Forner v The Broken Hill Legion Club Limited
[2021] NSWPICMP 187
•7 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Forner v The Broken Hill Legion Club Limited [2021] NSWPICMP 187 |
| APPELLANT: | Allison Marie Forner |
| RESPONDENT: | The Broken Hill Legion Club Limited |
| APPEAL PANEL: | Member Paul Sweeney Dr Brian Stephenson Dr Mark Burns |
| DATE OF DECISION: | 7 October 2021 |
CATCHWORDS: | WORKERS COMPENSATION- Worker seeks a determination as to whether the condition of her lumbar spine had reached maximum medical improvement; worker suffered injury to her back on 20 October 1998 and underwent spinal decompression surgery on 19 February 2001 and 21 January 2021; Medical Assessor (MA) determined that the worker had reached maximum medical improvement after considering Guidelines 1.15 and 1.16; worker alleged that MA erred in that she had not been discharged from the care of her treating surgeon, continued to suffer referred pain in her leg, and exhibited neurological signs in her lower limbs on examination; Medical Assessment Certificate (MAC) confirmed; Held - there was no demonstrable error in the MAC and no opinion evidence to support a contrary view. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 June 2021, Allison Marie Forner (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Ian Meakin, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 26 May 2021.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,
· 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 grounds 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
The appellant suffered an injury to her low back in the course of her employment as a waitress with the Broken Hill Legion Club Limited (the respondent) on 20 October 1998. The respondent accepted liability in respect of the injury and the appellant has been paid workers compensation in accordance with the provisions of the Workers Compensation Act 1987.
When the appellant’s condition failed to improve with conservative treatment, she was referred to Dr Hall, an orthopaedic surgeon and, on 19 February 2001, he performed an L4/5 partial discectomy. While the appellant experienced initial relief of symptoms in her lower limbs following surgery, she suffered increasing left leg pain over the years. She has been unable to return to her pre-injury work.
On 18 May 2018, the appellant saw Dr Habib at the request of her solicitors. He recorded that the appellant experienced low back pain radiating to her right thigh and a recurrence of her pre-operative left lower limb pain to the foot. The appellant reported that she also experienced weakness in giving away of her left lower limb and had difficulty walking on uneven surfaces. Dr Habib suggested that the appellant should consult a spinal surgeon to advise her in respect of treatment for her low back pain and radiculopathy.
On 17 January 2019, the appellant saw Dr Doorenbosch, a neurosurgeon, in Adelaide.
Dr Doorenbosch took a history that the appellant did not feel “confident walking any significant distance as her left leg has given away on occasions”. She noted that the last MRI of her lumbar sacral spine in 2011 “demonstrated significant degenerative changes across multiple levels with canal stenosis”.After reviewing an MRI of 18 January 2019, Dr Doorenbosch suggested that decompressive surgery was likely to improve the appellant’s leg symptoms. She suggested that the appellant initially undergo a further trial of cortisone injection in an attempt to improve her symptoms without the need for surgery. Unfortunately, that treatment was unsuccessful.
On 21 January 2021, Dr Doorenbosch performed an L4/5 and L5/S1 laminectomy and bilateral L5/S1 rhizolysis at the Memorial Hospital in Adelaide.
By a supplementary statement dated 14 March 2021, the appellant says that following surgery she experienced right sided sciatica radiating into her right foot. She saw
Dr Doorenbosch for review within weeks of the surgery and was prescribed anti-inflammatories in an attempt to relieve her back and leg pain. The appellant says this:“Despite the surgery and medications, I continue to experience pain and numbness in my low back and into both legs, my currently being worse than my left. My right leg also feels very heavy. When I walk, I walk with a limp and feel that my right leg is dragging.”
The notes of the appellant’s consultation with Dr Doorenbosch on 18 February 2021 record a two-week post-operative history of right leg pain. It continues:
“Reports wound healing well and back pain not an issue.
Left leg asymptomatic.”
Dr Doorenbosch recorded that the appellant was to be reviewed on 3 March 2021.
As these circumstances gave rise to a dispute as to whether the appellant’s degree of permanent impairment was fully ascertainable in accordance with s 319(g) of the 1998 Act, the President referred it to a MA, Dr Meakin, who determined that the degree of permanent impairment was fully ascertainable. It is from this certification that the appellant appeals.
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 it was unnecessary for the worker to undergo a further medical assessment. The panel noted that the appellant requested an examination of the worker by a medical practitioner who is a member of the panel. However, as the panel were unable to find error in the MAC of Dr Meakin, there was no legal or factual foundation for a further medical examination.
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 in full but have been considered by the appeal panel.
The appellant submitted that the MAC contained both demonstrable error and the application incorrect criteria. In respect of the former, she submitted that the certification of the MA was:
(a) contrary to the evidence;
(b) failed to have regard to all relevant considerations.
In respect of incorrect criteria, the appellant alleged that the MA’s conclusions were:
(a) based on an incorrect history, and
(b) did not have regard to all relevant considerations.
The appellant referred to the history taken by the MA at pages 2 and 5 of the MAC, which recorded that surgery was performed “on 21 January 2020” whereas it was “uncontroversial” that the surgery occurred 12 months later on 21 January 2021.
Secondly, the appellant noted that on examination by the MA she had symptoms and signs of an “S1 nerve root deficit”. The submission continues:
“This was a clear sign that the worker’s condition had not stabilised in the near 4 months since surgery. The Assessor needed to explain why he could conclude that the worker’s impairment was fully ascertainable.
The material before him meant that there may or may not be persisting radiculopathy following the surgery but it was too early to tell. While the worker’s symptoms had improved the absent ankle jerk meant that radiculopathy may be persisting and could express itself in other symptoms within a short period of time. This matter was not addressed by the Assessor.”
The appellant then referred to the Guidelines, which she argued required a consideration of whether her condition “will deteriorate as well as improve”. The submission continued:
“The Assessor never turned his mind to that question. By doing so he failed to give proper reasons for his conclusion that the degree of permanent impairment is fully ascertainable”.
If he had properly considered the question of maximum improvement, the MA would have concluded that there was “a real risk of a deterioration in the next year”. As a minimum, it was necessary for him to consider whether there could be a change in signs for radiculopathy having regard to the requirements of the Guidelines.
The appellant argued that the assessor failed to have regard to the following relevant facts:
(a) she had not been discharged from the care of the treating surgeon;
(b) the length of time between surgery and assessment;
(c) the instability of intermittent symptoms following surgery;
(d) the real prospect of deterioration within the next year;and
(e) the requirement to give proper reasons addressing the criteria set out in the Guidelines.
The respondent referred to the decision of Hoeben J in Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939, where it was said that a “demonstrable error” is an error which is “readily apparent” from the MAC and the referral. On this analysis, the appellant’s submissions did not establish any “readily apparent error”.
Contrary to the appellant’s submission, the respondent submitted that it was clear from a reading of the MAC as a whole that the MA was aware that the surgery was performed in 2021 and not in 2020 as recorded at several locations in the MAC. Further, the MA had given detailed reasons as to why he reached the conclusion that the appellant had obtained maximum medical improvement. The submissions continued:
“In summary, the Respondent submits that the MAC represents Dr Meakin’s independent findings on the day of assessment. The Respondent refutes that there is evidence to suggest that the MA has made demonstrable error/s or that the assessment was based on incorrect criteria and submits that the MA has exercised his functions appropriately and provided a MAC in accordance with the legislative mandate.”
FINDINGS AND REASONS
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.
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 [2013] SC 1792 (11 December 2013). Davies J 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 panel has only considered those grounds specifically raised by the appellant in her application.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. 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.
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 an appeal to matters about which the medical assessment certificate 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 Limited v Kocak 88 ALJR 52 (Kocak) 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 Kocak, 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.”
The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
Guidelines 1.15 and 1.16 define maximum medical improvement (MMI) as follows:
“Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.”
AMA5 defines MMI as follows:
“A condition or state that is well stabilised and unlikely to change substantially in the next year, with or without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not anticipated.”
The MA recorded a history that, following her recent L4/5 and L5/S1 laminectomy and rhizolysis, there was a significant improvement in the appellant’s symptoms. He continues:
“Today she describes no pain in her left foot or subjective sensory symptoms but noting there were some symptoms 3 weeks ago. She reports intermittent discomfort behind the left knee. On the right side there is a more significant discomfort noted which extends to the back of the right knee. These symptoms are not improving with the passage of time.
There has been a recent MRI scan of the lumbar spine performed on 15 April 2021 and it is noted that a further consultation with Dr Doorenbosch has been organised for late June 2021.”
Addressing the issue on which he was asked to express an opinion, the MA said this:
“It is now 3 months since the surgery and in my opinion Ms Forner’s clinical status will not improve with the passage of time.
With reference to items 1.15 and 1.16 of the NSW Workers Compensation Guidelines for the evaluation of permanent impairment, it is my opinion that Ms Forner has reached maximum medical improvement and that her clinical status is well stabilised at this time and is unlikely to change substantially in the next year with or without any further medical treatment.
It is my opinion that her treatment has been adequate and that maximum medical improvement has been achieved. It is my opinion, therefore, that the degree of permanent impairment of the injured worker is fully ascertainable in accordance with s.319(g) of the 1998 Act.”
In the opinion of the panel the references to surgery having occurred on 21 January 2020 are typographical errors. It is quite clear from the discussion by the MA under the heading “My Opinion and Assessment” that he was well aware that the surgery took place three months before his assessment of the appellant. To reiterate, he states that “it is now 3 months since the surgery”.
On reviewing the history and examination findings of the MA, the panel is unable to find error as alleged by the appellant. Similarly, there is no error in the reasoning by which he concluded that the appellant had reached MMI.
The appellant asserts that the MA “never turned his mind” to the question of whether the appellant’s condition would deteriorate or improve in the foreseeable future. There is no basis for that assertion. The MA specifically considered items 1.15 and 1.16 of the Guidelines and referred to them in his reasons for assessment. He states quite clearly that the appellant has reached maximum medical improvement. He expressed the opinion that her condition was unlikely to change substantially in the next year with or without further medical treatment.
The appellant also argues that it was “incongruous” to find MMI given the presence of neurological signs in her left lower extremity. This argument is not based on medical opinion and has no substance.
Following an MRI scan in 2019, Dr Doorenbosch expressed the opinion that the appellant suffered L4/5 canal and lateral recess stenosis. The appellant had experienced left leg symptoms for many years. Dr Doorenbosch proposed decompressive surgery to relieve her leg symptoms, particularly those in her left leg. Subsequent to that surgery, an MRI scan of 15 April 2021 is reported to show “no recurrent disc protrusion at the L4/5 and L5/S1 level”.
Dr Meakin considered these matters in his summary of injuries. He said this:
“Post-operative scans revealed that there has been significant clearance performed. There is a significant improvement in the left leg symptoms with only intermittent symptoms radiating to the left foot but there is a continuing loss of ankle jerk and also some partial sensory loss in an S1 distribution on the left. The right lower extremity remains neurologically intact with the continuing discomfort into the right thigh area. The low back pain has not been influenced by the two surgeries.”
In the context of the evidence in this case, there is nothing “incongruous” in the opinion of the MA that the appellant’s condition was unlikely to change substantially in the foreseeable future. The appellant’s back and right leg referred pain had been largely unaffected by the decompressive surgery performed by Dr Doorenbosch. Conversely, her longstanding left leg symptoms had improved significantly as a result of that surgery. The post-operative MRI scan demonstrates a “significant clearance” and no recurrent disc protrusion at l4/5 and L5/S1.
Although the appellant’s left leg symptoms have improved following surgery, Dr Meakin found residual neurological signs in the left lower extremity in the form of sensory loss and an absent left ankle jerk. These signs reflect the appellant’s long history of nerve root compromise. Contrary to the appellant’s submission, these neurological signs do not signify that the appellant’s back condition is unstable or that it is likely to change substantially in the future. Equally, these neurological signs do not indicate that it is “to early to tell” whether the appellant will continue to experience radiculopathy in her left leg. Rather, as the MA found, they are consistent with the two decades of nerve root compression and a degree of persisting, although much reduced, radiculopathy following surgery. The neurological signs reflect the past. They are not indicative of the future and they do not suggest instability.
Plainly, the MA concluded that given the appellant’s long history there was little likelihood of improvement or deterioration. His opinion is medically consistent and there is nothing in the evidence to suggest that an alternative opinion was tenable.
Importantly, the policy underlying Guidelines 1.15 and 1.6 is that permanent impairment should not be assessed while there is some real prospect of improvement in the worker’s condition which would change the outcome of the assessment. The appellant’s lumbar condition must be assessed in accordance with the diagnosis-related estimate (DRE) model described in AMA5 Box 15-1. Clearly, in this case, permanent impairment as a result of injury can be assessed.
From the perspective of assessment of whole person impairment, the appellant’s condition is stable and there is no reason to refrain from assessment of permanent impairment at this time. The only factor which may alter an assessment of whole person impairment in the future is a spinal fusion. No doctor has canvassed the possibility of such surgery and it seems highly unlikely that it will occur. Thus, the determination that the degree of permanent impairment was unlikely to improve further and that the appellant had attained maximum medical improvement was not only open to the MA but the only available conclusion on his history and findings.
At paragraph 23 of her submissions the appellant raises a number of specific issues including the fact that the appellant has not been discharged by her treating surgeon and that the appellant has suffered intermittent symptoms following surgery. These are matters which the MA considered in determining that the appellant had achieved maximum medical improvement. Patently, he was of the view that there was no real prospect of deterioration within the next year.
Finally, the appellant asserts that the MA failed to give appropriate reasons when addressing the criteria set out in the guidelines. It is, of course, incumbent upon the MA to set out the “actual path” by which he reached his opinion in accordance with the instruction in Kocak. But the essence of his function is to form and give his own opinion on the question referred by the President based on his specialised skill and knowledge. The panel is left in no doubt as to the “actual path” by which the MA concluded that MMI had been achieved in this case.
The MA considered and expressed an opinion on the question referred to him. In forming that opinion, he specifically referred to the relevant items in the Guidelines. He took a comprehensive history, carried out a thorough physical examination, reviewed the available radiological and medical evidence. He reached conclusion that the appellant’s condition was unlikely to change. That opinion is not irrational or illogical. There is no contrary evidence from a medical practitioner. Given the circumstances of the case, the medical practitioners on the panel would reach the same conclusion. Importantly, the reasoning of the MA is comprehensible and his conclusions are explicit. There is no substance in the assertion that the MA failed to give reasons for his conclusions.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 May 2021 should be confirmed.
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