Fletcher v Cope Transport
[2022] NSWPICMP 521
•19 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Fletcher v Cope Transport [2022] NSWPICMP 521 |
| APPELLANT: | Darren Fletcher |
| RESPONDENT: | Janala Pty Limited t/as Cope Sensitive Freight |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Gregory McGroder |
| MEDICAL ASSESSOR: | John Stephenson |
| DATE OF DECISION: | 19 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION- |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 October 2022, Darren Fletcher (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 8 September 2022.
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 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.
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 the PIC Rules.
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
On 31 January 2013 and 18 April 2013, the appellant suffered injury to his left ankle and foot in the course of his employment with Janala Pty Limited t/as Cope Sensitive Freight (the respondent). Following the injury, he came under the care of his general practitioner Dr Singh of Mayfield who treated him with painkillers and physiotherapy. When his condition did not improve, he was referred to Dr Rao, an orthopaedic surgeon.
On 21 November 2014, the appellant underwent a lateral collateral ligament reconstruction of the left ankle under Dr Rao. Unfortunately, this did not alleviate his left ankle symptoms. Dr Rao several further procedures culminating in a fibular ostectomy of the left fibula on 3 June 2016. These procedures also failed to rectify the instability in the appellant’s left ankle.
Dr Rao recommended a fusion of the ankle. However, the appellant has not accepted the recommendation as the procedure is irreversible and would result in him having no movement at the ankle. Dr Rao also referred the appellant to a pain specialist, Dr Tame, for treatment of chronic pain.
The appellant complains of pain and restriction in movement in his ankle which interferes with his occupational, domestic, and recreational activities. He has been unable to return to work.
On 21 October 2019, the appellant saw Dr Ghabrial, an orthopaedic surgeon, at the request of his solicitors for the purpose of providing an opinion on the degree of whole person impairment (WPI) as a result of the injury.
Dr Ghabrial expressed the opinion that while surgery had resulted in the appellant having a reasonably stable ankle, he suffered residual weakness of the muscles. He opined that flexion, extension, eversion and inversion of the ankle demonstrated Grade 4 muscle weakness
Dr Ghabrial assessed WPI in accordance with Table 17-8 of AMA 5 as 16%. He also found a sural nerve sensory deficit at the ankle which he assessed at 1% WPI and scarring which he also assessed at 1%WPI. Applying the Combined Values Chart, he expressed the opinion that the appellant suffered 18% WPI.
Dr Wallace, an orthopaedic surgeon, saw the appellant at the request of the respondent on 27 March 2019 and provided a report of 7 December 2020. Relevantly, he recorded that on examination of the lower limbs there was “calf circumference of 43cm bilaterally”. He diagnosed a lateral collateral ligament injury as a result of the incidents in January and April 2013.
Dr Wallace expressed the opinion that the appellant had 3% WPI as a result of loss of range of movement in accordance with Tables 17.11 and 17.12 of AMA 5. He assessed the surgical scar as giving rise to 0% WPI. In respect of a sural nerve sensory deficit, he recorded:
“Normal neurovascular function distally at the left leg at the time of review on 2 December 2020.
He underwent nerve conduction studies on 4 May 2016, some 18 months after the surgical intervention which showed normal function at the left sural nerve.”
In respect of muscle weakness, he said this:
“Mr Fletcher had no evidence of muscle weakness at the left ankle on clinical examination at the time of review on 2 December 2020. I note at the time of my review, his calf circumference was symmetrical at 43cm.
There is no known pathology that would lead to global weakness at the left ankle as a result of a lateral collateral ligament injury at the joint.”
The difference of opinion as to WPI between Dr Ghabrial and Dr Wallace gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the dispute to Dr Anderson for assessment. It is from his MAC that the appellant brings this appeal.
PRELIMINARY REVIEW
The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination by a member of the panel. The panel noted that the appellant’s solicitor requested a further medical examination. However, as the panel was unable to identify error in the MAC it is inappropriate to conduct a further medical examination for reasons which are set out below.
EVIDENCE
The appeal panel has before it all the documents which 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 which 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. In summary, the appellant submits that the MA erred in that he did not assess left ankle muscle strength or provide a path of reasoning for his approach to assessment.
The appellant referred to the comment that in the circumstances of this case it was inappropriate to evaluate muscle strength in addition to loss of movement. He continued:
“The MA erred in failing to assess the Applicant’s left ankle strength. The MA did not provide adequate explanation as to how other methods in the guides adequately accounted for the loss of ankle strength.”
In respect of the second ground the appellant submitted that the MA had failed to provide “any clinical findings based on the applicant’s presentation at the time of the examination”. The absence of such findings supported his argument that the MA failed to provide appropriate reasons for his opinion.
The respondent submitted that the MA was satisfied with the range of motion assessment methodology. He, therefore, did not assess muscle strength.
The respondent also submitted that “the criteria for application of functional assessment” was not apparent from the MAC.
DISCUSSION AND FINDINGS
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[1]. The Judge 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 Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
[1] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan[2], 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.
[2] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW[3]. 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.
[3] [2008] NSWCA 116.
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 MAC 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 Ltd v Kocak[4] 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 Wingfoot 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.”
[4] [2013] 252 CLR 80.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd[5].
[5] [2014] NSWSC 1344 (26 September 2014).
The MA recorded the following findings in respect of the appellant’s lower limbs:
“His walking was fairly normal. He chose to be in bare feet and finds this more comfortable at home. Due to his size and morphology, it was not possible to accurately measure the leg lengths, nor the thigh circumferences. The calves had the same circumference.
The surgical scars over the lateral side of his left ankle had healed satisfactorily, although were still quite obvious.
I was unable to demonstrate any neurological dysfunction in the lower limbs.”
The MA reported that the appellant had significant restrictions in left ankle movement compared with the right. He also noted that there was mild swelling of the left ankle but not the right.
Dealing with the reports of other medical practitioners, the MA noted that his assessment was close to that of Dr Wallace. He also recorded that Dr Ghabrial had a “very high whole person impairment at 16%”. He continued:
“In order to achieve this, he has apparently resorted to strength evaluation as well. With great respect, I am not persuaded that this is appropriate in these circumstances. He also finds neurological dysfunction with whole person impairment of 1%. I am unable to demonstrate this.”
In the opinion of the panel, the MA was right to conclude that it was inappropriate to assess WPI by manual muscle testing in the circumstances of this case. There are several compelling reasons for this conclusion.
First, Ch 17.2 (e) of the Guides states:
“Manual muscle testing, which typically involves groups of muscles, depends on the examinee’s cooperation and is subject to his or her conscious or unconscious control. To be valid, the results should be concordant with other observable pathologic signs and medical evidence.”
In this case there is a complete absence of either signs or medical evidence which would suggest the presence of widespread loss of muscle strength in the ankle. The finding of both Dr Wallace and the MA that no muscle wasting could be demonstrated in the appellant’s calf is not consistent with significant loss of muscle strength.
Secondly, the Guides state that:
“Individuals whose performance is inhibited by pain or by the fear of pain are not good candidates for manual muscle testing, and other evaluation methods should be considered for them.”
The appellant in this case has been treated by Dr Simon Tame, a pain management specialist. He diagnosed neuropathic pain of the appellant’s left foot and ankle which he thought was consistent with chronic regional pain syndrome (CRPS). By a report dated 5 March 2015, Dr Tame said this:
“1) Darren has got neuropathic pain of the left foot and ankle which is consistent with CRPS.
2) Darren’s mechanical foot and ankle issues seem to be significantly improved following surgery.
3) Darren is on moderately high doses of narcotics which do not appear to be particularly effective for his neuropathic foot and ankle pain. Hopefully other strategies will help in weaning his narcotics as described above.”
Dr Tame also described the results of psychometric testing. He noted that the appellant:
“Reports extremely high levels of fear reinjury, very low pain self-efficacy and generally high levels of depression, anxiety and distress.”
By a subsequent report of 11 March 2015, Dr Tame expressed the opinion that the appellant met the diagnostic criteria for CRPS. One of the criteria was that his pain which was “out of proportion with injury”.
By a report of 23 June 2015, Dr Tame suggested that, if the appellant did not meet all of the criteria for CRPS in Ch. 17 of the Guidelines, the alternative diagnosis was “persistent neuropathic pain”. He recommended that the appellant undergo spinal cord stimulation.
Both Dr Rao and Dr Singh, the appellant’s general practitioner, have expressed the view that he had CRPS. By a report of 24 May 2020, Dr Singh stated that:
“He continued to suffer from chronic regional pain syndrome with global aching pain around the joint of his left ankle with intermittent sharp exacerbations on and off.”
She continued:
“He became v depressed and anxious and his focus was always on his ankles and he became unfit to work due to physical and mental state.”
Dr Singh concluded thus:
“Darren suffers from secondary psychological injury as his mental status is a direct impact from his physical injury and hence suffers from chronic pain syndrome and regional complex pain.”
These opinions that the appellant suffers from chronic pain are reinforced by his description of his current symptoms in his statement. The appellant complains of a constant aching pain in his left ankle radiating into his foot and up his leg. He has burning pain, a “sharp knife-like” pain, and is unable to rest his ankle on a pillowcase as it causes irritation and pain. He complains of a constant itching sensation on the outside of ankle and an inability to wear shoes and socks. These complaints are not consistent with collateral ligament injury or the surgical procedures undertaken to treat it.
Given the consistent diagnosis of a variant of chronic pain by the appellant’s treating doctors and his current complaints, the evaluation of permanent impairment by attempting to measure muscle strength is strongly contraindicated.
Thirdly, Dr Wallace, the respondent’s qualified medical practitioner, found no evidence of muscle weakness of the left ankle on clinical examination on his review on 2 December 2020. He commented that:
“There is no known pathology that would lead to global weakness of the left ankle as a result of a lateral collateral ligament injury at the joint.”
The medical practitioners on the panel concur with this opinion.
In the context of the Guidelines and the evidence in this case, the reasons why the MA chose to measure impairment by the range of movement method are plain. The only appropriate methodology to assess WPI in accordance with Table 17.2 of the Guides in the circumstances of this case was range of movement. The path by which he chose that method is obvious to the panel. It does not suggest error in the assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 September 2022 should be confirmed.
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