De La Rosa v Dominion Global Pty Ltd ATF Dominion Global Unit Trust
[2024] NSWPICMP 206
•9 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | De La Rosa v Dominion Global Pty Ltd ATF Dominion Global Unit Trust [2024] NSWPICMP 206 |
| APPELLANT: | Jefferson De La Rosa |
| RESPONDENT: | Dominion Global Pty ltd ATF Dominion Global Unit Trust |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Robin Fitzsimons |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 9 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant had trigeminal neuralgia resulting from an injury of a malarial infection; the trigeminal neuralgia caused episodic symptoms; Medical Assessor (MA) found the appellant had not achieved maximum medical improvement and did not assess the degree of the appellant’s permanent impairment seemingly on the basis that the appellant’s symptoms were episodic; the issue raised on appeal was whether the MA erred by finding the appellant had not achieved maximum medical improvement; Appeal Panel found that the appellant had received extensive treatment over the course of years and his condition will likely remain the same with some periodic fluctuations for the foreseeable future; Appeal Panel held MA erred; Held – Medical Assessment Certificate revoked. |
ACKGROUND TO THE APPLICATION TO APPEAL
On 4 December 2023 Jefferson De La Rosa, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
9 November 2023.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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Dominion Global Pty Ltd, the respondent, employed the appellant as a trade assistant. The appellant was working for the respondent in August 2020 in Papua New Guinea. He contracted plasmodium vivax malaria while doing so.
The appellant also suffers from trigeminal neuralgia. That arose not long after his infection with malaria. The appellant contended that his trigeminal neuralgia resulted from his malaria infection and consequently was a condition resulting from his injury.
The appellant was examined by consultant neurologist Dr Paul Teychenné on 12 May 2021, who advised in his report that he assessed the appellant had 30% whole person impairment (WPI) from his injury. Dr Teychenné advised that he based his assessment on the criteria of Table 13-11 of AMA 5. He explained that “Mr De La Rosa fitted into Class 3, severe uncontrolled unilateral or bilateral neuralgic pain with sensory loss or dysaestheisa that prevents performance of activities of daily living”.
Relying on that report of Dr Teychenné the appellant claimed compensation from the respondent’s insurer under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 30% WPI from his injury. The insurer did not accept his claim because it considered the appellant’s trigeminal neuralgia did not result from the appellant’s work injury, that is his infection with malaria.
The appellant instituted proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation for permanent impairment. The matter was referred to a Commission Member, namely Mr Paul Sweeney, to determine the contentious issue between the parties, being whether the appellant’s trigeminal neuralgia resulted from his accepted work injury.
On 14 September 2023 the Commission issued a Certificate of Determination recording the following determinations that Member Sweeney made:
“1. On or about 18 August 2020, the applicant contracted malaria arising out of and in the course of his employment with the respondent at Lihir Island in Papua New Guinea.
2. As a result of that injury the applicant developed the condition of trigeminal neuralgia.
3. Remit the matter to the President for referral to a Medical Assessor to certify the degree, if any, of whole person impairment as a result of the condition of trigeminal neuralgia.
4. Medical Assessor to have access to the Application, the Reply, the Application to Admit Late Documents and the documents attached to each together with a copy of these reasons.”
A delegate of the President of the Commission then duly issued a referral to the Medical Assessor on 18 September 2023. The medical disputes that the delegate referred to the Medical Assessor were described in the referral in these terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury
(s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 18/08/2020
Body part/s referred: Trigerminal Neuralgia
Method of assessment: Whole Person Impairment”
The Medical Assessor examined the appellant on 26 October 2023 so as to conduct the assessment that had been referred to him. As mentioned, he issued the MAC in response to the referral on 9 November 2023.
In the MAC under the heading “present symptoms” the Medical Assessor recorded the following:
“He has been unemployed for 12 months because of “flare-ups” when the pain becomes worse, see further comment below. He also said that the distribution of the symptoms had contracted in some degree so that he was no longer experiencing pain and burning in the left forehead or in the temporal region. However, the symptoms now present were more “concentrated” between the left ear and the medial left cheek and have been constantly present since 18 August 2020. At no time had his left ear been involved.
He reported some small improvement in symptoms since the first of the ketamine
infusions in January and no improvement following the second infusion in June.
The history provided by Mr De La Rosa is somewhat variable in relation to the periodicity of the facial pain. The symptoms now present occur episodically lasting between 10 minutes and 40 minutes, approximately three times per week and pain in the left cheek is also present “all the time”. The constant pain is of low-grade intensity while the episodic pain is much more severe.
On direct enquiry, pain is not provoked by touching the left side of the face, shaving or
washing. Exposure to a heat pack improves the symptoms whereas drinking something hot may sometimes provoke a flare-up, as does physical activity also quite unpredictably.”
The Medical Assessor noted that the appellant is responsible for all his activities of daily living and drives a motor vehicle.
The Medical Assessor also noted that the appellant’s current treatment consisted of ketamine infusions in January and June of this year, analgesic medication of Panamax and Nurofen and psychotropic medication with Diazepam and Endep. The Medical Assessor noted that the appellant was also having B12, magnesium and iron treatment and had previously taken Tegretol.
In addition to the treatment the Medical Assessor detailed, the Appeal Panel notes from the material before it, that the appellant also previously had indomethacin prescribed by his treating neurologist Dr Ruradh Smail.
The Medical Assessor under the sub-heading “summary of injuries and diagnoses” said:
“On the basis of probability, the diagnosis is trigeminal neuralgia with some atypical
features.
Trigeminal neuralgia is commonly idiopathic without an identifiable organic process been identified as the cause. In this instance, reference has been made to MRI scans and to the report prepared by Dr Roberta Tse providing MRI evidence of the anatomical relationship between the left superior cerebellar artery and the trigeminal nerve which is a well recognised cause of trigeminal neuralgia and should be regarded to be evidence of a mechanism responsible for the trigeminal neuralgia described by Mr De La Rosa.
I have considered the imaging included in Dr Granot’s report and agree with his
interpretation of the scan and its consonance with Dr Tse’s observations.
I note there is disagreement regarding the significance of the MRI finding, however the
matter of the significance of the MRI findings reported above is not of crucial significance because the diagnosis of trigeminal neuralgia is very commonly applied when there is no identifiable evidence of an organic process.
The lack of agreement about the MRI evidence does not therefore justify attributing the
cause of the trigeminal neuralgia to a malarial infection.
The natural history of trigeminal neuralgia is variable, symptoms are episodic and the
pattern of the symptoms and the periodicity described by Mr De La Rosa renders it not possible to conclude that maximum medical improvement has occurred.”
Within the form the President of the Commission has approved for a Medical Assessment Certificate, there is a standard question, “have all body parts/systems stabilised/reached maximum medical improvement?”. The Medical Assessor answered “no” to this. In answer to another standard question, “if stabilisation/maximum medical improvement, of any or all injuries has not been reached, when in your opinion will this occur?”, the Medical Assessor said “It is not possible for me to prognosticate regarding when maximum medical improvement can be expected on the current evidence available”.
Within Table 2 of the MAC the Medical Assessor, where required to specify the percentage WPI the appellant had from trigeminal neuralgia, the Medical Assessor wrote “maximum medical improvement has not occurred”.
It is implicit from the MAC, when read as a whole, that the Medical Assessor considered that the appellant’s permanent impairment from his injury was not fully ascertainable as a consequence of his concluding that he had not attained maximum medical improvement. Further as a consequence of the Medical Assessor concluding that the appellant’s permanent impairment was not fully ascertainable, the Medical Assessor declined to make an assessment of the degree of the appellant’s permanent impairment.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for it to determine the appeal.
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.
The Appeal Panel considers that the appellant’s submissions, in the whole, are a touch obscure. When read as a whole the Appeal Panel’s paraphrase of them, by way of summary, is that the appellant is contending that the Medical Assessor erred by concluding that he had not attained maximum medical improvement and, as a consequence, that his degree of permanent impairment was not fully ascertainable. Further, the appellant is contending that, arising from this error, the Medical Assessor was wrong not to assess the degree of his permanent impairment from trigeminal neuralgia. The appellant submitted that the Medical Assessor should have addressed the assessment Dr Teychenné made and should have given consideration to section 13.4d of AMA 5 and, having done so, and having considered the evidence, should have provided an assessment of impairment in accordance with the criteria of Table 13-11 of AMA 5.
The appellant also submitted that it was incumbent upon the Medical Assessor, if he considered his impairment was not fully ascertainable, “to give some guidance as to the circumstances at which MMI will be obtained”. The appellant submitted that it was a demonstrable error of the Medical Assessor not to do so.
In reply, the respondent submitted that it can be inferred from the MAC that the Medical Assessor considered the appellant required further treatment and that the appellant would not attain maximum medical improvement until he had that treatment.
The respondent conceded that the Medical Assessor did not clearly outline or provide guidance as to when the appellant would achieve maximum medical improvement. The respondent referred to a report of neurologist Dr Ron Granot, whom it had qualified to provide an opinion, wherein Dr Granot outlined further treatment that could be considered for the appellant. The respondent submitted that it could be inferred that the Medical Assessor agreed with Dr Granot and that the appellant’s prognosis was dependent upon the potential of that future treatment.
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.
It is important in this matter, in the Appeal Panel’s view, to keep in mind that the appellant’s treating doctors, and also the Medical Assessor, diagnosed the appellant with trigeminal neuralgia. Further, there was no controversy between the parties that this was the appellant’s diagnosis. The controversial issue between them, that Member Sweeney had to decide, was whether the appellant’s trigeminal neuralgia resulted from the appellant’s work injury. Member Sweeney found it did.
The appellant has received extensive treatment for his trigeminal neuralgia over time and continues to receive treatment for that. The Medical Assessor detailed that treatment in the MAC.
Given all that, the Appeal Panel considers that the Medical Assessor was wrong to conclude that the appellant had not attained maximum medical improvement, and by implication that his permanent impairment was not fully ascertainable. It would seem that the Medical Assessor’s sole reason for determining that the appellant’s degree of permanent impairment was not fully ascertainable was because the natural history of trigeminal neuralgia is variable with episodic symptoms. That however, in the Appeal Panel’s view, does not mean that the appellant’s degree of permanent impairment is not fully ascertainable. Indeed, section 13.4d of AMA 5 provides for an assessment of WPI to be made for “both atypical, episodic facial pain and typical neuralgic pain … if they have occurred for months and interfere with daily activities”. That is the case with the appellant.
Dr Smail, treating neurologist, in his reports of 14 and 28 January 2021, considered diagnoses of trigeminal neuralgia and, in the alternative, paroxysmal (episodic) hemicrania, which is one of a class of disorders known as the trigeminal autonomic cephalalgias (TACs). He also noted atypical features of both trigeminal neuralgia and paroxysmal hemicrania.
The neurological member of the Appeal Panel notes that the duration of episodes, described most recently by Dr Mellick as being 10-40 minutes, is more typical of paroxysmal hemicrania than trigeminal neuralgia (where episodes are typically much briefer), and that there were no strong autonomic features in the history given to Dr Smail, although the appellant did report a couple of episodes of nasal stuffiness. It appears that Dr Smail was not aware of the infra-orbital oedema documented at Royal Brisbane and Women’s Hospital. Despite his uncertainties about the diagnosis Dr Smail did nevertheless decide to trial treat with indomethacin, which is typically highly effective for paroxysmal hemicrania. It appears that the indomethacin was indeed helpful, although it caused stomach upset. Mr De La Rosa ran out of indomethacin and then had to present twice to hospital because of recurrence of pain. Presumably because of the stomach upset, Dr Smail decided to taper the indomethacin.
The Appeal Panel notes that when Mr De La Rosa presented to the Royal Brisbane and Woman’s Hospital on 28 August 2020 he had a swollen puffy left eye which was diagnosed as infra-orbital oedema, and a blocked nose. The neurological member of the Panel notes that these are characteristics of TACs, such as paroxysmal hemicrania. Autonomic features which characterize the TACs include, among other features, eyelid oedema and nasal stuffiness. Furthermore, the timing of the appellant’s painful episodes (10-40 minutes) is much more characteristic of episodic hemicrania than it is of the brief painful paroxysms of trigeminal neuralgia. The appellant had earlier appeared to respond to indomethacin, which is specific and effective in treating TACs such as episodic hemicrania. Ultimately that was not the diagnosis his treating doctors made. Potentially, if that had been the diagnosis then treatment in the form of the appellant again trialling indomethacin may have assisted him. However, absent that diagnosis being made, and again bearing in mind that diagnosis of the appellant’s earlier treating doctors has been that of trigeminal neuralgia and that there is no controversy between the parties regarding this diagnosis, and that the Commission has found that this results from that appellant’s malarial infection, the Appeal Panel considers that it can only have regard to the treatment the appellant is presently receiving and cannot take into account any treatment (such as indomethacin) for any other potential diagnosis that could be made. In the Appeal Panel’s view, in all likelihood the appellant’s condition will remain the same, with periodic fluctuations, for the foreseeable future.
Given that, and keeping in mind too that AMA 5 allows for an assessment of impairment for trigeminal disorder where it presents atypically and with episodic facial pain, the Appeal Panel considers that the Medical Assessor applied incorrect criteria to conclude that the appellant’s permanent impairment was not fully ascertainable and the Medical Assessor was wrong not to assess the degree of the appellant’s permanent impairment from his trigeminal neuralgia.
Consequently, the Appeal Panel must correct that error which requires the Appeal Panel to assess the degree of the appellant’s permanent impairment from trigeminal neuralgia.
The Appeal Panel observes from the material before it that the appellant has bilateral trigeminal neuralgia but predominantly it is left-sided. The appellant experiences constant low-level pain in his left cheek and experiences flares three times a week for between 10 and 40 minutes a time. These flares prevent him from working.
The Appeal Panel considers those symptoms the appellant experiences correlate with the criteria for a Class 2 assessment under Table 13-11 of AMA 5. The distribution of his symptoms is usually along the second and, to a lesser extent, third divisions of the trigeminal nerve and not along the first ophthalmic division. His pain is moderately severe and uncontrolled and interferes slightly with his activities of daily living because when he has flares of pain he is unable to work. Weighing that all up the Panel considers that he should be assessed as having 15% WPI from trigeminal neuralgia.
For these reasons, the Appeal Panel has determined that the MAC issued on
9 November 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4092/23 |
Applicant: | Jefferson De La Rosa |
Respondent: | Dominion Global Pty Ltd ATF Dominion Global Unit Trust |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Ross Mellick and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Trigeminal neuralgia | 18/08/2018 | Chapter 5 | Chapter 13 Page 331 Table 13-11 | 15% | - | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0