroscopy and colonoscopy proposed.
August 2, 2018 (page 178) epigastric pain after meals, dysphagia, mild bloating and flatulence, diarrhoea. Examination: Tender epigastrium. Gastroscopy proposed. Rx Questran-lite 4 g daily for 2-3 months for bile salt diarrhoea
September 3, 2018 Epigastric pain and hiatus hernia needs to be excluded; possibility of nonulcer dyspepsia.
June 20, 2019 gastroscopy report: Gastritis. Helicobacter pylori negative Rx Nexium or MotiliumHistopathology report: Normal duodenal mucosa
July 1, 2019 Abdominal pain with bloating and flatulence and constipation. 2016 colonoscopy biopsy showed microscopic colitis. IBS is the cause of the underlying problem. Endoscopy is remarkably good and biopsies are clear. Diagnosis: IBS with microscopic colitis
Assem M, Rehabilitation Physician medical report December 14, 2005 (page 344)
Motor vehicle accident at approximately 12:30 PM on July 8, 2004 and suffered a head-on collision. No abdominal pain, nausea or vomiting. Constipated most of the time. Examination: 23 cm laparotomy scar. No abdominal tenderness or organomegaly. No hernias or divarication. Abdominal strength normal. Assessment: Fit for normal duties as a carpenter.
Healey, Daniel injured workers statement (page 295)
Severe dehydration due to gastroenteritis (probably acquired from his son) caused him to pass out at the wheel.Additional Information
The following information was obtained in accordance with Section 324(1) of the 1998 Act:
·Nil
·List any imaging studies provided by the worker which were not listed in the documentation provided: Nil
3. WORKER’S DETAILS INCLUDING
·Date of examination: Monday, 26 April 2021 3:00 PM
·Date of birth and age at examination: November 2, 1983; age 37
·Hand dominance: Right
·Details of who attended the examination: Attended alone
·Date of injury: July 8, 2004
·Employer and occupation: CD construction; Carpenter
4. HISTORY RELATING TO THE INJURY
·Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: I asked the Worker to tell me of the incident in his own words and I wrote this down as closely verbatim as was possible and reproduce it here: The Worker said that a couple of days before the motor vehicle incident on November 5, 2018, his baby son had been suffering from gastroenteritis. He took his son to the Emergency Department at Campbelltown Hospital for treatment the night before the incident and he was diagnosed with gastroenteritis and treated with an intravenous drip. He made a good recovery and the family was allowed to take the baby son home at 3:30 AM in the morning. The Worker spoke to his wife and said that he would not go to work the next day if he did not feel well, but the alarm went off at 6:00 in the morning and he turned up for work to set up a new site at the new Penrith Plaza. Around 7:30 AM he started to feel ill and went to the toilet with diarrhoea and vomiting and nausea caused him to empty right out and he told the Boss that he had to go home.
·On his way home at Luddenham, he had a head-on collision when he passed out at the wheel of his 1994 model VR Commodore sedan (without airbags) and his vehicle went across the other side of the road and collided head-on with a sedan car with a lady and a child which was partially compressed by the incident. The Worker hit the steering wheel and believes he may have woken up momentarily before the collision but passed out again at the wheel and woke up at the crash site in pain and remembered somebody saying that there was an Ambulance coming and then he passed out again. He was taken to Hospital and he remembers giving a consent for PR examination and talking to Professor Patrick Cregan who told him that he would need an urgent operation to which he gave his consent. After the operation, he was in an induced coma for 2 days in ICU and was kept in-hospital for another 2 weeks and then went home and was bedbound for one week further. Then he had to consult the eye Specialist Dr Malcolm Little for a fractured eye socket. He also suffered from a fractured collarbone which resolved without an operation. The recovery process was long, around 2 ½ years, and the only complication he remembers is being constipated for 2 weeks after discharge. In that time he has been having Drs’ appointments and gradually getting back on his feet and now has his own company (having previously filed for bankruptcy when he could not work).
·With respect to digestive system symptoms, the Worker says that sometimes he might use his bowels 3 times per day and then go 2-3 days without opening his bowels at all and then his bowels would work again, but they were not regular. His motion would consist of diarrhoea, and no solid material and excessive wind. He also described reflux symptoms such that if he ate anything with say, hot chili, spicy food, acidic food, soft drinks, alcohol et cetera he would suffer from heartburn and water coming up his throat (waterbrash) all day, which would be relieved when he went to bed at night. For these symptoms he took Nexium 40 mg in the morning which kept the symptoms under control and he did not have these symptoms before the motor vehicle incident.
·With respect to his weight, the Worker said his weight was about 92 kg at the time of the incident and it is also 92 kg on today’s examination. 12 months after the motor vehicle incident, his weight went below 70 kg and his Insurance Company provided him with dietary assistance and supplements and a personal trainer to get his weight back up to normal. Since that time 12 months after the motor vehicle incident, the Worker said that his weight has only gone up.
·Present treatment: Occasional Panadol 2 tablets (and Nurofen) when necessary on advice for his GP for stomach pain. Diet minimising to 6 meals per day and Nexium 40 mg mane. Gastroscopy and colonoscopy to figure out what is going on with his stomach. Neomercazole 1.5 tablets/day for hyperthyroidism (since MVA).
·Present symptoms: Pain under the rib cage, and under the breastbone, bit of pain in the stomach “not much”. The Worker described 3 types of pain, firstly an irritating pain under the rib cage on both sides and cramping abdominal pain in the mid abdominal region occurring about twice per week. He also described a discomfort in the left upper quadrant of his abdomen which felt like solids passing through which would be relieved when the substance moved on, about every fortnight. To deal with his abdominal issues, he would minimise his diet to 6 small portions of food per day with an occasional large dinner meal, but when he went to bed after such a meal he would get discomfort in the belly button area and he would have to push on his abdomen to feel something going through (his digestive tract). The Worker has a haemorrhoid which he described as irritating.
·Details of any previous or subsequent accidents, injuries or condition: Previously “fit as an ox”. Post-incident hyperthyroidism requiring the use of Neomercazole one half tablets a day.
·General health: “I am okay”.
·Work history including previous work history if relevant: With CD constructions for 4 weeks before the incident; previously 1st floor additions and building extension in his own business partnership for 8 months; previously an apprentice carpenter; now working with Crystal Holmes.
·Social activities/ADL: Cigarettes 10/day, alcohol nil. Civil partnership for 21 years with 2 boys aged 17 and 13 years. Likes playing computer games, family activities, holiday with family.
5. FINDINGS ON PHYSICAL EXAMINATION
Inspection: There was no cachexia, pallor of anaemia or jaundice. There was no clubbing of the fingers or liver palms. There were no spider naevi or stigmata of liver disease on the chest. The abdomen was symmetrical and flat in shape. There were no abdominal masses visible or discolouration. There was a midline umbilicus-sparing laparotomy incision measuring 23 cm, but no sinuses or fistulas and the umbilicus showed a small para umbilical hernia at the right upper outer quadrant.
Palpation: There were no enlarged lymph glands palpable in the neck or groin regions. The supraclavicular fossae were normal, the external potential hernia orifices were closed, the femoral pulses were palpable and the external genitalia were normal. Light palpation was normal. Moderate palpation of the abdomen was normal in all quadrants. There was no muscular guarding and no rebound tenderness or crossed rebound tenderness. The liver was not palpable, nor was the spleen and the kidneys were not ballottable. There were no abdominal masses palpable.
Percussion: The percussion note was resonant and there was no fluid thrill and no shifting dullness.
Auscultation: On auscultation the bowel sounds were active and there was no aortic bruit but a positive gastric (succussion) splash. Rectal examination revealed an empty rectum and there were no fissures, fistulas but a thrombosed external haemorrhoid and no blood. The weight was 92 kg and height 180 cm (BMI 28). I showed the Worker the Bristol Stool Chart: And he chose Type 6 (“Fluffy pieces with ragged edges, a mushy stool”).
6. DETAILS AND DATES OF SPECIAL INVESTIGATIONS
July 8 2004 operation report (page 236)
Trauma laparotomy for mid small bowel perforation and distal ileum mesenteric tear resected and end to end anastomosis ×2
.
Histopathology report July 9, 2004 (page 227)
Proximal and distal small bowel: focal haemorrhage and mild inflammationHo, Vincent Gastroenterologist gastroscopy report February 28, 2014 (page 182) moderate inflammation in gastric body (erosive gastritis)
colonoscopy report February 28, 2014 (page 180) NormalHistopathology report February 28, 2014 (page 181) gastric antrum biopsy: reflux gastropathy
June 20, 2019 gastroscopy: Gastritis, but microscopy normal
July 1, 2019 colonoscopy report: Microscopic colitis and Irritable Bowel Syndrome
7. SUMMARY
·summary of injuries and diagnoses:
Gastric outlet obstruction (presumed small intestinal adhesions)
Small bowel resection for perforated small bowel due to blunt (presumed seatbelt) abdominal trauma
Reflux oesophagitis
Irritable Bowel Syndrome
Haemorrhoids·consistency of presentation
This Worker’s history and examination is consistent with his presentation
8. EVALUATION OF PERMANENT IMPAIRMENT
My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:
a.Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body par/system: No
b.Have all body parts/systems stabilized/reached maximum medical improvement? Yes
c.If not, please list those injuries not yet stable/at maximum medical improvement: Not applicable
d.If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? Not applicable
e.Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No
f.If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Not applicable
g.Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury. Hyperthyroidism for which the Worker takes Neomercazole 1½ tablets/day has yet to be assessed by an Endocrinologist.
9. THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
History, physical examination and Specialist reports
10. REASONS FOR ASSESSMENT
a.My opinion and assessment of whole person impairment
15% WPI
In making that assessment I have taken account of the following matters:-
(Listing examination findings, investigation findings and matters of history that have determined the assessment).
The Worker has gastric outlet obstruction evident by positive gastric (succussion) splash sign which is in all likelihood due to adhesions. The AMS did not elicit a gastric splash sign on physical examination but it is evident and unequivocal on today’s physical examination. The Worker has gastro-oesophageal reflux proven histologically (February 28, 2014 (page 181) for which he is being continuously treated with Nexium 40 mg daily. The Worker has Irritable Bowel Syndrome based upon history of alternating constipation and diarrhoea and the colonoscopy biopsy report of microscopic colitis (histology report not tendered but cited by gastroenterologist July 1, 2019).
b.An explanation of my calculations (if applicable)
The “best fit” is a mid-range Class 2 Upper digestive tract impairment for symptoms and signs of upper digestive tract disease and anatomic loss or alteration and requires appropriate dietary restrictions (small portions) and Nexium for control of symptoms. There is no weight loss below the desirable weight of 69-75 kg for a medium framed individual of 1.8 m height, but is otherwise consistent with a Class 2 impairment.
Reasons: 15% WPI for Class 2 upper digestive tract impairment. The para umbilical hernia was detected some 14 years after the motor vehicle incident and is not an incisional hernia so is not an assessable injury but an incidental finding. 0% WPI for IBS is correct.I tend to feel that the AMS’s 15% WPI for upper digestive tract impairment is correct. The AMS seems to have allowed a component for future problems with adhesions, and there is now objective clinical evidence of adhesions in this Worker (gastric outlet obstruction syndrome). If this Worker is assessed as he is found on the day of the examination, then 15% WPI for a Class 2 impairment is correct, both because he now has objective clinical signs of upper digestive tract impairment being a positive gastric (succussion) splash and symptoms and signs of reflux oesophagitis for which there is histological proof for which continuous treatment is required (Nexium). He has no nutritional deficiency because he is exactly the same weight (92 kg) on today’s examination as he was before the incident. 0% WPI for lower digestive system for Irritable Bowel Syndrome is correct.
c.My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.
Berry, Neil MAC January 22, 2021 July 8 2004 head on vehicle collision in the course of his employment sustaining injury to the digestive system
The Worker suffered an attack of gastroenteritis and fainted driving home from work causing a head-on collision suffering 2 [sic 1] perforations in the small bowel (central and terminal ileum) requiring small bowel resection ×2. In 2012 he was diagnosed with microscopic colitis and Irritable Bowel Syndrome by his treating gastroenterologist. In 2018 he was diagnosed with a para umbilical hernia. Symptoms include reflux and cramping abdominal pain, alternating constipation and diarrhoea with intermittent PR blood loss. He lost 2 ½ years off work after his motor vehicle incident.
Medications Panadol, Nexium, Nurofen, Neomercazole, Panadeine Forte
Examination: Midline laparotomy incision. Central umbilical hernia reducible. Tender epigastrium. No guarding, rigidity, rebound or masses palpable. Auscultation normal
Assessment: 15% WPI for resection of 2 sections of small bowel and epigastric pain and tenderness (with a component of abdominal symptoms due to adhesions. 0% WPI for lower digestive system for Irritable Bowel Syndrome. The umbilical hernia is not part of the stipulated motor vehicle incident.Greenberg Anthony, Surgeon medical report June 7, 2018 (page 68): Recurrent central abdominal pain 2-3 times per week lasting several hours with abdominal distension and borborygmi. Explosive diarrhoea and urgency. Symptomatic reducible haemorrhoids. Examination: 25 cm midline laparotomy incision with ventral wall hernia approximately 1 cm in diameter. No hepatosplenomegaly or intra-abdominal mass. No tenderness and abdominal wall was soft and easily palpated. 2nd degree haemorrhoids. Diagnosis: intestinal adhesions and potential small-bowel obstruction and bile salt malabsorption. No assessment proffered.
February 20, 2020: Mr Healy has returned to work and hernia does protrude on occasion and is very uncomfortable. Chronic haemorrhoids/excoriation with associated diarrhoea. Diagnosis: Incisional hernia. Assessment [AMA4]: 11% WPI for lower digestive system (I do not understand this is assessment; the focus of this report seems to be on small bowel adhesions) and 5% WPI for abdominal wall hernia.
Edwards, Kim Surgeon medical report March 5 2019 (page 314)
Loose stools and explosive diarrhoea since the accident. Lower abdominal pain and epigastric pain. Umbilical hernia in 2018. Examination: No evidence of umbilical hernia. Tender right iliac fossa and slight tenderness in the epigastrium. Probably 8 years after the incident before the Worker saw a gastroenterologist. Employment is not considered to be a substantial contributing factor to the diagnosed condition.
July 15, 2020 (page 335) loose bowel motion since the time of the incident and epigastric pain. Umbilical hernia in 2018. Intermittent colicky left upper quadrant abdominal pain. Examination: Midline laparotomy incision, small umbilical hernia, slight tenderness to palpation. No change in Dr Edwards’ opinion. 0% WPI assessed.
d.I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.
11. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
There is no deductible proportion.
12. ANSWERS TO SPECIFIC QUESTIONS
Your answers to the specific questions raised by the Arbitrator. (I have included the questions as well as the answers)
No specific questions raised.”
REASONS
41.The AP adopts, subject to what is set out below, the precise, extensive and thorough findings made by Dr Garvey and adds the following further reasons.
42.Table 6-3 of AMA 5 provides the criteria for rating permanent impairment of the upper digestive tract and is in the following form.[22]
[22] AMA 5, p 121.
43.At hospital immediately following the accident the respondent reported his weight at 93 kilograms.[23] Dr Crane reported the respondent’s weight in 2007 as 75 kilograms.[24] That scenario is consistent with the history recorded by Dr Brotodihardjo, Gastroenterologist and Hepatologist in 2012. Dr Brotodihardjo then noted that following the accident the respondent had lost weight but has now “put on some weight”.[25]
[23] Application, p 221.
[24] Reply, p 42.
[25] Reply, p 50.
44.The respondent stated that by February 2005 he had lost 15 kilograms after the accident.[26]
[26] Application, p 251.
45.Paragraph 6.1c of AMA 5 defines “desirable weight”. This is defined in the first instance as the weight that predates the digestive disorder “that is considered usual and customary”. Reference to the “desirable weight” table[27] is only made if the assessor is unable to determine the pre-injury weight by reference to previous medical records or history.
[27] Table 6-1 for men.
46.The parties failed to address submissions on the respondent’s pre-injury weight and incorrectly proceeded directly to Table 6-1.
47.In this case we have a contemporaneous record from the hospital admission that the respondent was significantly overweight at the time of injury. That record, indicating a pre-injury weight of 93 kilograms, is consistent with subsequent records that the respondent lost 15 kilograms in the short period following the accident and weighed 75 kilograms in 2007 when he was reviewed by Dr Crane.
48.Dr Garvey weighed the respondent at 92 kilograms which is slightly lower than the pre-injury recorded weight.
49.The AP is satisfied, based on the hospital record and the medical records referred to above, that the respondent’s weight is marginally below his usual weight immediately prior to the accident.
50.The respondent has adhesions caused by the injury. The conclusion reached by Dr Garvey is based on a thorough and precise examination of present symptoms. The conclusion is otherwise consistent with other medical opinions.
51.In 2007 Dr Crane, who was qualified by the appellant, noted that there were “no symptoms at present, but the injury and operation itself would have caused abdominal adhesions, which have the potential for causing bowel obstruction in the future.”[28]
[28] Reply, p 44.
52.Dr Anthony Greenburg, General & Gastrointestinal Surgeon, examined the respondent on two occasions. In 2018, Dr Greenburg recorded a history of abdominal pain and loose bowel movements. The doctor then opined that the symptoms were due to small bowel obstruction and related intestinal adhesions.[29]
[29] Application, p 5.
53.Dr Greenburg noted that intraabdominal adhesions form in more than 90 percent of patients after open abdominal surgery. The adhesions can manifest in various ways including chronic pain, disturbance to normal bowel function and acute or recurrent episodes of abdominal pain.[30]
[30] Application, p 6.
54.Dr Greenburg reviewed the respondent in February 2020. At that time, the respondent reported that the recurring abdominal pain was “not as frequent”. The respondent remained on Nexium, and less frequently, Nurofen and Panadol.
55.Dr Greenburg’s subsequent opinion on the cause of the symptoms was unchanged.[31]
[31] Application, p 12.
56.The AMS also concluded that the respondent suffers from “abdominal symptoms which in part are due to adhesions”.[32]
[32] MAC, p 6.
57.In 2019 Dr Edwards did not attribute the current epigastric symptoms to the 2004 work injury.[33] The doctor did not accept the history of ongoing complaints since the accident and referred to the history recorded by Dr Assem in 2005 of an absence of symptoms at that time.
[33] Reply, p 10.
58.Dr Edwards did not discuss the concept of the development of adhesions from the bowel surgery causing subsequent symptoms. He opined that the respondent did not presently suffer symptoms caused by the accident because he did not have symptoms when he consulted Dr Assem in 2005 or Dr Crane in 2007. That opinion does not address the medical opinion that adhesions caused by the nature of the surgery can cause symptoms at a future point in time. This is precisely what Dr Crane opined in 2007.
59.Dr Garvey also found that the respondent “requires appropriate dietary restrictions (small portions) and Nexium for control of symptoms”.
60.The AMS similarly concluded that the respondent takes Nexium “to control his upper digestive tract symptoms”.
61.The appellant’s submission that it was “unclear on the face of the MAC as to what drugs the [respondent] is taking to control signs and symptoms in the upper gastrointestinal system as opposed to the lower gastrointestinal system”[34] is simply wrong.
[34] Appellant’s submissions, par 2.12.
62.For the avoidance of any doubt, the AP concludes that the respondent requires dietary restrictions in the form of small portions and requires Nexium to control his upper digestive symptoms. Indeed, the respondent has been on Nexium for some years to control his upper digestive systems.[35]
[35] Dr Andrewes, Reply, p 53.
63.The AP concludes that the respondent satisfies the second criteria within Class 2 of
Table 6-3. We also conclude that the respondent does not fall within that part of Class 1 which provides that “continuous treatment not required”. The respondent clearly requires continuous treatment for the upper digestive symptoms of gastric outlet obstruction and gastro-oesophageal reflux arising from the injury. He also requires dietary restrictions.
64.There is otherwise no doubt that the respondent suffers from an anatomic loss or alteration and he suffers from symptoms and signs of upper digestive tract disease.
65.We otherwise conclude that the respondent does not fall within Class 3 of Table 6-3. The dietary restriction clearly controls the respondent’s weight. The use of Nexium and other medication also controls the upper digestive signs and symptoms. In these circumstances, we are not satisfied that the dietary restrictions and drugs “do not completely control symptoms, signs or nutritional state” in accordance with the second criteria of Class 3.
66.For these Reasons we are satisfied that the respondent clearly falls within Class 2 of Table 6-3 as he satisfies the three criteria.
67.A finding of where a worker falls within a class within the Table involves matters of degree based on clinical experience. Class 2 has a range of 10% - 24%. Both Dr Garvey and the AMS opined that the respondent should be assessed at 15%.
68.An assessment within that range considers the nature and significance of the dietary restrictions and symptoms. We accept that the finding of 15% properly reflects an assessment falling with the range of 10% - 24% given the findings made by Dr Garvey on examination of “a positive gastric (succussion) splash and symptoms and signs of reflux oesophagitis”.
69.Given the longevity, the fact that the respondent has had a bowel resection and suffers from adhesions, we conclude that the impairment is permanent. There is no basis to make any deduction pursuant to s 323 of the 1998 Act.
Construction of Table 6-3
70.The fourth edition guidelines which adopt AMA 5[36] have the force of delegated legislation.[37] Accordingly, the general principles of statutory construction apply: Collector Customs v Agfa Gevaert Ltd[38] adopting Dixon J in King Gee Clothing Co Pty Ltd v The Commonwealth.[39]
[36] Paragraph 1.1 of the fourth edition guidelines.
[37] Ballas v Department of Education [2020] NSWCA 86 at [97].
[38] [1996] HCA 36.
[39] [1945] HCA 23; (1945) 71 CLR 184 at 195.
71.The principles of statutory construction are well settled. As the plurality stated in Military Rehabilitation CommissionvMay[40], the “question of construction is determined by reference to the text, context and purpose of the Act”, citing Project Blue Sky Inc v Australian Broadcasting Authority[41] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[42].
[40] [2016] HCA 19 at [10].
[41] [1998] HCA 28 at [69]-[71].
[42] [2009] HCA 41 (Alcan).
72.The AP was not assisted by proper submissions on the construction of Table 6-3.
73.The parties’ submissions proceeded on the basis that a “best fit” analysis was inappropriate in classifying upper digestive tract disease under Table 6-3.
74.AMA 5 lists various examples in the application of Table 6-3.[43] Example 6.8 of AMA 5 is a Class 2 impairment where the worker had an “unimpaired weight”.[44] Example 6.9 is a Class 2 impairment where the weight increased following injury and is described as “weight maintained within 10% of desirable levels”.[45] Both examples suggest that a person may be classified as Class 2 despite not meeting the third criterion within that Class.
[43] AMA 5, pp 121-127.
[44] AMA 5, p 124.
[45] AMA 5, p 124.
75.The criteria in Class 1 and Class 2 of Table 6-3 are not mutually exclusive. Class 1 has a criteria that provides that “continuous treatment not required”. If continuous treatment is required, then that suggests that a worker is classified as Class 2 or higher. However, if the appellant’s submissions were accepted that each of the criteria must be established to fit within a Class in circumstances where the worker had returned to his pre-injury weight, then neither Class 1 nor Class 2 would be satisfied.
76.Leaving aside the issue of weight loss, the respondent requires “continuous treatment”. In respect of that criteria, he does not fall within Class 1. However, if there was no weight loss and his weight was above that set out in Table 6-1, then it is equally likely that he would not satisfy the third criteria in Class 2. In those circumstances, it is medically plausible that a worker would require ongoing treatment which was effective in avoiding any weight loss.
77.Both Dr Garvey and the AMS resolved that conundrum by applying a best fit in classifying under Table 6-3.
78.The use of the word “and” clearly suggests that each of the criteria are required to fall within Class 2. However, in circumstances where a worker’s symptoms are greater than that provided by Class 1 and may not fall within all the criteria within Class 2, there is a clear difficulty in properly classifying under Table 6-3.
79.The respondent does not fall within Class 1 because he requires continuous treatment. It would be an absurd result if a worker were not assessed as suffering any impairment because he or she was not classified as Class 1 because the symptoms were worse than the criteria required by that Class and not classified as Class 2 because one of the other criteria was not met. Such a result would produce an absurd result and should be avoided: Uelese v Minister for Immigration and Border Protection.[46]
[46] [2015] HCA 15 at [45] per French CJ, Kiefel, Bell & Keane JJ.
80.The resolution of that outcome was avoided by the AMS and Dr Garvey in applying a “best-fit” to the classification under Table 6-3. The examples in AMA 5 referred to earlier[47] also support that proposition.
[47] See [74] herein.
81.The reasoning of the AP set out earlier is that the respondent otherwise satisfied the three criteria in Class 2 and is appropriately assessed at that rating. However, had we not reached that view because the worker did not satisfy the loss in weight criteria, then we would have independently assessed the respondent on a best fit basis and concluded that he should otherwise be assessed as Class 2 and made the same percentage assessment. Our reasoning for that conclusion is based on the operative treatment and ongoing symptoms caused by the adhesions[48]. In our view the best fit analysis is consistent with a beneficial approach to the construction of the Table and avoids the absurdity identified earlier in our reasons.
[48] See [50] – [65] herein.
CONCLUSION
82.The AP agrees with the assessment made by the AMS for the upper digestive tract and assesses it at 15% WPI. The other body parts were not the subject of an appeal.
83.In these circumstances the MAC is confirmed.
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