Cottom v Scone Race Club Limited
[2022] NSWPICMP 70
•31 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cottom v Scone Race Club Limited [2022] NSWPICMP 70 |
| APPELLANT: | Gregory James Cottom |
| RESPONDENT: | Scone Race Club Limited |
| APPEAL PANEL: | Paul Sweeney Dr Drew Dixon Dr Michael Davies |
| DATE OF DECISION: | 31 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker appeals from assessment of Medical Assessor (MA) in respect of his failure to assess peripheral nerve injury of right lower extremity and consequential scarring both of which had been assessed at 0%; worker sought to adduce post-Medical Assessment Certificate (MAC) statement as fresh evidence; the statement addressed the MA’s alleged failure to examine aspects of his right leg and to carry out a proper examination; Held- that as statement was plainly inconsistent with MAC it should not be admitted; no evidence to support worker’s assertion that MA erred in his assessment of peripheral nerve injury or scarring; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 November 2020, Gregory James Cottom (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA, formerly Approved Medical Specialist). The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 October 2020.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· 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 grounds 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).
RELEVANT FACTUAL BACKGROUND
The appellant suffered injury when his right foot slipped and he twisted his right knee while removing rubbish from a garbage bin in the course of his employment with Scone Race Club Limited (the respondent) on 23 May 2008. He was treated at the Scone Hospital and the Maitland Hospital. He was diagnosed with a DVT and prescribed Clexane and Warfarin.
When the appellant’s knee symptoms did not improve he was referred to Dr Harbury, an orthopaedic surgeon at Maitland. On 17 September 2008, Dr Harbury performed an anterior cruciate ligament reconstruction. While the appellant’s knee stability improved following surgery, he continued to experience swelling and pain in his knee.
On 2 March 2010, Dr Harbury expressed the opinion that the appellant had likely suffered injury to the chondral surfaces of his knee in the injury and that he was unsuitable for hard physical work. He referred the appellant to Dr Tame, a pain specialist. He thought there may be an “element of neuropathic pain” causing the appellant’s symptoms and suggested a trial of Synvisc injections. and “given his significantly maladaptive pain thoughts” four to six sessions of psychology.
When the appellant’s symptoms did not abate following the treatment prescribed by Dr Tame, Dr Harbury suggested further surgical intervention. He referred him to Dr Peter Mitchell, an orthopaedic surgeon, for a second opinion.
Dr Mitchell expressed the opinion, in a report dated 30 August 2010, that the appellant’s pain was most likely emanating from his patella. He also said this:
“I must admit I get the feeling that a lot of Greg’s symptoms may be neuropathic in nature and that no intervention would be particularly successful”.
On 18 May 2011, Dr Harbury carried out a total right knee replacement at Warner’s Bay Private Hospital. While the surgery was technically successful the appellant complained of continuing symptoms in his knee, which Dr Harbury thought were “sympathetically maintained symptoms, likely in association with a neuroma”. He referred the appellant back to the Hunter Pain Clinic where he came under the care of Dr Prickett. Dr Prickett diagnosed neuropathic pain syndrome. He treated the appellant with Lyrica.
The appellant then saw Dr Mark Russo at the Pain Clinic, who recommended that the appellant undertake “pulsed radiofrequency neurotomy of the lumbar sympathetic chain to eliminate the remainder of his neuropathic pain”. Ultimately, this procedure did not provide lasting relief of the appellant’s knee pain.
On 7 September 2012, Dr Russo suggested that if the appellant’s symptoms proved “truly refractory” a trial of spinal cord stimulation might be appropriate. This suggestion was not pursued.
On 19 February 2014, Dr Tame saw the appellant again. He diagnosed pain in his lumbar spine area and “between the hip and the knee on the right hand side”. He thought this may relate to his lumbar facet joints and suggested that “there may be significant improvements possible by treating his facet joints”.
On 30 November 2015, the appellant made a claim for permanent impairment compensation on the respondent’s insurer. He relied on an assessment of whole person impairment (WPI) in a report of Dr Mastroianni, a consultant occupational physician, dated 13 October 2015. By that report, the doctor assessed 20% WPI reflecting his finding that the appellant had a “fair result” from knee replacement surgery in accordance with the method of assessment prescribed in Chapter 17 AMA 5.
The respondent’s insurer accepted the claim and the parties entered into a Complying Agreement by which the respondent agreed to pay the appellant monetary compensation based on 20% WPI.
In subsequent proceedings between the parties the appellant became aware of a report of Dr Isaacs, an orthopaedic surgeon, who had seen him at the request of the respondent’s insurer on 14 December 2015. By a report of that date he assessed 41% WPI. He assessed the appellant as having a “poor result” from his total knee replacement which resulted in 30% WPI in accordance with Chapter 17 AMA 5.
Dr Abraham also assessed 15% WPI in respect of neuropathic pain. He stated:
“Mr Cottom has altered sensation along the dermatome distribution of L3, L4, L5 and S1 on the right side, some warmth in the right and wasting in the right calf. According to Table 17-37, impairment due to nerve defect, since his femoral and sciatic nerves are involved, the whole person impairment due to the neuropathic pain is assessed at 15%.”
By these proceedings, the appellant sought an assessment of WPI by an MA for the purpose of determining whether he was either a worker of higher needs or a worker of highest needs as those terms are defined in s 32A of the Workers Compensation Act 1987 (the 1987 Act). As that involved a medical dispute as that term is defined in s 319 of the 1988 Act, the Registrar of the former Workers Compensation Commission (WCC) appointed Dr Mark Burns (who was then an Approved Medical Specialist) to assess the dispute.
On 21 October 2020, Dr Burns issued a MAC certifying that the appellant suffered 20% WPI as a result of the injury of 23 May 2008. He assessed the WPI of the appellant’s right lower extremity (knee) at 20%. He assessed scarring in accordance with the TEMSKI table as 0%. It is from that assessment that the appellant appeals.
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 unnecessary for the worker to undergo a further medical examination. The panel noted that the appellant sought a further medical examination by a member of the panel. However, the panel was unable to find a demonstrable error or the application of incorrect criteria on the face of the MAC. In those circumstances, the case law precludes an examination by a member of the panel who has appropriate medical qualifications.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant sought to admit as evidence on the appeal his supplementary statement dated 16 November 2020. By that statement, the appellant says that he “felt that Dr Burns would not listen” to him on the appointment. He states that the MA would “not listen to important things that I was telling him”. While the appellant says that he explained to the MA that he had numbness from his “right knee down the outside of my leg and into the top of my foot and ankle”, the MA ignored his answer and only examined the inside of his leg. He continues:
“When I looked at his report I noticed that he had dismissed any nerve problem in my leg and feel that this is because he ignored where I was telling him where the numbness was.
I also told him that I get ‘hot foot’ and all he said to me was ‘yeah well your foot is not hot now’.”
The appellant also says that the scar on his leg “gets discoloured sometimes and turns a red/white blotchy colour. My scar is numb and is longer when I bend my knee.” He maintains that he did not get a “proper assessment done by Dr Burns”.
The respondent submits this is an entirely “subjective view about the examination” which is of little assistance in determining the issues in dispute. It argues that statement does not show either demonstrable error or the application of incorrect criteria.
In the opinion of the panel the statement is of no assistance. The panel is unable to accept the appellant’s allegation that the MA ignored what he was being told during the examination or that he did not examine aspects of the right leg. They are not consistent with the detailed history and examination recorded in the MAC.
As it is integrally connected to the appellant’s submissions, the panel will deal with the statement further below.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel. The appellant relies on three separate grounds of appeal. The first ground that the Referral and the MAC are ultra vires does not fall within the grounds of appeal prescribed by s 327(3) of the 1998 Act and the panel does not have power to consider it. The alleged error precedes the issue of the MAC. Patently, it cannot constitute either demonstrable error or the application of correct criteria.
The second ground of appeal asserts that Dr Burns “did not examine, at all, for peripheral nerve disorder on the lateral aspect in any other place”. [sic]. He only tested for “loss of sensation” on the lateral aspect of the leg or knee in the vicinity of the scar.
The appellant then asserts that, after repeated testing, the MA found “less sensation in the entire leg” compared to the left side. He submits that this absence of sensation is consistent with the presence of peripheral nerve disorder.
This error is further confirmed, so the appellant argued, by Dr Burn’s clinical finding that the “distribution of his pain did not follow either the sciatic or femoral nerve”. The MA’s focus on “pain” rather than “numbness” and his failure to “examine and record any findings of numbness on the lateral leg where he was directed by the appellant” demonstrated a constructive failure to exercise jurisdiction.
Similarly, the findings demonstrate that the MA was fixated on the “event of ‘injury’” rather than its consequences. Thus, he did not examine the appellant in accordance with the Referral which required him to assess the WPI that resulted from injury to his right lower limb. He was, therefore, “fixated” on the wrong question.
Thirdly, the appellant asserts that there was a constructive failure to exercise jurisdiction in respect of TEMSKI scarring. After considering each of the criteria for 1% in the table at 14.1 of the Guidelines, the appellant asserted that:
“If Dr Burns, logically applied the “best fit” mandate, he should have assessed 1% WPI under TEMSKI. This is both “logically reasonable” and ‘\constructive failure to exercise jurisdiction ‘”.
In respect of the appellant’s statement dated 20 November 2020, it is submitted that it demonstrates that the MA “did not examine the lateral aspect of his right leg” it is therefore evidence of a “technical failure to assess peripheral nerve injury”.
In respect of ground 2, the respondent submitted that there was no evidence that the MA had misunderstood the task he was to undertake or erred in any way. There was, therefore, “no error capable of being demonstrated”. In respect of ground 3, the respondent says that the appellant’s assertions are:
“Attempts to elevate cavilling with the clinical judgement of Dr Burns to the level of “demonstrable error” or “incorrect application of criteria” when there is nothing of substance to support the allegation.”
DISCUSSION AND FINDINGS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
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 role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot, it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
Failure to adequately examine
On 16 September 2020, a delegate of the Registrar of the then WCC referred the following dispute for assessment of WPI arising from an injury on 23 May 2008:
“Right lower extremity (right knee, peripheral nerve damage and TEMSKI scarring)”
In respect of peripheral nerve disorder, the MA reported the following symptoms on examination:
“Mr Cottom reported that he has pain in the region of his right knee, which is constant and varies in intensity. It is worse with activity such as gardening or prolonged walking. The pain is mostly around the front of the knee but can radiate down towards the foot and his foot can become quite hot. He reported numbness on the outside of the knee and around the patella. This did not follow the distribution of any peripheral nerve.
He states that he also has significant pain at night which tends to wake him up. Functionally he can currently walk about 200-250 metres before he must stop. He has difficulty going up and down stairs and tends to lead with his good leg.”
After a clinical examination of the knee, the MAC records that the MA carried out a neurological examination as follows:
“Neurological examination of the right leg revealed no evidence of abnormal sensation above the knee. During formal testing below the knee he reported some decrease in sensation over the medial aspect of the scar and just above the scar. There was also some further reported decrease in sensation over the lateral aspect of the scar just below the region of the scar going down towards the calf muscles. He initially reported normal sensation in the right foot.
On repeated testing he then stated that it felt like the entire leg below the knee had been covered in plastic. There was less sensation in the entire leg below the knee including the foot that there was on the left side. Sensory testing did not follow a peripheral nerve distribution or a nerve root distribution. I note that in the past he has been treated for neuropathic pain, but he stated that Dr Tame was uncertain as to the cause for this pain in the right leg as so was Dr Russo.”
The MA expressed the following opinion in respect of neuropathic pain:
“With respect to his ongoing pain involving the right leg I noted today that his history and examination findings did not support a peripheral nerve injury. The distribution of his pain does not follow either the sciatic or femoral nerve or a single branch of either nerve. His examination findings today were also inconsistent as he initially reported only decreased sensation in the region of the scar but then stated that he had decreased sensation as if his leg had been wrapped in plastic below the knee on the right side. This is more of a stocking distribution and would not be associated with a peripheral nerve injury.
In conclusion I believe that his current findings do not support either a nerve root injury in the lumbar spine or a peripheral nerve injury in the leg. I therefore believe that he has no assessment under any peripheral nerve injury.”
The above excerpts from the MAC plainly demonstrate that the appellant’s argument that the MA failed to examine him in accordance with the Referral is completely bereft of any factual foundation. Similarly, there is no factual basis for the assertion that the MA failed to examine the area of the lateral leg where he was directed by the appellant. On the contrary, the MA tested the entirety of the right leg for neurological signs including sensory loss. He reported “repeated testing” of the right lower limb demonstrated loss of sensation “in the entire leg below the knee.” Testing the entirety of the right limb below the knee for sensory loss must involve testing of the lateral aspect of the leg.
Then, the appellant asserts that the finding of sensory loss below the knee on the right side is consistent with the presence of “peripheral nerve disorder”. That flies in the face of the finding of the MA that it was not consistent with peripheral nerve disorder. The MA was at pains to point out that the sensory testing did not “follow a peripheral nerve distribution or a nerve root distribution”.
Contrary to the appellant’s submission, the MA was not “fixated” on “injury”. He dealt extensively in the MAC with the “neuropathic pain” aspect of the Referral. There is nothing to suggest any error on his examination. His conclusion on neuropathic pain was the only conclusion open on the basis of his clear findings. In dealing with Dr Isaacs report of 14 December 2015, the MA returned to the issue of neuropathic pain as follows:
“With respect to the altered sensation in the right leg below the knee he reported that Mr Cottom had decreased sensation in the distribution of L3, L4, L5 and S1 on the right side. He believed that these could have been as being associated with nerve deficit in the femoral nerve and sciatic nerves. He therefore made a whole person impairment assessment for neuropathic pain of 15%. Again, there is no reasoning how he came to this decision and no reasoning as to where the number was in fact taken from. I disagree with Dr Isaac’s methodology as there was no evidence of peripheral nerve injury involving the right leg and no evidence of radiculopathy in the right leg involving the L3, L4, L5 and S1 nerve roots. I believe there is no assessable impairment for the chronic pain in his right leg, which does not follow either a nerve root distribution or a peripheral nerve distribution. Under the current assert Guidelines chronic pain is not assessable.”
Quite apart from the absence of neurological findings made by the MA, there is no evidence in the long clinical record in this case, which is summarised above, that the appellant suffered injury to a peripheral nerve in the right leg in the incident or as a consequence of the subsequent surgery. None of the treating doctors, including several pain specialists, have recorded findings consistent with such an injury. Dr Mastroianni, who assessed the appellant in the 2015 recorded no findings consistent with a nerve deficit in the right lower limb. Dr Isaacs is the only doctor who suggests the contrary. As the MA points out his assessment and his methodology is difficult to understand. It does not undermine the clear findings in the MAC.
Conversely, there are tentative suggestions of problems emanating from the lumbar spine in the evidence. But a lumbar spine injury is not part of the medical dispute referred for assessment.
The appellant’s submission on this issue has no basis in the medical evidence in the case. To the extent that they attempt to assert error or the application of incorrect criteria they appear to be based on the subjective impressions of the appellant as recorded in his supplementary statement. As indicated above, much of that statement is inconsistent with the MAC. It is difficult to imagine circumstances in which the recollection of a worker recorded a month after the consultation would cast doubt on, or be preferred to, the history, complaints, and examination findings recorded by the MA. More so in this case, where the MA has explored each of these areas in detail and set out his findings with commendable clarity.
In a similar vein in Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor[2008] NSWCA 88 at [59] the Court of Appeal said this:
“Those dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.”
The panel determines that the supplementary statement of the worker is irrelevant. It should not be admitted. In its absence, there is no real basis for the second ground of appeal. The argument that the MA failed to address the referral, or adequately examine the applicant, or reached incorrect conclusions on the basis of his findings must fail.
Scarring
The MA gave a detailed account of his examination of the scar over the front of the appellants right leg. He recorded:
“Mr Cottom had a 13cm vertical scar over the front of his left leg. The scar was barely visible. There was a slight depigmentation in the scar itself but there was no evidence of atrophy in the scar, no contour defect, and no attachment to the underlying structures. Additionally, the scar did not have any impact on his activities of daily living. He reported that he was having no treatment for the scar.
He was not particularly conscious about the scar but was able to localise it. I note that it would have been difficult to see the scar with normal clothing from any distance. In all it was an excellent scar for the operation that he had carried out”.
The table attached to the appellants submissions ignores or misrepresents the findings of the MA. The table records, for example, that the MA found “minor contour defect” whereas he recorded “no contour defect”. In respect of “adherence” it records a “loss of sensation” (which is irrelevant) whereas the MA found “no attachment to the underlying structures”. In respect of the activities of daily living, the table records that “the applicant’s ability to walk is limited” whereas the MA found that the scar “had no impact” on the appellant’s activities of daily living.
It is true that there is some overlap between the criteria for 0% and 1% WPI in Table 14.1. However, the MA’s findings are consistent with 0% WPI. More importantly, it was the MA to assign a “best fit” for the scar on the basis of his findings. It is not suggested that his description of the scarring is incorrect. This led him to apply Chapter 14.6 of the Guidelines which states:
“Note that uncomplicated scars for standard surgical procedures do not, of themselves rate and impairment.”
In the opinion of the panel it was open to the MA to make such a determination. He had the considerable advantage of seeing the scar. There was no competing assessment of WPI for scarring in the evidence before him. The MA has provided reasons for his assessment which comply with the instruction in Wingfoot. As the appellant has not proved error this ground of appeal must also fails.
For these reasons, the appeal panel has determined that the MAC issued on 21 October 2020 should be confirmed.
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