Delaney v Cessnock City Council
[2024] NSWPICMP 127
•7 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Delaney v Cessnock City Council [2024] NSWPICMP 127 |
| APPELLANT: | Peter James Delaney |
| RESPONDENT: | Cessnock City Council |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 7 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in his whole person impairment (WPI) assessment of activities of daily living; the Panel agreed; the Panel notes that the MA documents clinical findings of stiffness in his lumbar spine, and evidence of left sided radiculopathy with positive sciatic tension and associated with this, muscle wasting and weakness and sensory changes involving L5 and S1 nerve roots; the totality of the evidence is strongly suggestive of a 2% WPI; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 December 2023 Peter James Delaney (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Murray Hyde-Page, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 December 2023.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, 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 (the 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).
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 worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal, for reasons which will become apparent below.
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 Medical Assessor erred in his whole person impairment (WPI) assessment of activities of daily living (ADL’s).
In reply, 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 appellant was referred to the Medical Assessor for assessment of WPI in respect of the lumbar spine on 16 March 2015.
The Medical Assessor obtained the following history:
“Peter Delaney states that on the 16 March 2015, in the course of his work, he was servicing a truck. This involved lifting a cab down, which he did with a co worker. As he did this, he developed acute pain going down his left leg with numbness. He reported the incident and immediately had to rest. He had never experienced pain like this before.
The next day, he saw his GP and was given pain medication and organised to have an MRI scan of his lumbar spine. He was referred to see a Spinal Surgeon, Dr Hardeep Salaria, who first saw him on the 16 April 2015. In his report, Dr Salaria noted the work injury to his lumbar spine. He was found to have weakness and numbness in his left foot. His MRI scan showed a large L5/S1 disc protrusion. Dr Salaria felt he needed urgent surgery in the form a L5/S1 discectomy and S1 nerve root rhizolysis. Before this, he had a cortisone injection.
The surgery was undertaken in the Maitland Private Hospital in June 2015, and he had an L5/S1 discectomy.
Following the surgery he improved, and he had physiotherapy and exercise over a three to four months period before he went back to work.
He went back on light work duties and slowly increased his work activity. He states that he had a very good boss and although he was given a work certificate to say that he could do normal work duties, his boss made sure that he did work that would not aggravate his back and left leg symptoms. In this way he was able to continue working satisfactorily over the next few years.
Eventually his boss retired, and he decided at that time that he would resign and find alternate employment. He resigned in May 2021 and moved to live at Elands on the Mid North Coast. He found employment with Mid Coast Council, mainly as an excavator operator but also as a team leader in cemeteries. He has been able to continue working at this over the last eighteen months, working fulltime. He has to be careful not to aggravate ongoing back and left leg symptoms.”
After documenting Mr Delaney’s current treatment, symptoms, general health and other matters not relevant to the issue in dispute, the Medical Assessor then set out details of the impact of his injury on his social activities and ADL’s as follows:
“Since moving to the Mid North Coast, he has lived on a 160-acre property at Elands, up behind Wingham. About 40 head of cattle are run on the property and he is presently mainly agisting cattle. The person agisting does most of the tasks involved with maintaining the farm and cattle.
He lives with his partner. He is right hand dominant. He does not smoke and has a low alcohol intake. He states that he no longer does his previous outdoor interests such as fishing, walking and car restoration. He only has limited ability to use the ride-on lawn mower. On close questioning, he appears to be able to do most indoor domestic tasks satisfactorily, if he has to. Overall, he needs no personal care. He drives a vehicle satisfactorily. He can find it uncomfortable getting in and out of a vehicle, however.”
Findings on examination were reported as follows:
“Peter Delaney is 5 foot 10 inches tall and weighs 94 kilograms. He is a healthy-looking man. Today, he was moving quite comfortably and freely.
On examining his lumbar spine, he has a well healed midline longitudinal scar in his lower lumbar area that is barely visible and causes no symptoms. He has some stiffness with spinal movement in all directions.
While lying on the examination couch, he had normal straight leg raise on the right side. On the left side straight leg raise of 60° gave a positive sciatic tension. He has some weakness around his left ankle with eversion and inversion. He has altered sensation in the left foot, under the foot and around the toes involving LS and S1. There is 1 centimetre wasting of his left calf compared to the right…
Overall, today's examination indicates stiffness in his lumbar spine, and he has evidence of left sided radiculopathy with positive sciatic tension and associated with this, muscle wasting and weakness and sensory changes involving LS and S1 nerve roots.”
After setting out details of the radiological material he had, he summarised the injuries and diagnoses as follows:
“Peter Delaney developed acute low back pain and left sided sciatica at work on the 16 March 2015. He suffered an acute LS/S1 disc protrusion, and this was treated with a disc excision a few months later.
He now presents with ongoing symptoms with back pain and left sided sciatica and ongoing LS and LS1 radiculopathy with associated numbness and weakness around his left ankle and foot.”
He added: “Peter Delaney was straightforward in his answers. Both with the history taken and physical examination, there was no suggestion of any embellishment or exaggeration.”
The Medical Assessor explained his calculations as follows:
“Peter Delaney has whole person impairment related to his lumbar spine and the fact he had a L5/S1 discectomy and still has ongoing radiculopathy. With reference to WorkCover Guides page 29, he is considered under DRE Category Ill lumbar spine condition having had the discectomy. With reference to AMA Guides 5th Edition page 384 Table 15-3, this gives a range of WPI of 10% to 13%. With the affect on his activities of daily living, he still has restriction in outdoor tasks, but can do indoor and personal tasks satisfactorily. There is therefore 1% WPI. When this is taken into account, he therefore has 11% WPI.
He has ongoing radiculopathy on today's examination. With reference to Table 4.2 page 29 of the Guides, there is therefore another 3% WPI for ongoing radiculopathy. This is therefore combined with 11% WPI, to give 14% WPI overall.”
He then turned to consider the other medical opinions and evidence and said:
“Dr Abe Isaacs, Orthopaedic Surgeon, has done a medicolegal report in February 2023. He notes the acute low back injury and subsequent left L5/S1 disc excision and ongoing sciatica.
Dr Isaacs concludes that Peter Delaney has whole person impairment as there is ongoing radiculopathy and he has had a previous discectomy at L5/S1. He concluded there was 2% WPI for the impact on ADLs. He does not consider there is any deduction for any pre existent injury or condition. When this is taken into account, he concludes there was 15% WPI.
Dr Chris Harrington, Orthopaedic Surgeon, has done a medicolegal report in June 2023. He also concludes that there is ongoing radiculopathy in the left lower leg after having had the L5/S1 discectomy. He concludes there is no WPI due to the affect on the activities of daily living as he can do heavy manual tasks. He concludes there is a one tenth deduction for pre-existent changes at the L5/S1 disc space with some degenerative changes. When these are taken into account, he concludes there was 12% WPI overall caused by the work injury.
I have concluded after my assessment that Peter Delaney has ongoing radiculopathy following his discectomy at L5/S1. There has been an affect on his activities of daily living and there is 1% WPI for restriction in outdoor tasks. He is capable of doing all indoor and personal tasks satisfactorily, overall. I do not consider there is a deduction for pre-existent degenerative changes at LS/S1 and the nature of the acute injury and the MRI scan indicates that this was an acute large left LS /S1 disc protrusion that occurred on the 16 March 2015. He had no previous history of any injury or complaint to the lumbar spine.”
The submissions
The thrust of the appellant’s submissions is that the Medical Assessor “failed to engage” with the opinion of Dr Isaacs who assessed 2% for ADL’s.
The appellant adds:
“The MAC makes no reference to the [worker’s] statement and its contents. The medical assessment accepts the credit of the worker. The worker's statement addresses ADL matters in paragraphs 17 through to its conclusion.”
The appellant states:
“I can't do the housework including cooking if this involves standing for very long and again I rely on my partner. I can't stand at the sink to do washing up.
It is difficult for me to do grocery shopping. I can't stand and walk for long and I find pushing the trolley around a supermarket aggravates my back pain and so again my partner does this for us.”
The appellant submits:
(a) in the Guidelines at paragraph 4.35 is noted suitable for allocation of 3% WPI "if the worker's capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected". There is no inquiry to these specific activities recorded in the MAC;
(b) in the circumstances of the intrusive and unremitting residual radiculopathy disabilities endured by this man, objectively one would reasonably expect that his capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected. The test is not that the worker cannot do those things. The test is whether his capacity has been affected. The radiculopathy alone strongly suggests that;
(c) where under "Social activities/ADL" at p 3.5 the MAC records: "Overall, he needs no personal care". The condition of the assessment implied by the word "Overall" is that there has in fact been consequences to his personal care. With respect, the assessment is erroneously addressing provision of domestic assistance. The assessment has not addressed the actual terms of paragraph 4.35;
(d) the patent reservation implicit in the expression "overall" is repeated at MAC p 6.3: "He is capable of doing all indoor and personal tasks satisfactorily, overall". At this part, inserting the additional proviso "satisfactorily" is further implication that there has been a downgrading of the faculties in question attributable to the pernicious radiculopathy. That satisfies the terms of the Guidelines paragraph 3.5. Again, the assessment does not answer the test in the Pl Guidelines paragraph 4.35;
(e) the objective reader is left unguided in the assessment by the absence of expressed engagement with the stated grounds for the opinion of Dr Isaacs. This is a failure to provide reasons where such should have been given. One cannot reasonably be satisfied that the suitability in this case of the allocation of 3% WPI for ADL has been assessed;
(f) the Guidelines at paragraph 4.35, against the allocation of 2% WPI for ADL, "... restricted with usual household tasks, such as cooking, vacuuming and making beds or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances" is apt having regard to what is recorded by Dr Isaacs as quoted and the worker in his statement, as well as constraints of the radiculopathy, and
(g) there are no MAC references to the specific activities where such specification was reasonably required. Where the MAC at p 3.5 states"... he appears to be able to do most indoor domestic tasks satisfactorily, if he has to ... " and at MAC p 6.3, "He is capable of doing all indoor and personal tasks satisfactorily, overall", necessarily imply satisfaction of the criteria stated in the Guidelines apposite 2% WPI allocation. As stated, the assessment is not answering the questions posed by paragraph 4.35. The assessment does not explain why. The Medical Assessor does not explain what "close questioning" (MAC p 3.5) was conducted or what answers were obtained from the applicant to satisfy the Medical Assessor that the applicant was not "restricted".
In response, the respondent submits that according to paragraph 4.33 of the Guidelines, “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.” Accordingly, the Medical Assessor was not required to base his decision solely on the worker’s statement.
The Guidelines provide that assessing permanent impairment involves a clinical assessment of a worker as they present on the day of assessment, taking into account relevant medical history and all available relevant medical information. A Medical Assessor is also permitted to determine what weight should be given to the documents referred to him, including documents that record prior medical history and symptoms.
It is to be presumed that the Medical Assessor recorded an accurate history and findings on examination and took account of the matters recorded in the various documents referred to him, notwithstanding the appellant’s contention to the contrary.
The Medical Assessor recorded his findings with respect to the activities of daily living within his report and has therefore provided sufficient rationale for his decision in accordance with the Guidelines. What weight he places on the worker’s statement is at his discretion.
That the Medical Assessor may have placed weight on certain information and not on other information when forming his opinion is a matter within his clinical judgement. A mere difference in medical opinion does not amount to a demonstrable error (Merza v Registrar of the WorkersCompensation Commission [2006] NSWSC 939).
Discussion
Paragraph 4.33 of the Guidelines indicate that tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for assessments within DREs category II to V. The ADLs are to be assessed within the range, 0%, 1%, 2% or 3% WPI using paragraphs 4.34 and 4.35 of the Guidelines.
Paragraph 4.35 of the Guidelines outlines a guide to interpret the diagram in 4.24 as follows:
(a) 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected;
(b) 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances, and
(c) 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.
Having carefully considered the evidence, and both parties’ submissions, we have concluded that the Medical Assessor erred in his assessment of ADL’s for reasons that follow.
It is true, as the respondent points out, that a Medical Assessor is required to make a clinical assessment of a worker as they present on the day of assessment.
Having said that, in our view the Medical Assessor failed to adequately enquire of the appellant the nature and extent of his restrictions in his daily activities.
For example, Mr Delaney said in his statement that he relies on his partner to assist with various activities. He said:
“I rely on my partner. I can't stand at the sink to do washing up.
It is difficult for me to do grocery shopping. I can't stand and walk for long and I find pushing the trolley around a supermarket aggravates my back pain and so again my partner does this for us.”
The Medical Assessor does not appear to have made more enquiries regarding these restrictions. He simply stated: “he still has restriction in outdoor tasks, but can do indoor and personal tasks satisfactorily.”
It is unclear what the term “satisfactorily” means in the context of Mr Delaney’s statement regarding the assistance he receives from his wife.
The critical issue however in our view is the absence of reasons provided, let alone any information as to what questions the Medical Assessor asked of Mr Delaney.
For example, the MA said: “On close questioning, he appears to be able to do most indoor domestic tasks satisfactorily, if he has to.” (our emphasis).
In short, that suggests to us that he is restricted in such tasks and will only undertake them “if he has to.”
Similarly with the Medical Assessor’s comment that: “Overall, he needs no personal care.” What does that mean?
As the appellant correctly points out, “there has in fact been consequences to his personal care. The assessment has not addressed the actual terms of paragraph 4.35.”
The Medical Assessor in our view failed to provide adequate reasons for his assessment. He did not explain why he disagreed with either Dr Isaacs or indeed Dr Harrington.
In addition, it seems to us that the ongoing radiculopathy experienced by Mr Delaney would impose significant restrictions on many daily activities.
Terms such as “if he has to” and “satisfactorily, overall,” leaves “the objective reader unguided” as the appellant submitted, and again reflects a failure to provide adequate reasons.
In short, we are left speculating what particular questions did the Medical Assessor ask, and what precisely did he base his decision on? The Medical Assessor does not explain what "close questioning" (MAC p 3.5) was conducted or what answers were obtained from
Mr Delaney.In such circumstances, it is understandable that the appellant was left in some doubt as to the basis for the Medical Assessor’s assessment.
Additionally, the Panel notes that the Medical Assessor documents clinical findings of stiffness in his lumbar spine, and evidence of left sided radiculopathy with positive sciatic tension and associated with this, muscle wasting and weakness and sensory changes involving LS and S1 nerve roots.
These findings would be consistent with Mr Delaney’s statements regarding his restricted standing and walking tolerances when attempting dishwashing and grocery shopping.
The totality of the evidence is strongly suggestive of a 2% WPI. It is described as:
“If the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances…”
Mr Delaney’s circumstances in our view properly fit a 2% assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 December 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7472/23 |
Applicant: | Peter James Delaney |
Respondent: | Cessnock City Council |
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 Murray Hyde-Page 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) |
| 1.Lumbar spine | 16/3/2015 | WCG page29& Table 4.2 page 29 | AMAS page 384 Table 15-3 DRE Category Ill | 15% | Nil | 15% |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
2
0