Dotlic v Now Careers Pty Ltd
[2023] NSWPICMP 260
•13 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dotlic v Now Careers Pty Ltd [2023] NSWPICMP 260 |
| APPELLANT: | Djordje Dotlic |
| RESPONDENT: | Now Careers Pty Ltd |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 13 June 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in making a deduction pursuant to section 323; the Appeal Panel found ample evidence of a pre-existing condition that contributed to the impairment; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 February 2023 Djordje Dotlic (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor, (MA), who issued a Medical Assessment Certificate (MAC) on 27 January 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, no specific reasons were provided as to why this was necessary, and in any event, we consider that we have sufficient evidence before us to enable us to determine this appeal.
EVIDENCE
Documentary 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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in the s 323 deduction he made.
In reply, Now Careers Pty Ltd (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 MA for assessment of whole person impairment (WPI) in respect of the lumbar spine resulting from an injury on 12 January 2021.
The MA obtained the following history:
“Mr Dotlic confirmed that he had been employed full time by Now Careers Pty Ltd at their Wetherill Park factory as a concrete patcher for approximately three years. Concrete panels are used for high rise and factories and are laid out on what was described as tables approximately half a meter from the ground and his job was to get onto the panels and smooth out any irregularities and patch any defects.
On 12 January 2021, whilst in the course of his duties, he was standing on a panel which was moist when he slipped. At the time, he was carrying two tools which were very sharp and in order to not be stabled by these tools he twisted as he fell and he felt something pop in his back.
Mr Dotlic tried to continue working but over a two hour period he developed left leg pain and also a feeling of numbness in the outside of his left foot in addition to the back pain. He reported the incident to his supervisor and he was subsequently sent home and was seen by a general practitioner the following day. He was certified unfit for work and referred for scans and physiotherapy.
He was then referred to Dr Brian Hsu, Orthopaedic Surgeon, however as he was not taking any new patients, he was seen by Dr Bhisham Singh who worked in the same clinic. He initially recommended conservative treatment, however, as this was of no benefit he was subsequently admitted to Norwest Private Hospital where he underwent an L5/S1 discectomy. Unfortunately, the surgery did not help and he has been considered for a fusion but at this stage, having being so disappointed by the first operation he is unwilling to undergo further surgery.”
Present symptoms were noted as follows:
“Mr Dotlic confirmed that he has not returned to any form of employment. He has back pain which is present all the time and varies from day to day. His pain is worse in cold weather and with any attempt to do any repetitive bending. He also experiences pain down the left leg, especially from the knee to the foot and a feeling of numbness in the left calf on the outside and down in the toes.”
When asked to provide “Details of any previous or subsequent accidents, injuries or condition” the MA said:
“Mr Dotlic was involved in a motor vehicle accident in 2016. He was a passenger in the vehicle coming home from work which was hit on the driver’s side. He sustained a twisting injury to his neck, back and to the left shoulder. Mr Dotlic came under the care of Dr Giblin and was treated conservatively. He told me a claim was made and settled and he did not lose any time from work.”
Findings on physical examination were reported as follows:
“Mr Dotlic was noted to be 183 cm in height and 93 kgs in weight. He walked with a normal posture and gait and was noted to sit uncomfortably.
Examination was confined to the lumbar spine and the lower limbs
The claimant was noted to have a 3 cm midline scar over the lower lumbar spine consistent with his surgery. There was spasm of the paraspinal muscles. Flexion was to one third of the normal range and extension was markedly reduced. Rotation was half range. Mr Dotlic was able to sit on the bed but sat uncomfortably. The left ankle reflex was absent and the other reflexes were present. He had loss of sensation down the lateral aspect of the calf and in the lateral two toes. Straight leg raising on the right side was to 60 degrees and on the left to 30 degrees with a definite nerve root tension sign.”
The MA then summarised the investigations he had before him and said:
“X-ray Lumbar Spine dated 3 June 2016 this was reported as showing a minor lumbar scoliosis to the left and minimal spondylitic changes at L3/4.
MRI Lumbar Spine dated 6 June 2016 reported disc desiccation at L5/S1 with a posterior annulus tear and a posterocentral focal disc protrusion. There was no foraminal L5 root compression. There was the possibility of impingement of the S1 nerve roots.
Whole Body Bone Scan dated 15 June 2016 reported increase uptake of mild degree in the sacroiliac joints bilaterally. There was no other increase uptake in the lumbar spine.
MRI Lumbar Spine dated 22 January 2021 reports a normal lumbar spine to L5-S1, were there is a left posterolateral disc herniation into the left lateral recess and impinging on the exiting nerve root.”
In summarising the injuries and diagnoses, the MA said:
“Mr Dotlic presents with persistent back pain, despite surgical intervention and has evidence of radiculopathy with an absent left ankle reflex and altered sensation in the S1 dermatome and radiological changes of a L5/S1 lumbar disc protrusion to the left.
Mr Dotlic’s presentation was entirely consistent with no evidence of exaggeration or illness behaviour.”
When asked: “Is any proportion of whole person impairment due to a previous injury, pre-existing condition or abnormality?” the MA replied “Yes-Lumbar Spine (L5/S1 previous disc protrusion)”.
The MA then set out his reasons for assessment and said:
“Mr Dotlic has evidence of back pain with dysmetria and evidence of a left-sided radiculopathy with an absent ankle reflex, altered sensation in a dermatomal distribution and a positive nerve root tension sign and I would therefore place him in DRE Category III and assign a 10% WPI.
The impact of this injury on the activities of daily living is assessed using the Guidelines…and I refer you to Chapter 4, Paragraphs 4.34 and 4.35 on page 28. The claimant can self-care but has difficulty with inside and outside activities and I would therefore assign a 2% WPI giving him a WPI of 12% for the lumbar spine.
The claimant has undergone surgery and is left with evidence of left-sided radiculopathy and therefore using Table 4.2 on page 29 he is assessed as having an additional 3% WPI. This impairment should be combined with the assessed 12% using the Combined Values Chart on page 604 giving the claimant a Total WPI of 15%.
Mr Dotlic has a history of sustaining a back injury in a motor vehicle accident. At that time, he denies any radicular symptoms in either lower limb and the review of his treatment by Dr Matthew Giblin indicates that there was no radicular symptoms, however, his MRI scan dated 6 June 2016 confirms the presence of an L5/S1 disc protrusion as a result of a posterior annulus tear and I would consider that this was aggravated by the claimant’s fall at work which aggravated the disc lesion and produced radiculopathy. I would therefore consider that a one-tenth deduction on his assessed 15%WPI would be reasonable, giving him 13 ½% which is rounded up to 14%.”
The MA then turned to consider the other medical opinions and said:
“Report of A/Prof Nigel Hope in his report dated 2 May 2022 mentions that the claimant did have a prior motor vehicle accident. He quite rightly indicates that Mr Dotlic did not lose time from work. Unfortunately he only reports on the current MRI scan of 22 January 2021 and therefore makes no deduction for the pre-existing disc lesion.
Report of Dr Frank Machart in his report dated 23 August 2022 assesses the claimant as a 15% Whole Person Impairment and deducts 1/3. I disagree with this assessment as Mr Dotlic after the motor vehicle accident did not lose time from work and did not suffer from radiculopathy and therefore a one-tenth deduction would seem more appropriate.”
The appellant submits that no deduction ought to have been made on the basis that, after the motor vehicle accident in 2016 Mr Dotlic:
(a) fully recovered from the effects of that accident;
(b) there is no clinical record after 2017 of any residual symptoms, and no mention of any back pain or radiculopathy up until the injury on 12 January 2021;
(c) the MA did not request further information from the appellant or his general practitioner about any symptoms post 2017;
(d) the MA failed to consider the radiological findings of only moderate pathology in the lumbar spine in 2016, and
(e) the MA failed to provide adequate reasons in applying a 10% deduction.
The appellant then relies on the decision in Cole v Wenaline Pty Ltd [2020] NSWSC 78 in support of his submissions.
Contrary to the appellant’s submissions, the medical evidence does not support the submission that Mr Dotlic had “fully recovered” from the effects of the motor vehicle accident.
The MA did acknowledge that the appellant did not have time off work after the motor vehicle accident. He said: “He told me a claim was made and settled and he did not lose any time off work”.
The medical evidence demonstrates that the appellant reported persistent back pain for at least eighteen months after the motor vehicle accident.
The last report of back pain in the lumbosacral region appears in the consultation note dated 18 September 2017 within the clinical notes of Valley Plaza Medical Centre. It is clear from these records that the appellant continued to receive physiotherapy treatment even into September 2017.
As the respondent correctly points out:
“Thereafter, the clinical records indicate only eight attendances until the work injury, and there is otherwise no medical evidence which covers the period from 2018 until that date. It follows that there is no evidence of a full recovery or resolution of the appellant's condition, for example in the form of a report indicating his discharge from treatment or any indication of his symptoms resolving. The symptoms simply cease to be mentioned in that record.”
The MRI carried out in 2016 showed problems at the L5/S1 level and in this case it is worth referring to the report of Dr Giblin of 27 June 2016 where he notes that the MRI of Mr Dotlic’s lumbar spine showed “disc desiccation at L5/S1 with a bit of central bulge and I felt [this] was compressing more the left S1 nerve root than the right, and this would be consistent with his symptoms.”
This is important since in the actual MRI report of 6 June 2016, the radiologist notes the posterior central focal disc protrusion at the L5/S1 level with “potential impingement of the S1 nerve roots…”
The appellant clearly had symptoms which were persistent and significant enough to warrant ongoing treatment for at least 18 months.
As Dr Machart noted, the appellant's pathology was “[s]ubstantially symptomatic” in the past.
The respondent has documented a number of salient points on this issue as follows:
(a) The treating records of Dr Giblin indicate that the appellant did not receive any relief from the steroid injection to his lumbar spine. As of 18 January 2017, Dr Giblin reported the lack of impact from conservative treatment measures, and that the appellant continued to experience chronic back pain.
(b) On 4 May 2017, the appellant was referred by Dr Thavamany Kanapathipillai, general practitioner, for further physiotherapy treatment as continued to experience persistent back pain following the motor vehicle accident of February 2016.
(c) An aggravation of the same, pre-existing pathology, which was symptomatic for a significant period of time, indicates a clear contribution of the prior injury and pathology to the appellant's current impairment (see Cole) As such, the prior injury is not a “simple fact of history'” which has no bearing on the appellant's current condition and there is no mere assumption that a deduction is warranted as indicated by the appellant.
(d) This position is supported by the medical evidence, including the report of Dr Machart who found evidence of previously symptomatic ”identical pathology” Furthermore, the report of Dr Giblin dated 27 June 2016 and MRI of the lumbar spine dated 6 June 2016 demonstrate the appellant had disc desiccation and disc protrusion at L5/S1 (prior to the work injury) whilst the MRI of the lumbar spine dated 22 January 2021 showed disc herniation at L5/S1 (after the work injury). Furthermore, Dr Bhisham Singh, orthopaedic and spine surgeon, reported on 21 May 2021 that the appellant's disc herniation at L5/S1 was longstanding, and it was pathology at this disc L5/S1 which was surgically treated by way of discectomy and rhizolysis.
(e) The pathology present in the lumbar spine in 2016 could not be considered moderate because of the substantial treatment the appellant had following the MVA.
(f) The respondent disputes the appellant's assertion that there was no evidence of radiculopathy or impingement upon the exiting nerve root until after the work injury in 2021 as this appears inconsistent with the treating evidence in 2016.
(g) The report of Dr B Singh (spinal surgeon) of 21 May 2021 notes that Mr Dotlic’s “disc herniation at L5/S1 was longstanding…”
We agree with the respondent’s submissions for reasons that follow.
To begin with, we note that Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 is authority for the proposition that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-exiting condition had been asymptomatic prior to the injury.
It is abundantly clear that Mr Dotlic had quite significant pathology in his lumbar spine prior to the work injury, contrary to his statement where he said:
“On or around 4 February 2016, I experienced slight discomfort in my lower back after being involved in a motor vehicle accident. I can confirm that I recovered completely and did not have any significant or ongoing impacts on my ability to complete daily duties. This injury did not require any time off work or any downgrading of daily duties.”
It seems to us inconsistent that, if Mr Dotlic had such “slight” symptoms and fully recovered from his injuries that he would pursue a claim that was ultimately settled.
We also note that the clinical notes confirm that Mr Dotlic was on light duties for some considerable time after the motor vehicle accident, again, inconsistent with a claimed “full” recovery.
In short, the totality of the evidence fully supports the determination by the MA that a deduction was appropriate.
It must be remembered that paragraph 1.28 of the Guidelines provides:
“In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
Finally, in addressing some of the other submissions made by the appellant, we agree with the respondent that there is no requirement for an MA to “request further information from the appellant or his general practitioner about any symptoms post 2017.”
Again, it must be remembered that the Guidelines require an MA to assess a claimant on the day of the assessment, and to have regard to all of the evidence.
There was, for the reasons stated above, no evidence that “the radiological findings [showed] only moderate pathology in the lumbar spine in 2016.”
In our view, the MAC was thorough and detailed, and the reasons provided by the MA were adequate to demonstrate why, on all the evidence, a deduction was warranted.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 January 2023 should be confirmed.
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