Chilcott v DLP Scaffolding Pty Limited (Under External Administration)
[2021] NSWPICMP 224
•1 December 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Chilcott v DLP Scaffolding Pty Limited (Under External Administration) [2021] NSWPICMP 224 |
| APPELLANT: | Dean Raymond Chilcott |
| RESPONDENT: | DLP Scaffolding Pty Limited (Under External Administration) |
| APPEAL PANEL: | Ms Deborah Moore Dr James Bodel Dr Mark Burns |
| DATE OF DECISION: | 1 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant challenged the Diagnostic Related Estimate assessment by the Medical Assessor; appellant wrongly applied chapter 4.7 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 when the correct approach was the application of chapter 4.32; Held – Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 September 2021 Dean Raymond Chilcott (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin O’Toole, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 26 August 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, no reasons were given as to why this was necessary, other than the Panel “may consider it appropriate that a re-examination of the worker take place.”
We have carefully considered all of the evidence, and we are satisfied that we have sufficient evidence before us to enable us to determine the appeal without any re-examination.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in his assessment of the DRE categories.
In reply, DLP Scaffolding Pty Limited (the respondent) submits that no errors were made.
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.
The respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of the lumbar spine resulting from injuries on 15/10/2016, 21/08/2017, 24/05/2018, 28/08/2020.
The MA obtained the following history:
“Mr Chilcott first injured his lumbar spine on 15/10/2016. He stated that he was working in a supervisory role. He was ‘running out’ gear for the others to use. He was carrying scaffold on his right shoulder and as he lifted his right leg to step over a wall, his left leg gave way under him. He scraped the inside of his left thigh. He was taken to the first aid room and assessed. He had pain in his back by that stage.
He stated that he saw a general practitioner (GP), Dr Hoang, on the following Monday, and was certified for a number of weeks of suitable duties. He received physiotherapy and analgesia.
He recalled that the pain in his back has been present ever since. He stated that he was able to return to work and his requirement for heavy lifting and working reduced to accommodate his symptoms.
He recalled that he suffered another injury on 21/08/2017. He was leaning forward to pick up a prop from a pallet and he felt a ‘pop’ in his lower back. He stated that he again saw the local GP and was again referred for physiotherapy. He stated that he did not receive any imaging. He was able to return to full duties through a gradual return to work (GRTW).
Mr Chilcott stated that on 24/05/2018 he suffered his third lower back injury. He was performing some stripping work, walking along, leant over, and chipping away materials from a wall as he went. When he attempted to stand upright, he found that he was stuck and he had to walk towards a wall and walk his hands up the wall to get himself upright. He stated that he was taken to see the same GP, Dr Hoang, who arranged imaging. He recalled that when he returned, Dr Hoang advised that his back was ‘stuffed’ and that he should seek legal advice.
He was referred to Dr Raj Reddy, Neurosurgeon. A bone scan at the time identified increased uptake in the right L5/S1 facet joint. He recalls being referred for facet joint injection. He stated that he received ‘about a week’ of pain relief from this procedure.
He was then referred to Dr David Broe, Orthopaedic Surgeon, specifically to assess his bilateral hip pain. Dr Broe determined that the hip pain was due to bilateral gluteal tendinopathy that was ‘related to his lower back pathology’. He recommended ongoing conditioning and core and pelvis stabilisation.
Dr Reddy then recommended that he see Dr James Yu, Pain Specialist and a trial of pain management (facet joint ablation). Dr Yu arranged for radiofrequency neurotomy (RFN). Mr Chilcott stated that this brought about two weeks of relief. He has undergone a Pain management program with Dr Yu.
Mr Chilcott recalled that on 28/08/2020 he was attempting to sit on the toilet when his ‘back went’ on him. He was stuck on the toilet for 30 mins until he could again stand. He had a hot shower and this relieved his pain somewhat, and he attended the GP within the next few days. He was provided a prescription for analgesia, but he did not take any.”
The MA then documented his present treatment and symptoms before setting out details of his social activities and activities of daily living (ADL’s) as follows:
“Self- Care: No reported impairment of ability to perform activities of self care.
Household duties: Able to perform activities of household duties without assistance, but with simple accommodation. Specifically, this affects hanging out the washing, he breaks this into two lots if there is a significant amount.
Hobbies: Unable to perform some outdoor duties or recreational activities, hobbies, including cycling and dirt bike riding.”
Findings on physical examination were reported as follows:
“On general inspection, Mr Chilcott appeared well and in keeping with the expectations of a man of his age and station…
An examination of the lumbar spine was performed. Inspection of the lumbar spine failed to elicit any swelling, erythema, scarring or other obvious deformity. Mr Chilcott walked with a normal gait. He demonstrated an unimpeded ability to walk on both his heels and toes. There was no atrophy of the lower leg musculature. Palpation of the lumbar soft tissue and bony structures was normal, with no pain or spasm elicited. Testing of range of motion elicited decreased left lateral flexion. Straight leg raise test achieved 70 degrees with the right leg, and 70 degrees with the left leg. Neurovascular examination of the lower limbs elicited altered sensation, affecting left L5 dermatome. The remaining lower limb neurovascular examination was within normal limits.”
He reported on the MRI stating:
“Impression: Loss of the normal lumbar lordosis at the L1/2 level with a moderate broad-based posterior disc protrusion which results in mild central canal and moderate bilateral articular recess stenosis in the vicinity of the descending L2 nerve roots.”
The MA assessed 6% WPI of the lumbar spine.
He explained the reasons for his assessment as follows:
“Lumbar Spine Impairment Calculation. In accordance with Table 15-3 (p 384) – Criteria for Rating Impairment due to Lumbar Spine Pathology, the clinical picture is consistent with a Diagnostic Related Estimate (DRE) Lumbar Category II: Fracture of vertebral body (less than 25). This allows for the allocation of 5-8% WPI when considering the effect on the individuals ADLs.
There is no requirement for additional impairments to be awarded under Table 4.2 – Modifiers for DRE categories following surgery from [the Guidelines].
The Impairment from the applicable DRE and relevant effects on ADLs results in 6% Whole Person Impairment. This is then COMBINED with the impairments resulting from the applicable sections of Table 4.2 of [the Guidelines] resulting in a 6% Whole Person Impairment.”
The MA then commented upon the other medical opinions as follows:
“Mr Chilcott has undergone Independent Medical Examination with assessment of Permanent Impairment with Dr Alan Hopcroft, Orthopaedic Surgeon, on 13/11/2019. In his report, Dr Hopcroft has determined:
‘This patient suffered a significant back injury which I believe was precipitated by the first event of 15 October 2016, which appears to have been the most violent vertical compression force applied to his back, and I believe may well have caused the wedge compression fracture of the L2 vertebra, as x-rays were not undertaken for two years where the changes at the L2 vertebra were described as ‘old:' However, I believe he has also incurred a discal disruption at the L4 / 5 and LS/ S 1 levels) and of those two areas I believe the L4 / 5 disc protrusion is the most significant, as the clinical feature of bilateral knee jerk depression suggests that deduction.’
With respect to his determination of impairment, Dr Hopcroft has concluded:
‘He has a DRE Lumbar Category III impairment of his back with a whole person impairment of 10%. No subtraction from that impairment is required as he had no pre-existing history of injury or symptoms arising from his lumbar spine. With ongoing restrictions in activities of daily living he accrues a further whole person impairment of 2% and therefore has an overall whole person impairment of 12%. However, with a wedge compression fracture of the L2 vertebra he has a DRE Lumbar Category II impairment of his back with an additional whole person impairment of 5%. Using the Combined Values Chart this patient therefore has an overall whole person impairment of 16%.’
Mr Chilcott has undergone Independent Medical Examination and assessment of Permanent Impairment with Dr Robert Ivers, Orthopaedic Surgeon, on 03/11/2020. Dr Ivers determined that:
‘the sequence of events most likely included a compression fracture of the L2 vertebral body, injury to the L2/3 disc and also disruption of at least one of the lumbar discs occurring on 15 October 2016, with subsequent episodes of exacerbation of symptoms, in keeping with the diagnosis of lumbar spondylosis.’
With respect to his review of Dr Hopcroft’s report, Dr Ivers has stated:
‘I agree that the lumbar condition has reached maximum medical improvement, according to the definition available in the Guides to the Evaluation of Permanent Impairment 5th edition. My main point of variation with regard this report is that I cannot identify the criteria utilised for choosing DRE Lumbar category 3 for assessment. Additionally, I do not agree that it is valid to combine two different pathologies in the same spinal segment, for example the lumbar spine. (This is described in paragraph 4.32 from the Guidelines.) It appears that Dr Hopcroft has assessed both the compression fracture and the underlying lumbar pathology, which is not valid under the AMA 5 methodology. I conclude that it is valid to use either the compression fracture or other signs such as radiculopathy (which is required for DRE Lumbar category 3) though it is not valid to utilise both at the same level. (Paragraph 4.7 from the Guidelines…addresses this.) Paragraph 4.30 from the Guidelines indicates that if radiculopathy is present that the DRE is assigned as one category higher. Considering this, I am not able to support a diagnosis of ongoing radiculopathy based on my clinical examination and also my reading of the clinical examination performed by Dr Hopcroft. Consequently ‘elevation’ to a higher category is not appropriate.’
With respect to his determination of impairment, Dr Ivers has indicated:
‘In assessing permanent impairment, I have considered the various components present and find that the assessable components are non-verifiable radicular complaints and the 10% compression fracture at L2. The higher value is to be chosen. I find that both of these components are best assessed under DRE Lumbar category 2 which yields a "base" of 5% WPI. Considering the inconstant nature of the altered sensation, I conclude that the vertebral fracture is the most appropriate condition to assess. Consulting paragraph 4.34 from the guidelines, I find that interference with homecare yields a 2% WPI ‘uplift’, yielding a total impairment of 7% WPI.’
There is a number of differences in the approaches by the two assessors, and each is understandable based upon the findings at the time of examination. I concur with Dr Ivers, that the approach of combining the lumbar fracture and a secondary injury to the lumbar spine is incorrect, and agree that Paragraph 4.7 of [the Guidelines] does cover this.
The neurological assessment of the lower limbs that I undertook elicited a reported altered sensation in the left L5 dermatome. This is ‘non-verifiable’, as the MRI (most recent from 18 June 2021) do not indicate neural compression at this level, but some foraminal stenosis associated with degeneration. There was absence of additional signs of radiculopathy as well. As such, I have determined that the most appropriate manner of assessing Mr Chilcott’s lumbar condition is the L2 fracture.
I note that Dr Ivers has reported that there was a 10% compression of the L2 vertebral body, however the imaging reports all indicate that the level of compression varied between 20% and 25%. The most recent MRI of 18/06/2021 indicates that there is a 20% anterior compression, and therefore this is deemed to be the most relevant to assessing Mr Chilcott’s current level of impairment.”
The appellant submits as follows:
“The CT scan recorded, in the conclusion of the radiologist:
‘Features suggestive of an old anterior wedge compression fracture of L2 with up to 10% vertebral body height loss. The lumbar spine alignment is maintained with milld generative changes, particularly at L2/L3. Broad-based posterior osteophyte disc complex causing mild spinal canal stenosis at L1/L2. No evidence of neural exit foraminal narrowing on either side. Mild extension of the L4/L5 intervertebral disc into the subarticular recess causing contact with both L5 nerve roots. Mild extension of the L5/S1 intervertebral disc into the subarticular recess causing contact with both S1 nerve roots.’
This record is drawn from the report of Dr Alan Hopcroft, who observed that the old anterior wedge compression fracture was the legacy of the injury of 25 October 2016. This conclusion was not criticised by the MA. The significance of the wedge fracture, as distinct from the discal damage also recorded in the scan, was central to matters addressed by medical practitioners, including the MA…
Dr Hopcroft also noted that when the Appellant was lying supine, deep reflexes at both knees were significantly depressed…
Dr Hopcroft's opinion regarding the Appellant's injury was expressed in the following terms:
‘This patient suffered a significant back injury which I believe was precipitated by the first event of 15 October 2016, which appears to have been the most violent vertical compression force applied to his back, and I believe may well have caused the wedge compression fracture of the L2 vertebra, as x-rays were not taken for two years where the changes at the L2 vertebrae where described as ‘old’. However, I believe he has also incurred a disc disruption at the L4/5 and the L5/S1 levels, and of those areas, I believe the L4/5 disc protrusion is the most significant, as the clinical feature of bilateral knee jerk depression suggests that deduction.’
It is emphasised that these conclusions were not disputed by experts conducting subsequent examinations. The disc disruption at the L4/5 and the L5/S1 levels led Dr Hopcroft to the view that the Appellant had a DRE lumbar category III impairment warranting a WPI of 10%. Added to this, Dr Hopcroft found a 2% additional impairment reflecting restrictions in the Appellant's activities of daily living.
Dr Hopcroft went on to allocate further impairment in respect of the wedge compression fracture at L2. This fracture warranted, in the doctor's opinion, a finding that, in the light of the pathology at that level and its relationship with the 2016 injury, it should allocate a lumbar category II impairment, with an additional WPI of 5%. Thus, after the necessary calculation, WP I was 16%...
Dr Ivers agreed with Dr Hopcroft that the October 2016 injury caused the anterior compression fracture at L2 [and] agreed that there was an injury to at least one of the lumbar discs.
Dr Ivers expressly noted that not only was the history that he received similar to that recorded by Dr Hopcroft, but also the findings on clinical examination were similar to those noted by Dr Hopcroft one year earlier. The importance of this is that Dr Hopcroft had noted sciatica affecting both lower limbs [and] significant depression of reflexes… Thus there was a basis for Dr Hopcroft's allocation of DRE category III.
Despite commenting on the similarities referred to above, Dr Ivers considered that he was unable to allocate the lumbar category III. Further, Dr Ivers considered that he was inhibited by paragraph 4.7 of the Guidelines to use both a compression fracture and radiculopathy at the same level in order to reach a conclusion that Category III was the appropriate allocation.
Paragraph 4.7 of the Guidelines reads:
‘If an assessor is unable to distinguish between two DRE categories, then the higher of those two categories should apply. The reasons for the inability to differentiate should be noted in the assessor’s report.’
Dr Hopcroft has combined the lumbar fracture with a secondary injury to the lumbar spine….
The MA used the word understandable to describe the approach taken by Dr Hopcroft…
In preferring the approach taken by Dr Ivers, that is, that it was inappropriate to combine the compression fracture at L2 with discal damage elsewhere in the lumbar spine, the MA concurred with Dr Ivers that this approach was prohibited by paragraph 4.7 of the guidelines. But this is incorrect. Paragraph 4.7 applies in the circumstances where the assessor has difficulty in determining which of two lumbar categories is appropriate. In those circumstances, the assessor should allocate the higher category, but is expressly required to give reasons for his so doing.
There is nothing in paragraph 4.7 that inhibits the approach taken by Dr Hopcroft. Accordingly, the MA, like Dr Ivers, has applied incorrect criteria in coming to the conclusion that the compression fracture at L2, regarded by both Dr Hopcroft and by Dr Ivers as significant, be the basis for an increased assessment.
The finding of a similarity between the examinations of all three experts is irreconcilable with the rejection of Dr Hopcroft's allocation of DRE category III.”
What the appellant has overlooked is the provisions of paragraph 4.32 of the Guidelines which states:
“Within a spinal region, separate spinal impairments are not combined. The highest-value impairment within the region is chosen. Impairments in different spinal regions are combined using the combined values chart (AMAS, pp 604-06).”
Dr Hopcroft erred in providing his assessment of permanent impairment of the appellant's lumbar spine as it was not open to him to combine the two separate spinal impairments in the same spinal region in accordance with paragraph 4.32 of the Guidelines.
As Dr Ivers noted:
"It appears that Dr Hopcroft has assessed both the compression fracture and the underlying lumbar pathology, which is not valid under the AMA 5 methodology. I conclude that it is valid to use either the compression fracture or other signs such as radiculopathy (which is required for DRE lumbar category 3) though it is not valid to utilise both at the same level. (Paragraph 4. 7 from the Guidelines ... addresses this)".
The MA correctly in our view concurred with Dr Ivers, that the approach of combining the lumbar fracture and a secondary injury to the lumbar spine is incorrect.
Paragraph 4.7 of the Guidelines is only relevant when an assessor is unable to distinguish between two DRE categories.
In this case, the MA’s findings on examination reflected a DRE II category. As he said:
“The neurological assessment of the lower limbs that I undertook elicited a reported altered sensation in the left L5 dermatome. This is ‘non-verifiable’, [our emphasis] as the MRI (most recent from 18 June 2021) do [sic] not indicate neural compression at this level, but some foraminal stenosis associated with degeneration. There was absence of additional signs of radiculopathy as well…”
Paragraph 4.32 of the Guidelines creates the rule that separate spinal impairments cannot be combined within the same spinal region. Paragraph 4.7 of the Guidelines dictates how an assessor is to deal with the issue when there is more than one spinal impairment in the same spinal region.
The MA considered both the non-verifiable radiculopathy (DRE lumbar category II) and the 20% anterior compression fracture to the L2 vertebrae (DRE lumbar category II). He decided that the fracture of the L2 vertebrae was the most relevant impairment in assessing the appellant's current level of impairment due to the fact the radiculopathy was non-verifiable.
The two impairments of the same spinal region both fell within the criteria of DRE lumbar category II.
The MA was correct to only apply an assessment of WPI for one of the spinal impairments in the appellant's lumbar spine.
We do not accept the appellant’s submissions. The MA has not erred and he has in fact applied the correct criteria in applying paragraph 4.32 of the Guidelines, noting that paragraph 4.7 was not applicable in this case.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 August 2021 should be confirmed.
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