Flintwood Disability Services Limited v Sawaneh
[2022] NSWPICMP 338
•23 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Flintwood Disability Services Limited v Sawaneh [2022] NSWPICMP 338 |
| APPELLANT: | Flintwood Disability Services Ltd |
| RESPONDENT: | Maneneh Lillian Sawaneh |
| Appeal Panel: | Member Jane Peacock Medical Assessor Drew Dixon Medical Assessor Gregory McGroder |
| DATE OF DECISION: | 23 August 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Lumbar spine injury; appeal by employer concerned the section 323 of the Workers Compensation and Workplace Injury Management Act 1998 deduction of one-tenth made by the Medical Assessor (MA); the appellant complained on appeal that the MA did not deduct the proportion related to a previous injury in 2019 and instead has improperly taken this injury into account with the overall assessment of impairment as a result of the injury referred to him being 10 April 2020; the appellant also complained on appeal that the MA failed to take proper account of the pre-existing condition or abnormality of the lumbar spine; Held — account must be taken of the contribution of the pre-existing injury in 2019 and the pre-existing condition and abnormality of the lumbar spine demonstrated on the radiological investigations to the level of permanent impairment assessed as a result of injury on 10 April 2020 (being the referred date of injury); the available evidence at odds with a deduction of one-tenth and supported a deduction of one-half; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 April 2022 Flintwood Disability Services Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mastroianni, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 March 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 assessment was made on the basis of incorrect criteria,
· 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 WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
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).
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 WorkCover Medical Assessment Guidelines 2006.
The appellant requested a re-examination. As a result of that preliminary review, the Appeal Panel determined that the worker need not undergo a further medical examination because while the Appeal Panel found error there was sufficient material before the Appeal Panel to allow a determination to be made.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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 matter was referred to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 10 April 2020
· Body parts/systems referred: Left lower extremity (knee)
Lumbar spine
Scarring as a consequence of the injuries referred to above
· Method of assessment: Whole person impairment”
The MA issued a MAC certifying as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in WorkCover Guides
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality
Sub-total/s % WPI (after any deductions in column 6)
Lumbar spine
10/04/20
Chapter 4
Page 24-29
Chapter 15
Page 384
Table 15-3
12%
1/10th
(10.8)
11%
Left lower extremity
(knee)
10/04/20
Chapter 3
Pages 13-23
Chapter 17
Pages 523 to 564
4%
1/10th
(3.6)
4%
Scarring
(TEMSKI)
10/04/20
Chapter 14
Pages 73-74
1%
Nil
1%
Total % WPI (the Combined Table values of all sub-totals)
16%
The employer appealed.
In summary, the appellant submitted that the MA has erred and made an assessment on the basis of incorrect criteria as follows:
(a) In accordance with the referral to the MA, the impairment assessment must be confined solely to the referred injury of 10 April 2020.
(b) The MA in error, included the impairment arising from an earlier work injury of 2019.
(c) On this basis, the MA failed to deduct under s 323 the proportion if impairment due to previous injury.
(d) The MA also incorrectly applied s 323(2) such that he failed to deduct the proportion of impairment due to a pre-existing condition or abnormality.
In summary, the respondent worker submitted that the MA did not err or make an assessment on the basis of incorrect criteria and accordingly the MAC should be confirmed.
The MA took a history of injury and its sequelae as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Sawaneh states that on 10 April 2020 she went into the client’s bedroom to get a hairbrush when she slipped on the wet floor and fell on her left knee.
After the fall she had pain in the left knee and back. She reported the incident. She self-medicated and continued working thinking the problem would resolve.
She states the pain in the back and knee persisted and she consulted the local doctor. The doctor put her off work for a few days and prescribed medication and physiotherapy. She returned to work on selected duties and worked until October 2020, by which time the pain was worse and she was not able to work.
The doctor initially treated her with medication and physiotherapy. He did various
x-rays.She was referred to Dr Della Torre for the knee injury and Dr Damodaran for the back injury.
Dr Della Torre injected the knee with cortisone. He also recommended PRP injections but liability was declined by the insurer and she did not have them.
Dr Damodaran gave her epidural injections and then recommended surgery.
On 19 January 2021 she had L4/5 decompression. Post-operatively she attended physiotherapy and continues physiotherapy treatment fortnightly.
· Present treatment:
Mobic, Panadol Osteo, Cipramil and fortnightly physiotherapy.
· Present symptoms:
She states the back pain persisted after the operation, however she no longer has pins and needles in the right leg which she had before the operation. She says she gets right leg pain after she has physiotherapy. She complains of constant back pain, aggravated by sitting, walking and standing.
She says the left knee is okay at rest, however it is painful once she weight-bears. It is aggravated by standing, walking and using stairs. She cannot squat.
· Details of any previous or subsequent accidents, injuries or condition:
In 2019 she injured her back at work. She had radio-frequency neurotomy for facet joint pathology and symptoms improved but she was left with backache. Prior to that fall she had no previous back problems. She had no previous right leg symptoms.
As a child she had polio affecting her right leg and her leg is thinner as a result.
· General health:
She says she has hypertension and her health is otherwise good.
· Work history including previous work history if relevant:
She has not worked since October 2020.
· Social activities/ADL:
She is divorced and lives with her daughter. She says she has difficulty with housework and only manages light tasks. She says she has difficulty showering because of the knee pain.”
The MA recorded his findings on examination as follows:
“She is a lady of stated age, tall of medium build. She walks with a bit of a wobble and favours the left leg.
Examination of the back reveals a healed surgical scar over the L4/5 segment. The scar measures 4.5cm. There are trophic changes, marked pigmentation and suture marks are evident. When asked about the scar she said that she is not conscious of the scar as she cannot see it.
There is tenderness over the lumbosacral segment. Back movements were restricted in all planes.
She cannot squat and cannot walk on heels and toes.
She gets on and off the couch with no difficulty and is comfortable supine.
Examination of the lower limbs reveals normal sensation, normal reflexes and normal power (knee, ankle and hamstring jerks, right equals left). Straight leg raise while supine: right is 90° and left 30° which is restricted by knee and back pain. Straight leg raise is normal sitting. Nerve root tension signs are negative.
The right knee extends and flexes normally to 140°. The left knee extends normally to 0° and flexes to 100°.
There is patellofemoral crepitus and marked tenderness on patellofemoral compression.”
The MA had regard to the special investigations as follows:
“No x-rays were reviewed.
The following reports were on file:
CT lumbar spine, 12/05/20 – Dr Gacs
Localised advanced spondylitic changes at L4/5 with significant degeneration and vacuum phenomenon. The disc bulge is abutting the origin of the L5 nerves in the lateral recess without compression. Severe erosive arthropathy in the L4/5 and L5/S1 facet joints, worse on the right side.
MRI lumbar spine, 18/06/20 – Professor Magnussen
There is possible compression of the right L5 nerve root due to disc and facet joint disease at L4/5.
MRI left knee, 18/06/20 – Dr Ives
Degenerative changes most advanced at the patellofemoral compartment.”
The MA summarised the injuries and diagnosis as follows:
“summary of injuries and diagnoses:
As a result of the fall Ms Sawaneh sustained injuries to the left knee and back, aggravating pre-existing asymptomatic patellofemoral arthritis and lumbar spondylosis and sustained a lumbar disc lesion. She had conservative treatment for the left knee and decompression surgery for the lumbar spine.
· consistency of presentation
She presents in a genuine manner and there were no inconsistencies.”
The MA explained his assessment of impairment as follows:
“The facts on which I have based my assessment of whole person impairment are:
My opinion is based on the clinical history obtained, my findings on clinical examination, examination of the investigations and reports thereof, as well as my review of the accompanying documents.
REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment
The claimant had a one-level decompression of the lumbar spine. She falls into DRE Lumbar Category III(1) (see 10b). ADLs are affected but she is independent in self-care regarding her back injury. I assess 12% whole person impairment. There is no evidence of radiculopathy.
There is evidence of pre-existing lumbar spondylosis. In my opinion the pre-existing condition is a component of the current impairment. Being guided by the history of no previous injuries apart from an injury a year earlier at the same place of employment and the radiological findings which show facet arthropathy which was present prior to the 2019 incident when she had radiofrequency neurotomy, I have deducted one-tenth applying the provision of section 323. This equates to 1.2% WPI. She therefore has 10.8% WPI as a result of the injury which rounds off to 11%.
She has 4% whole person impairment due to restricted flexion of the left knee. The left knee flexes to 100° which equates to 4% WPI. There is evidence of pre-existing degenerative disease in the knee. I have deducted one-tenth applying the provision of section 323. This equates to 0.4% WPI. She therefore has 3.6% WPI as a result of the injury which rounds off to 4% WPI.
I assess 4% WPI for the left knee due to restricted range of movement. She has left knee chondromalacia patellae which equates to 2% WPI (2) (see 10b). The two impairments cannot be combined (3) (see 10b). I have therefore given the claimant the higher impairment.
There is scarring which under the best-fit principle of the TEMSKI classification falls into the 1% WPI category.”
The MA explained where his opinion differed from that of the other experts whose opinions were in evidence before him as follows:
“I note the report of Dr E Gehr dated 25 June 2021. I found the same DRE Category as Dr Gehr. He assesses post-operative radiculopathy. On examination I found normal neurology and could not reproduce his findings. He makes no deduction for pre-existing condition. In my opinion a deduction is applicable (see 10a).
I found the same impairment for restricted flexion in the knee. I found normal extension and I could not reproduce the flexion contracture found by Dr Gehr.
He makes no deduction for pre-existing condition. A deduction in my opinion is applicable (see 10a).
I note the reports of Dr Raymond Wallace dated 29 September 2020 and 17 December 2021.
I found the same impairment as Dr Wallace for the lumbar spine and the scar. I found a rateable impairment for the left knee.
The doctor attributes the impairment to pre-existing condition. I have addressed pre-existing condition under 10a.”
A s 323 deduction can only be made if the pre-existing injury, condition or abnormality has contributed to the level of permanent impairment assessed. The MA deducted one-tenth for the reasons he gave above. The appellant complains on appeal that he has not deducted the proportion related to a previous injury in 2019 and instead has improperly taken this injury into account with the overall assessment of impairment as a result of the injury referred to him being 10 April 2020. In addition, the appellant complains on appeal that the MA has failed to take proper account of the pre-existing condition or abnormality of the lumbar spine.
The Appeal Panel after a careful review of the evidence considers that the MA has erred.
The respondent worker suffered an injury to her back in 2019. She was referred for a CT scan of the lumbar spine on 20 June 2019. This investigation was not referred to by the MA. This investigation records a clinical history of “lumbar radicular pain on the right”. The findings are reported as follows:
“Mainly facet arthropathy noted, worse at L4-5 but also affects L3-4 and L5-S1. There is also moderate broad based disc protrusion at L4-5, but no canal foraminal [(sic] narrowing or nerve impingement is seen.
There is sacroiliac joint arthropathy, worse on the left with cystic change.”
What this means is that the respondent worker had chronic underlying degenerative changes in her lumbar spine which were aggravated by the injury in 2019 (not the subject of the referral).
After the fall on the 10 April 2020, the respondent worker was referred for a MRI investigation which took place on 18 June 2020 and was reported 19 June 2020. The clinical history is recorded as “pain radiating to under right side of heel”. The findings are recorded as follows:
“No fracture. No focal disc herniation.
Localised advanced spondylitic changes at L4/5 level with significant degeneration and vacuum phenomenon. The disc bulge is abutting the origin of the L5 nerves in the lateral recess without compression. Severe erosive arthropathy in the L4/5 and L5/S1 facet joints worse on the right side.”
What this means is that the respondent worker had chronic underlying degenerative changes in her lumbar spine which were aggravated by the injury in 2019 (not the subject of the referral) and again on 10 April 2020 (the subject of the referral).
The chronicity of the changes shown on the radiological investigations is consistent with the general practitioner’s (GP) clinical record of a “history of intermittent back pain treated in the past” in the certificate of capacity issued by Dr Qidwai dated 26 October 2020.
After the injury on 10 April 2020 the respondent was not successfully able to return to work, symptoms persisted and she came to surgery at L4/L5.
The assessment of overall permanent impairment is DRE II (10% whole person impairment (WPI) plus 2% WPI for activities of daily living (ADLs)) based on the surgery and the overall level of permanent impairment is not the subject of complaint on appeal.
The contribution of the pre-existing condition, abnormality or injury to the overall level of permanent impairment must be taken into account.
On the available evidence, the pre-existing condition of the lumbar spine is able to be demonstrated by the CT investigation of 20 June 2019 and the MRI investigation of 18 June 2020.
The CT investigation of 20 June 2019 demonstrates facet arthropathy and disc protrusion at L4/5.
The MRI investigation of June 2020 demonstrates severe erosive arthropathy in the L4/54 and L5/5S1 facet joints worse on the right side.”
The severe erosive arthropathy demonstrated in the L4/5 and L5/S1 facet joints does not result from injury on 10 April 2020 but is a pre-existing condition which was aggravated by the injury. The pre-existing condition demonstrated by the radiological investigations, the injury in 2019 and the injury in 2020 have all contributed to the need for surgery on which the assessment of permanent impairment is based.
Account must be taken of the contribution of the pre-existing injury (in 2019) and the pre-existing condition and abnormality of the lumbar spine demonstrated on the radiological investigations to the level of permanent impairment assessed as a result of injury on 10 April 2020 (being the referred date of injury). The available evidence is at odds with a deduction of one-tenth. Rather, the available evidence supports a deduction of one-half.
Accordingly, the Appeal Panel will revoke the MAC and issue a new MAC certifying as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in WorkCover Guides
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality
Sub-total/s % WPI (after any deductions in column 6)
Lumbar spine
10/04/20
Chapter 4
Pages 24-29
Chapter 15
Page 384
Table 15-3
12%
1/2th
6%
Left lower extremity
(knee)
10/04/20
Chapter 3
Pages 13-23
Chapter 17
Pages 523-564
4%
1/10th
(3.6)
4%
Scarring
(TEMSKI)
10/04/20
Chapter 14
Pages 73-74
1%
Nil
1%
Total % WPI (the Combined Table values of all sub-totals)
11%
For these reasons, the Appeal Panel has determined that the MAC issued on 11 March 2022 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: | W6248/21 |
Applicant: | Maneneh Liilian Sawaneh |
Respondent: | Flintwood Disability Services 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 Dr Tommasino Mastroianni and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar spine | 10/04/20 | Chapter 4 Pages 24-29 | Chapter 15 Page 384 Table 15-3 | 12% | 1/2th | 6% |
| Left lower extremity (knee) | 10/04/20 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523-564 | 4% | 1/10th | (3.6) 4% |
| Scarring (TEMSKI) | 10/04/20 | Chapter 14 Pages 73-74 | 1% | Nil | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
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