Darby v EJT Packers Pty Ltd
[2021] NSWPICMP 168
•15 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Darby v EJT Packers Pty Ltd [2021] NSWPICMP 168 |
| APPELLANT: | Phillip Darby |
| RESPONDENT: | EJT Packers Pty Ltd |
| APPEAL PANEL: | Member Paul Sweeney Dr Phillipa Harvey-Sutton Dr John Ashwell |
| DATE OF DECISION: | 15 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker appeals assessment by Medical Assessor (MA) of lumbar spine following surgery; alleges error in failure to find radiculopathy and surgery at a second level for the purpose of Table 4.2 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and that self- care was impaired for the purpose of assessment of activities of daily living (ADLs); Held - MA did not err in determining that the definition of radiculopathy in the Guidelines was not met or that the surgery was undertaken at one level; no demonstrable error in respect of ADLs; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 August 2021, Phillip Darby (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA, formerly an Approved Medical Specialist). The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 July 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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 was a long-term employee of EJT Packers Pty Ltd (the respondent). During the course of his employment, which involved arduous physical work, he developed pain in his low back and right leg.
In January 2014, the appellant sought treatment from his general practitioner, Dr Buckley. When conservative treatment failed to ameliorate his symptoms, he was referred to a neurosurgeon, Dr Gautam Khurana, who performed an L4/5 laminectomy at the Epworth Richmond Hospital on 31 October 2014. The appellant has made an incomplete recovery from the surgery.
The respondent accepted liability for the appellant’s injury and he has been paid weekly payments of compensation in accordance with the Workers Compensation Act 1987 (the 1987 Act). By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the 1987 Act. His claim is based on the opinion of Dr Kossmann, an orthopaedic surgeon.
Dr Kossmann saw the appellant at the request of his solicitors for the purposes of assessing whole person impairment (WPI). Dr Kossmann concluded that the appellant suffered 17% WPI as a result of the injury. He assessed the appellant as DRE III which entitled him to 10% WPI. The doctor opined that the appellant had been operated on at two levels and that he continued to experience radiculopathy for the purposes of Table 4.2 of the Guidelines. He assessed an additional 3% WPI to reflect the impact of the injury on the appellant’s activities of daily living (ADLs).
Dr Frank Machart, an orthopaedic surgeon, saw the appellant at the request of the respondent on 8 January 2020 and provided a report of 15 January 2020. Dr Machart concluded that the appellant had suffered an aggravation of constitutional degenerative changes by reason of his work. He expressed the opinion that the appellant was unfit for his pre-injury work but fit for light duties.
Dr Machart also found radiculopathy on examination. He assessed 14% WPI. He also assessed the appellant as DRE III. He added 3% for radiculopathy in accordance with Table 4.2 of the Guidelines and 2% WPI in respect of the impact of the injury on the appellant’s ADLs. These figures total 15% WPI. However, Dr Machart made a deduction of 10% pursuant to s 323(2) of the 1998 Act in respect of pre-existing degenerative changes in the appellants lumbar spine, which were not work-related. Thus, his final assessment was 14% WPI.
The difference of opinion as to WPI between Dr Kossmann and Dr Machart gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. Accordingly, the Registrar of the former Workers Compensation Commission appointed an MA to assess the dispute. It is from Dr Meakin’s medical 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. Neither party had sought a further examination by a medical practitioner who was a member of the panel. Further, the panel was unable to find error in the examination or findings of the MA which would provide the legal foundation for a further medical examination.
EVIDENCE
The appeal panel has before it all the documents that 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 that 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’s allegation of error by the MA is threefold. First, he submitted that the MA erred in not determining that the appellant suffered radiculopathy in his right lower limb.
The appellant noted that both Dr Kossmann and Dr Machart had found radiculopathy on their examinations. He continued:
“Dr Meakin found there to be asymmetrical loss of range of motion, partial sensory loss and a symmetrical wasting (page 3 of the certificate) yet declined to make an assessment for radiculopathy.
His failure to do so seems to be on the basis that the above either did not follow an anatomically spinal nerve root distribution or it failed to correspond to the surgical pathology.”
The appellant asserted that this was an error as cl 4.27 of the Guidelines “does not stipulate that it must follow a known nerve root distribution” or to the “surgical pathology”. Rather:
“the radiculopathy must be measured by reference to malfunction of a ‘spinal nerve root or nerve roots’ (cl 4.27)”.
The second allegation of error by the appellant is that the MA failed to correctly apply cl 4.37 “by failing to award a further 1% for surgery at a second level”. He argues that the surgery was conducted at the L4 and L5 levels. In this respect he refers to the operation report and submits that it is obvious that L4 and L5 partial laminectomies were carried out by the surgeon.
Thirdly, the appellant argued that the MA had failed to properly engage with cl 4.34 when assessing ADLs. He argued that the MA failed to take an adequate history in relation to self-care and failed to refer to the worker’s statement in which he identified difficulties with self-care tasks.
The respondent submitted that the assessment of permanent impairment involves the clinical assessment of the worker on the day “taking into account the claimant’s relevant medical history and available relevant medical information”. It argues that the MA set out his findings on examination in detail. It continues:
“He was clearly alert to the factors required to assess radiculopathy and dealt with each of the criteria in 4.27 when setting out his findings.”
In respect of ADLs, the respondent states that the history recorded by the MA does not appear to be “analogous with a finding of 3%”.
In respect of the issue of whether surgery was undertaken at two levels, the respondent states:
“Surgery is generally considered to be at the L4/5 area rather than L4 and L5. As to whether surgery at L4/5 is considered secondary surgery, the respondent will defer this issue to the discretion of the medical members of the appeal panel.”
The respondent submitted that the determination of the MA should be confirmed.
FINDINGS AND REASONS
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.
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.
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 medical assessment certificate 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 (Kocak) 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 Kocak, 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 Kocak 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).
Radiculopathy
The guidelines direct an MA to award WPI in respect of the level of the lumbar spine that gives rise to the greatest impairment. Cl 4.32 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 (AMA5, pp 604-06).”
Clause 4.27 of the Guidelines defines radiculopathy as follows:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
• loss or asymmetry of reflexes
• muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
• reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
• positive nerve root tension (AMA5 Box 15-1, p 382)
• muscle wasting – atrophy (AMA5 Box 15-1, p 382)
• findings on an imaging study consistent with the clinical signs (AMA5, p 382).”
Clause 4.28 is also relevant. It states:
“Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
The MA carried out a careful examination of the appellant for the purpose of verifying the presence and nature of radiculopathy. He recorded the following:
“All deep tendon reflexes of the right and left lower extremities are symmetrically present and equal but reduced. On examination of lumbar spine range of motion, he points to the lower third of the lumbar spine posteriorly as the site of discomfort. At the time of today’s sensory examination, there is a partial sensory loss over the posterolateral aspect of the proximal thigh area to just above the knee.
There is a large Keratoacanthoma on Mr Darby’s right forearm which is being removed by his local practitioner in two weeks’ time, along with small lipoma on his posterior left upper thoracic back. There is no asymmetrical wasting of the right and left thigh measured at 10cm above the patella. The right calf is one half centimetre reduced as compared to the left. There is a straight leg raising test on the right and left.”
The AMS continued:
“There is symmetrical equal right and left great toe power referencing an extension and subtalar joint eversion and inversion. There is a full range of right and left ankle and subtalar joint and greater and lesser toe movement at the time of today’s examination.”
On the basis of this examination, the MA concluded that the definition of radiculopathy set out above was not met. He stated:
“There is no loss of asymmetry of reflexes or evidence of muscle weakness or muscle atrophy that can be anatomically localised to an appropriate spinal nerve root distribution. There is a negative nerve root tension sign on the right and left side. The L2 partial sensory loss noted on physical examination of the right leg does not relate to the site of the surgical pathology. In my opinion the definition of radiculopathy is not met.”
The thrust of the appellant’s submission in relation to radiculopathy is that the MA found both a partial sensory loss and wasting of the left calf which, he argues, should have formed the basis for a finding of radiculopathy. It must be borne in mind that the MA was required to assess the region of the lumbar spine that gave rise to the highest value assessment in accordance with cl 4.32. In this case, that was clearly the level at which Dr Khurana had performed a L4/5 decompressive laminectomy. The MA specifically states that the sensory loss that he found on examination did not emanate from the L4/5 level. To reiterate, the MA states:
“The L2 partial sensory loss noted on physical examination of the right thigh does not relate to the site of the surgical pathology.”
Contrary to the appellant’s submission, it was necessary in this case for the appellant’s sensory loss to relate to an appropriate spinal nerve distribution and to the “surgical pathology” at L4/5 as this was the level within the lumbar spinal segment that would give rise to the highest-value impairment assessment. It is impermissible to add a radiculopathy emanating from another level of the lumbar spine to the level chosen as providing the “highest-value impairment within the region” for the purpose of assessing WPI.
This being the case it is readily apparent that the MA found no relevant major sign of radiculopathy. In the opinion of the panel, on the findings of his examination, he was correct to conclude that the definition of radiculopathy in 4.27 was not met.
While both Dr Kossmann and Dr Machart asserted that the appellant suffered a radiculopathy in his right leg, neither doctor recorded their findings on examination in as much detail as the MA. In his report dated 15 January 2020, Dr Machart recorded a diminished “right hamstring and ankle reflexes”. Patently, those signs were not present at the time of the MA’s examination which took place some 12 months later. The MA specifically recorded that all lower limb reflexes were symmetrically present. Although Dr Kossmann recorded that the appellant had symptoms radiating from his back to his buttock, he did not set out in detail the basis of his findings of radiculopathy.
Dr Meakin considered both these reports in his MAC. He noted that Dr Kossmann had assessed the appellant on the basis that he suffered radiculopathy. He reiterated his opinion that the “definition of radiculopathy has not been fulfilled”. In respect of Dr Machart’s report he noted that he found a diminished right hamstring and ankle jerk, but evidently those findings were not reproduced on his examination.
The panel has concluded that the appellant has not established error in the determination of the MA or in his examination and findings and that the definition of radiculopathy in cl 4.27 of the guidelines was not met in this case.
Activities of daily living
Clause 4.33 of the Guidelines is as follows:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.
Relevantly, the MA noted that following surgery the appellant was able to return to light duties for a period of two years before his position “was terminated in 2016”. He continued:
“Mr Darby lives in a home in Wentworth near Mildura. He is married and the father of two children and has five grandchildren. His wife cares for the household chores and the garden with the assistance of their daughter. He does not perform any recreational sporting activities and only drives short distances.”
He expressed the following opinion:
“With reference to item 4.34 to 4.36 of the Guides, it is my opinion that a 2% whole person impairment may be added to the base impairment for impairment of activities of daily living.”
The appellant alleged that the MA erred in failing to take an adequate history in respect of self-care and/or failed to refer to the appellant’s statement. In respect of the latter, it is noted that the appellant stated that his wife has to cut his toenails.
The panel would not assume that the MA overlooked the appellant’s statement. He carefully records and summarises all of the relevant medical evidence in the case in his MAC. The assumption underlying the appellant’s criticism of the findings of the MA in relation to ADLs is essentially based on his failure to record that one aspect of the evidence. But as the Guidelines make clear the allocation of WPI for ADLs is not “solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.”
In the opinion of the panel, it was clearly open to the MA to conclude that 2% WPI was an appropriate reflection of the impact of injury on the appellant’s ADLs in the circumstances of the case. The MA’s examination and the medical evidence does not suggest that it is a case where the appellant is incapable of self-care. It may be that he requires cutting of his toenails from time to time. That fact alone, however, does not establish an entitlement to an award of WPI.
Clause 4.35 of the Guidelines states that 3% WPI is to be awarded:
“if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected.”
The MA was entitled to assume on the basis of his clinical findings that the appellant could perform these activities. After all, he had taken a history that the appellant had worked post-operatively in alternative employment until his position was terminated in 2016.
In respect of both radiculopathy and ADLs, the MAC clearly reveals the actual path of the MA’s reasoning. He is not required to adjudicate on other reports but to give his opinion on the issue referred for assessment. He has, therefore, complied with the instruction from the High Court in Kocak in respect of the adequacy of reasons.
Surgery at two levels
The final ground of appeal is that the MA erred in his conclusion that the operative procedure performed by Dr Khurana was at one level. The appellant argues that the Guidelines should be given “a natural, ordinary and literal meaning”. If that is done, the operation was at two levels as Dr Kossmann stated in his report.
The operation report of Dr Khurana records the following relevant matters:
“Diagnosis: symptomatic L4/5 stenosis (right greater than left)
Procedure: L4, L5 partial laminectomies bilateral rhizolysis
The body of the report confirms that the surgery took place at the L4/5 disc space.”
He continues:
“L4 and L5 partial laminectomies were carried out. There was very thick dorsal compressive soft tissues. Rhizolysis was carried out bilaterally without any adverse events introspectively.”
In the opinion of the panel, the operation report and the radiological evidence is only consistent with the conclusion that the surgery was performed by Dr Khurana at one level of the lumbar spine, namely L4/5. As the operation was for the purpose of relieving compression of the L4 nerve, the doctor removed the bony lamina from the lower surface of L4 and the upper surface of L5. The entirety of the procedure was at one level, L4/5.
AMA 5 and the Guidelines adopt the language of medicine. Surgery of the lumbar spine can be conducted at one or more levels being at L5/S1, L4/5, L3/4, L2/3, and L1/2. Each constitutes a distinct level. Laminectomies at the L4/5 level, involving the removal of the lamina above and below that disc space and involving the lamina of L4 and L5, is surgery at one level and not two as the appellant’s submissions suggest. Similarly, a fusion of the disc space between the L4 and L5 vertebrae is a one-level fusion.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 July 2021 should be confirmed.
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