Elite Professional Facade Pty Ltd v Al Sauer
[2024] NSWPICMP 735
•23 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Elite Professional Facade Pty Ltd v Al Sauer [2024] NSWPICMP 735 |
| APPELLANT: | Elite Professional Facade Pty Ltd |
| RESPONDENT: | Issa Al Sauer |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 23 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) based his assessment of the respondent’s permanent impairment of thoracic spine on correct criteria; whether MA erred with his assessment of the respondent’s permanent impairment of thoracic spine; whether it was desirable for MA to call for plain x-rays of the respondent’s thoracic spine and whether MA erred by not doing so; Held – MA was aware of the x-rays taken of the respondent’s thoracic spine; consistent with 4.12 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021) it was desirable that these be used to assess the degree of the respondent’s permanent impairment relating to his thoracic spine; MA erred by not using the power he had under section 324 to call for these x-rays; Medical Appeal Panel called for the production of the x-rays; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 June 2024 Elite Professional Façade Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 May 2024.
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
Issa Al Sauer, the respondent, whilst working for the appellant on 13 April 2021 fell a distance of between 3 and 4m from a roof, landing on his back on a concrete floor and causing him to suffer injury to his lumbar spine and thoracic spine. Relying on a report of surgeon Dr Peter Conrad dated 19 October 2022, he claimed compensation from the appellant for permanent impairment he suffered from his injury. Dr Conrad, who had examined the respondent on 18 October 2022, advised in his report that he assessed the respondent had a degree of permanent impairment from his injury of the order of 12% whole person impairment (WPI), comprising 7% WPI relating to his thoracic spine and 5% WPI relating to his lumbar spine.
The appellant’s insurer in a notice it issued the respondent under s 78 of the 1998 Act, disputed the respondent was entitled to compensation for permanent impairment from his injury. It relied on a report of orthopaedic surgeon Dr Ron Haig dated 10 March 2023, addressed to the appellant’s solicitors. Dr Haig noted in his report that the respondent had suffered fractures of his T6 and T7 with a minimal loss of height and had suffered undisplaced fractures of two lumbar transverse processes. Dr Haig advised he had assessed the degree of permanent impairment of the respondent from his injury was 5% WPI. That related to the respondent’s thoracic spine, in regards to which Dr Haig noted that “there appeared to be some doubt from the documentation as to loss of height of the vertebral body”. Dr Haig further noted that he had obtained “verbal permission” from the appellant’s solicitors to obtain plain X-rays of the respondent’s thoracic spine and based on those X-rays he had measured the loss of height of respondent’s thoracic vertebral body was 14%, which accorded with the criteria of AMA5 for DRE thoracic category II.
Dr Haig also advised in his report that the respondent’s fractures of his lumbar transverse processes did not warrant an assessment of impairment.
In its s 78 notice the insurer informed the respondent that s 66 of the Workers Compensation Act 1987 (the 1987 Act) required his permanent impairment from his injury to be more than 10% WPI for him to be entitled to compensation under s 66 and that based on Dr Haig’s report, it did not agree that his permanent impairment exceeded that threshold.
Following receipt of the s 78 notice from the appellant’s insurer, the respondent initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation for permanent impairment from his injury. A delegate of the Commission thereupon referred the matter to the Medical Assessor who examined the respondent on 27 May 2024 and, as said earlier, issued the MAC on 29 May 2024. In that he certified he assessed the degree of the respondent’s permanent impairment from his injury is 21% WPI, that comprised of 5% WPI relating to the respondent’s lumbar spine and 17% WPI relating to the respondent’s thoracic spine.
The appellant in its appeal against the medical assessment challenges only the Medical Assessor’s assessment of the respondent’s permanent impairment relating to the respondent’s thoracic spine. In other words, it accepts the Medical Assessor’s assessment that the degree of the respondent’s permanent impairment relating to his lumbar spine is 5% WPI.
With respect to the respondent’s thoracic spine the Medical Assessor recorded in the MAC that from his examination of the respondent he found the respondent’s thoracic spine was balanced in the sagittal and coronal plane and that the respondent had active range of motion in the coronal plane that was slightly asymmetrical and productive of complaint of symptoms in his thoracic spine without any leading questions.
The Medical Assessor provided brief comments in the MAC on radiological investigations that had been done of the respondent’s thoracic spine, which consisted of MRI scans of both the respondent’s thoracic spine and lumbar spine done on 26 April 2021, 8 November 2021, 22 April 2022, and 15 December 2023, and an MRI scan done of his thoracic spine only on 15 November 2022.
The Medical Assessor explained in the MAC that he had assessed the respondent’s permanent impairment relating to his thoracic spine on the basis that the respondent had “25% radiological assessment of one vertebral body, which correlated with the criteria for DRE 3”. The Medical Assessor also explained that based on the history he obtained from the respondent and his findings from his examination of the respondent he assessed the respondent had 2% WPI for the effect the respondent’s injury had on his activities of daily living. He noted that was in accordance with the criteria of paragraphs 4.34 and 4.35 of the Guidelines.
The Medical Assessor observed that Dr Haig had assessed the respondent had 5% WPI relating to his thoracic spine. He further noted that was on the basis that Dr Haig had measured the compression of the respondent’s T7 vertebra is 14%. The Medical Assessor also noted that Dr Haig had an X-ray available to him to make his measurement and that this X-ray was not available to him. The Medical Assessor also said the following to explain why he assessed the respondent’s permanent impairment relating to his thoracic spine on the basis that he had 25% vertebral body loss:
“I was placed between a rock and a hard place in terms of the thoracic spine injury.
The issue was to determine whether it was a DRE 2 or a DRE 3 category injury.
The MRI scans 22 April 2022 and 15 November 2022 reports a 25% vertebral body loss which places the injury into a DRE 3 category. However, Dr Haig in his report 10 March 2023 measures the T7 vertebra at 14%.
Dr Haig had the ability to directly measure the deformity whereas I had to rely solely on the reported evidence noting that it was an MRI scan which was utilised for the result.
A plain x-ray is the instrument of choice to determine the exact percentage.
This was not available to me today.
As such, I felt obliged to utilise the findings of the MRI scan reports and determine a DRE 3 category injury for the thoracic spine.
It goes without saying that I would have much preferred to have a plain lateral x-ray of the thoracic spine, which is contemporaneous and which I could measure myself.”
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 respondent to undergo a further medical examination. This is because no issue was raised in the appellant’s appeal against the medical assessment regarding the Medical Assessor’s examination of the respondent or his findings from that examination.
The Appeal Panel however decided to call for the films of an X-ray of the respondent’s thoracic spine that was done on 8 March 2023. Those films were subsequently provided to the Commission and in turn forwarded to Dr James Bodel, one of the Appeal Panel’s members, to view.
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.
Paraphrasing the appellant’s submissions so as to provide a summary of them, they are that the Medical Assessor wrongly correlated the respondent’s thoracic spine with the criteria for DRE category 3. The appellant referred to paragraph 4.12 of the Guidelines and submitted, that in accordance with the instruction therein, the Medical Assessor ought to have reviewed the X-ray done of the respondent’s thoracic spine and referred to that X-ray when assessing the respondent’s impairment relating to his thoracic spine. The appellant submitted that the Medical Assessor erred by not applying paragraph 4.12 of the Guidelines and erred by relying upon findings of reports on MRI scan to measure the percentage compression of the respondent’s thoracic vertebra.
Paraphrasing the respondent’s submission, again to provide a summary of them, they are that the Medical Assessor in accordance with paragraph 4.4 of the Guidelines undertook the assessment of permanent impairment relating to his thoracic spine based on the records, imaging, diagnostic test and radiographs that were available to the Medical Assessor at the time of assessment. The respondent submitted that there was no obligation on the Medical Assessor to obtain the X-ray of his thoracic spine. The respondent submitted it was open to the Medical Assessor to utilise the findings from the MRI scan.
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.
Section 324(1)(b) of the 1998 Act provides a Medical Assessor with the power to call for the production of whatever medical records, including X-rays, the Medical Assessor considers is necessary or desirable for the purpose of assessing a medical dispute.
Paragraph 4.12 of the Guidelines provides that the optimal method to measure the percentage compression of a vertebral body is a well centred plain X-ray.
It is obvious from the MAC that the Medical Assessor was aware that a plain X-ray had been done of the respondent’s thoracic spine on 8 March 2023. Given that, and given that the Medical Assessor considered he was “between a rock and a hard place” in terms of measuring the percentage compression of the respondent’s thoracic vertebral bodies, the Appeal Panel considers, consistent with what the appellant has submitted, that is was desirable for assessing the medical dispute that had been referred to him for the Medical Assessor to have called for the films of that X-ray. That is, those films were desirable to ensure the assessment of the respondent’s permanent impairment relating to his thoracic spine could be done properly. Consistent with paragraph 4.12 of the Guidelines, those films provided the optimal way by which the compression of the respondent’s thoracic vertebral bodies could be measured and thereby the optimal way to assess the degree of the respondent’s permanent impairment relating to his thoracic spine.
The Appeal Panel finds that the Medical Assessor erred, such that the MAC contains a demonstrable error, by not calling for the production of those X-rays.
To correct that error, and as mentioned, the Appeal Panel called for the films of that X-ray. They were produced and forwarded to Medical Assessor James Bodel. Medical Assessor Bodel reported to the Appeal Panel that X-ray was well-centred and showed the vertebral height of T6 is 2.5cm, the vertebral height of T7 is 2cm and the vertebral height of T8 is 2.5cm. Consequently, the percentage loss of height of the respondent’s T7 vertebra is 20%. That correlates with the criteria of DRE thoracic category 2, which allows for an assessment of between 5 and 8% WPI, depending on the effect an injury has on the activities of daily living. Neither party has challenged the Medical Assessor’s assessment that the effect of the respondent’s injury on the activities of daily living attracts a 2% WPI rating. The Appeal Panel agrees with that in any event. Consequently, the Appeal Panel assesses the respondent’s permanent impairment relating to his thoracic spine as 7% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 May 2024 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: | W2499/24 |
Applicant: | Issa Al Sauer |
Respondent: | Elite Professional Facade Pty Ltd |
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 Peter Giblin 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) |
| Lumbar spine | 13/4/2021 | Chapter 4 | Chapter 15 Table 15.3 | 5% | - | 5% |
| Thoracic spine | 13/4/2021 | Chapter 4 | Chapter 15 Table 15.4 | 7% | - | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
0