Flynn v Paper Personnel Pty Ltd
[2021] NSWPICMP 172
•17 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Flynn v Paper Personnel Pty Ltd [2021] NSWPICMP 172 |
| APPELLANT: | Daniel Flynn |
| RESPONDENT: | Paper Personnel Pty Ltd |
| APPEAL PANEL: | Member Deborah Moore Dr David Crocker Dr Drew Dixon |
| DATE OF DECISION: | 17 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Medical Assessor (MA) asked to assess lumbar spine and left lower extremity (hip and knee); MA erred in failing to assess the left hip; appellant suffered a significant deterioration in his lumbar spine condition after the Medical Assessment Certificate (MAC) was issued and prior to the preliminary assessment; appellant had not reached maximum medical improvement; appellant re-examined on 6 September 2021; no challenge to knee assessment; Held - lumbar spine assessment increased but no impairment for the hip found; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 January 2021 Daniel Flynn (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr George Weisz, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 18 December 2020.
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).
RELEVANT FACTUAL BACKGROUND
Following the filing of the Appeal, on 6 April 2021 the appellant’s solicitor filed extensive submissions confirming that he had suffered a significant deterioration in his lumbar spinal condition which commenced on 20 February 2021 and was continuing, as a consequence of which he had been referred back to his treating neurosurgeon.
A good deal of additional medical evidence was filed in support of those submissions.
On 9 April 2021 the Panel convened and determined that in light of the submissions and the additional medical evidence the appellant had not reached maximum medical improvement and made arrangements for him to be examined by a member of the Panel later in the year.
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.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination for the reasons stated above. In addition, it was clear that there had been an error by the MA as regards his assessment of the left hip.
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. We have also taken into account the additional evidence filed by the appellant in April 2021.
Further medical examination
Dr David Crocker of the Appeal Panel conducted an examination of the worker on
6 September 2021 and reported to the Appeal Panel.
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 three respects as follows:
(a) in failing to examine his left hip;
(b) in failing to identify a known criterion of assessment of the hip pursuant to the Guides or AMA 5; and
(c) in respect of the lumbar spine impairment, the deduction of 50% pursuant to
s 323 constitutes an obvious error by application of erroneous legal principal.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 MA for assessment of whole person impairment (WPI) in respect of the lumbar spine and the left lower extremity (hip and knee) resulting from an injury on 10 October 2018.
We note at the outset that there is no challenge to the MA’s assessment of the left knee.
After obtaining details of the circumstances of the injury, treatment and symptoms, the MA then set out his findings on physical examination as follows:
“The musculo-skeletal system was examined with particular attention to the lumbar spine and the lower extremities. He walked with no limp and no support was required. He sat during the interview with no obvious discomfort. He was stable on standing on heels, on tip toes and on each leg; he bent down to his knees voluntarily, whilst demonstrating the injury sustained.
He undressed without help and climbed up to the examination couch with no assistance. He had full spinal mobility and no spam was recorded, but tenderness at the left sacro-iliac joint level. Leg raising was normal at 90 degrees. Reflexes (adductors, cremaster, patellar and Achilles) were all positive. Sensory in legs was not affected. Measurements of the circumferences indicated 48-cm on the right thigh level as opposed to 45-cm on the left; at the leg levels, measurements were 40 as opposed to 38-cm.
Hip movements were unrestricted and not in pain, there was however tenderness at the left trochanter femoris level. Movements of the knees, ankles and toes were unrestricted and not in pain. Flexion and extension of the knees were equals and of full extent; tender patella compression was noticed and some mild crepitations heard.”The MA then noted the contents of the radiological material as follows:
“I perused an MRI scan of the lumbar spine (4.2019) that indicated mild disc protrusion at L4/5 level (sagittal no. 9 image and coronal no. 14 image) on the myelographic series. The discographic series of the MRI indicated desiccated L4/5 disc and a small High Intensity Zone, namely rupture of the annulus surrounding the disc, explaining his stated pain. The MRI of the knee (on the same date) indicated medial condyle damage, infraction and oedema, meniscal tear, undisplaced. No follow up of this important finding was undertaken. No plain x-rays were performed. In file, films not seen, disclosed are ultrasound tests, reporting double bursitis in the hip area (trochanter and iliopsoas).”
The MA summarised the diagnosis as follows:
“Mr Flynn was diagnosed with a lumbar disc disrupture and degenerative disc. Also diagnosed was a left knee damage of the femoral condyle, which probably has advanced since, but no follow up was undertaken. He was also diagnosed with retro-patellar condral damage and with hip area bursitis. His investigations were not complete and treatment in 2020 was minimal.”
The MA then explained his reasons for assessment as follows:
“There is aggravation of pre-existent lumbar disc degeneration and left knee bony and meniscal injury, aggravated and accelerated by continuous kneeling.
The lumbar spine is assessed as DRE. II, namely ch. 15.4 (pg. 384) in AMA5 Guides). This assessment is equivalent to 5% +1% for ADL= 6%, but will attract 1/2 deduction, as just one year prior to the accident there was radiological proof of precise spinal diagnosis, leaving 3%WPI.
The hip bursitis cannot be assessed as it requires parallel alteration in the hip mobility, which is not the case (from table 17-44, pg. 547 in AMA5 Guide).
The knee, with serious injury was insufficiently diagnosed radio-logically: (no standing or better yet Rosenberg views on plain x-rays was performed, as required, para 3.23, pg 17 in Workcover Guide). Therefore, the narrowed space in the joint cannot be determined.
Same restrictions exist on assessing the retro-patellar space (see table 17-31), that requires retro-patellar assessment on both sides, and provided no other pathology exists. The assessment was therefore based on muscular atrophy, based on ch. 17.6 (pg 530) in AMA5 Guides.
The hip remains with no impairment; for the knee is of 13%+13% lower extremity impairment = 26%. The lower limb is 10%WPI. All combined reaches 10%+3% = 13% WPI.”In commenting upon the other medical opinions, the MA said:
“Dr Lawrence, family practitioner’s informative regarding the “2017 back symptoms and previous history of back pain”, investigations conducted CT scan (with no results available) and treatment by spinal injection under CT control.
Dr Pope, neurosurgeon (2019) also mentioned sciatica in 2017 and opted for conservative treatment.
Dr Coolican, orthopaedic surgeon, report dated 9.2019: briefly on the knee, also suggesting conservative treatment, with only potential future arthroscopy.
Dr. Gehr, orthopedic surgeon’s very extensive description; with respect, I differ in assessment.
Dr. J. Bentivoglio, orthopedic surgeon’s detailed report dated 2.2020, with different assessment of impairment.”Dealing firstly with the left hip, the appellant attached a statement dated 15 January 2021 which contained a detailed account of the interaction between him and Dr Weisz on 10 December 2020.
We accepted that evidence and concluded at our preliminary review that the MA had indeed failed to formally examine Mr Flynn’s left hip, such that this ground of appeal is successful.
As regards the s 323 deduction in respect of the lumbar spine, the appellant submits that he acknowledged that he had an episode of back pain in March 2017, for which he received a cortisone injection and the injury “quickly resolved itself”.
The appellant added:
“In March 2019 Dr Susan Lawrence referred Mr Flynn to Dr Pope, neurosurgeon in respect of the injury of 10 August 2018. Her letter of referral contains a history of the 2017 injury. This is the extent of the evidence regarding any pre-existing injury or condition with potential relevance to s.323.”
The appellant continued:
“The MA records ‘established and documented lumbar disc pathology in 2017’ as justifying a 50% deduction pursuant to s.323.
In so doing, he fell into the same error of principle in Cole v Wenaline [2010] NSWSC 78 (Cole). He overlooked or ignored the necessity for a finding of causation required to conclude the necessary deduction.
As Schmidt J observed in Cole, at paras [29-30], this fact alone does not permit an assumption that the earlier injury or condition has contributed to the assessed impairment. This seems to be precisely what the MA has done. He applied an incorrect test to the question of s.323 reduction.”
We accept this submission, consistent with the principles set out in Cole.
Because of the errors identified, and in light of the clear deterioration in Mr Flynn’s examination, the Panel arranged for him to be re-examined by Dr Crocker on 6 September 2021.
Dr Crocker has reported to the Panel as follows:
“The date of the re-examination was brought forward in view of Mr Flynn’s plans to travel to the United Kingdom subject to Australian Government approval and other administrative issues.
1. The worker’s medical history, where it differs from previous records
Mr Flynn gave indication of his agreement with the history outlined in the Medical Assessment Certificate dated 18.12.20 prepared by Dr George Weisz. This was based upon his review of the assessment document.
2. Additional history since the original Medical Assessment Certificate was performed.
It is evident that the further submissions inclusive of a personal statement from
Mr Flynn indicate that on the morning of 20.2.21, when visiting his parents, he developed an episode of severe pain to the low back with radiation to the lower limbs. This was associated with nausea. A General Practitioner was called to the home such that he be reviewed. Medication prescribed included that of Endone and Mobic.
Further review took place with his General Practitioner, Dr Susan Lawrence of Chatswood, and Dr Raoul Pope, Consultant Neurosurgeon of North Sydney.
Further radiological investigations were attended inclusive of a CT scan examination of the lumbar spine of 17.3.21 and an MRI examination pertaining to the same region on 22.3.21. I have noted copies of these radiological investigations contained in the documentation provided.
With respect to his current status, he reports that he is continuing to experience moderate pain on a frequent basis to the left lower lumbar region of the back on a daily basis. Pain when present may persist. He indicates that he also has a feeling of tightness/muscle spasm to the region overlying the posterior chest wall.
Pain extends to the regions of the left buttock and left posterolateral thigh.
He reports that there is some limitation of truncal mobility.
Mr Flynn is continuing to experience intermittent pain and a “locked feeling” to the region of the left hip. Pain is evident from a mild to moderate degree. He considers that there may be limitation with movement of the region.
With respect to activities of daily living, he indicates that he has some difficulty getting comfortable. He tends to place a pillow between his knees to facilitate this.
Increased discomfort arises to the low back if seated for periods of greater than approximately 5-10 minutes. He did not comment upon particular difficulty with standing.
He endeavours to undertake regular walking but notices some left knee discomfort and a ‘click’ if this is on a more extended basis. He states that he can negotiate stairs.
He is independent in relation to aspects of personal care.
With respect to treatment, oral medication utilised at present includes the following: Mobic, Endone on an occasional basis and Panadol.
He attends his General Practitioner approximately every 2-3 weeks. He was reviewed by Dr Pope a few weeks prior to the current assessment. Further review has been suggested to take place if he is present in Australia at that time. Dr Pope had raised the option of a possible further injection to the region of the lumbar spine. In this regard,
Mr Flynn reported that he had undergone an injection procedure pertaining to the region in March with this only affording him limited symptomatic benefit.3. Findings on clinical examination
Mr Flynn was a cooperative man in nil apparent physical distress while at rest.
General inspection of the trunk demonstrated mild flattening of the thoracolumbar curve.
Active truncal range of motion was approximately as follows: Left axial rotation unrestricted; right axial rotation two-thirds that of normal; left coronal rotation unrestricted; right coronal rotation unrestricted; posterior sagittal rotation unrestricted; anterior sagittal such that Mr Flynn could reach to the level of the upper tibial thirds in a cautious manner.
Tenderness was present with palpation overlying the lower posterior lumbar spinous processes and lumbosacral junction. There was also tenderness with palpation to the regions overlying the left sacroiliac joint and buttock.
Nil muscular spasm or guarding was apparent with palpation overlying the paralumbar musculature.
Mr Flynn exhibited a normal and symmetric gait when observed walking within the confines of my office. He was able to undertake a partial squatting manoeuvre in a cautious manner.Active straight leg raising was approximately to 50° bilaterally with some reported discomfort arising to the region of the left hip/thigh with testing to that side.
Active range of motion was assessed at both hips with use of a goniometer on multiple occasions with maximal findings noted as follows:
Hip Movements RIGHT LEFT Flexion 115° 115° Extension Nil contracture Nil contracture Adduction 30° 30° Abduction 45° 45° Internal Rotation 40° 45° External Rotation 45° 45°
Mild tenderness was reported with palpation overlying the lateral aspect of the left hip.
Girth measurements within the lower limbs demonstrated some reduction with respect to thigh and calf girth to the left side as previously observed by the Medical Examiner.
There was nil real or apparent leg length discrepancy.4. Results of any additional investigations
At the consultation, Mr Flynn had with him the following radiological studies without accompanying reports:
·MRI examination (12.4.19) of the lumbar spine and left knee
·MRI examination (19.3.21) of the lumbar spine
·Interventional procedure under CT guidance (30.5.19) MRI examination (6.9.19) of the left knee
·MRI examination (31.5.21) of the left knee
·CT scan examination (10.10.18) of the lumbar spine (disc only)
·Diagnostic musculoskeletal ultrasound examination (22.2.19) of the buttocks/thigh (disc only)
5. Determination of permanent impairment
It is evident that the regions that were for assessment by the Medical Examiner had been the lumbar spine, left hip and left knee. In relation to the current Medical Appeal, it is apparent that the assessment pertaining to the left knee is not subject to dispute.
It is reported that Mr Flynn’s condition pertaining to the region of the lumbar spine has worsened since the time of the medical assessment of 10.12.20.
With respect to a determination of Whole Person Impairment pertaining to the region of the lumbar spine, it is considered that Mr Flynn’s presentation remains one of a DRE Category II rating, ie 5-8%. This is on the basis of the presence of asymmetry of range of motion of the trunk and non-verifiable radicular complaints in the absence of neurological dysfunction/radiculopathy.
With respect to a rating pertaining to activities of daily living, it is considered that there have been further adverse impacts upon these since the time of the earlier assessment such that a 2% weighting is currently considered appropriate. On this basis, a 7% WPI is determined.
In relation to a deduction, it is apparent that this had been one of the grounds of the appeal.
At the time of the current assessment, Mr Flynn confirmed that he had previously experienced pain to the region of the lumbar spine in 2017 and had consulted his General Practitioner. Documentation confirms that the presentation had been discogenic in type based on the clinical examination and investigations. An injection procedure had been attended coupled with other conservative treatment. In his report of 9.5.19, Dr Pope had indicated that Mr Flynn’s complaints had “resolved spontaneously with no issues up until the new injury on 10 October 2018” following those treatment initiatives.
Taking the above into account, it is considered that a one-tenth deduction is appropriate in relation to the region of the lumbar spine pertaining to contributory impairment as a result of his pre-existing condition. On this basis, a 6% WPI is determined.
In relation to the region of the left hip, active range of motion was found to be satisfactory and equal to that of the non-affected contralateral side.
It is likely that the clinical presentation had included that of trochanteric bursitis based upon the complaints and earlier radiological investigation. I do not consider, however, that an impairment determination is appropriate at the present time taking this into account as the clinical finding was only one of mild reported tenderness upon physical examination and nil observed abnormal gait at this assessment that would be required pertaining to a potential DRE impairment rating.
I do not consider that any other methodologies are applicable pertaining to this region in Mr Flynn’s case.
In relation to the region of the left knee, it has been indicated that the determination pertaining to this region had not been subject to appeal. In this regard, the Medical Examiner had determined a 10% WPI with nil deduction.
Based on the above and when taking into account the impairments of 6% and 10%, a final combined Whole Person Impairment of 15% is determined.”
The Panel agrees with the findings and assessment of Dr Crocker.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 December 2020 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
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 George Weisz 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 | 10.10.18 | Chapter 4, pp 24-30 | Chapter 15, 15.4, | 7% | 1/10th | (6.3% rounded down to) 6% |
| 2. Left Lower Extremity (Hip, Knee) | 10.10.18 | Chapter 3, 3.14, pp 13-23 | Chapter 17, 17.2d, | 10% | - | 10% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
Ms Deborah Moore
Member
Dr David Crocker
Medical Assessor
Dr Drew Dixon
Medical Assessor
17 September 2021
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