Fraser v Good Sight Company Limited - [2021] NSWPICMP 48

DETERMINATION OF APPEAL PANEL
CITATION:	Fraser v Good Sight Company Limited [2021] NSWPICMP 48
APPELLANT:	Terence Fraser
RESPONDENT:	Good Sight Company Limited
APPEAL PANEL:	Member Deborah Moore Dr David Crocker Dr Gregory McGroder
DATE OF DECISION:	15 April 2021
CATCHWORDS:	WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) erred in determining that pathology at the T7 level was unrelated to the original injury in September 2003, and did not consider the X-ray of 1 July 2005; three Medical Members of the Appeal Panel reviewed the radiological film that had been performed on 1 July 2005 to determine the degree of vertebral body compression within the thoracic spine; Held- upon inspection, the doctors agreed that there was clear evidence that there had been a compression fracture with anterior wedging of the vertebral body of T8; it was also considered that there was the appearance of some degree of compression to a lesser degree of T7; the overall impairment rating was thus increased; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 November 2020 Terence Fraser 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 23 October 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, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. The appellant requested a re-examination on the basis that the MA failed to consider relevant radiological material.
The Panel agreed that the MA did not appear to have considered the plain x-ray of the thoracic spine dated 1 July 2005.
It was considered appropriate that the medical members of the appeal panel review the radiological film that had been performed on 1 July 2005 to determine the degree of vertebral body compression within the thoracic spine.
Mr Fraser had indicated that he did not want to release the radiological investigation for fear of it becoming misplaced. As a consequence, the study was brought to the office of Dr David Crocker on 23 March 2021 where it was inspected by Dr Crocker and Dr Greg McGroder.
We will report further on the results of that review later.

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.

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 determining that pathology at the T7 level was unrelated to the original injury in September 2003, and did not consider the x-ray of 1 July 2005.
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) of the thoracic spine and lumbar spine resulting from an injury on 1 September 2003.
The MA took the following history:
“Mr Fraser advised that on 01/09/03, he was assisting with the installation of a large water tank which was being used in a car washer system. The tank was being towed by a vehicle up a ramp on makeshift rollers. Mr Fraser was doing his best to guide the system from banging into a wall and was located between the tank and the wall. Unfortunately, all did not go according to plan and the tank slid sideways, partially crushing him against the wall.
His further clinical management was conservative.
The situation seemed to deteriorate in early April 2005 when he was using a 10ft pole to try to lever a forklift up so that he could change the wheel. He described that he hurt his back in this manoeuvre as well.
He has subsequently been seen by a multiplicity of specialists and has had a multiplicity of investigations. His clinical management has continued conservatively.
He described that on 25/11/19 some form of surgical procedure was conducted to his back, although he was unable to advise what this was. He also advised that injections were conducted to see if surgery would be helpful. There was no change from the injections and therefore, he was not placed on the surgical list.
He advised that the tablet Pregabalin had been tried but he experienced adverse effects to this and it was ceased.”
Present symptoms were described as follows:
“Pain, often of a stabbing quality in the mid-thoracic spine between the shoulder blades. Coughing and deep breathing make this worse.
Low back pain which is constant and aching. This sometimes radiates down the legs. Usually the left side is more affected than the right. More recently there has been low back pain radiating to the right. He finds difficulty on stairs.”
Social activities and activities of daily living (ADL’s) were described as follows:
“He enjoys fixing things and tinkering. Previously he was very keen on fishing, camping and water skiing. He is unable to pursue these activities now. He does some gardening in raised vegetable beds. His driving is restricted to about half an hour on any one occasion. At home, his mother does most of the housework. He occasionally tries to use a vacuum cleaner, although this is painful. He can manage the grass using a self-propelled mower.”
Findings on physical examination were reported as follows:
“Back. Pain was located throughout the length of the thoracic spine between the shoulder blades. There was associated tenderness.
Pain in the lumbar spine was in the mid-line in the lower segmental levels. There was associated tenderness there and also in the right sacro-iliac joint.
The spinal curvatures were normal. There was no scoliosis or muscle spasm.
On forward flexion he could only reach as far as his mid-thighs with a McRae-Wright movement of 1.5cm. This is very stiff. 5cm is the lower limit of normal. Extension was minimal. Lateral flexion and rotation to each side were grossly reduced to half the range bilaterally.
Lower Limbs. He walked normally. He could also stand on his heels and toes but could not squat…
Sensation to pinprick was slightly reduced over the lateral side of the right ankle and slightly greater over the medial side. This could suggest irritation of the right S1 and L4 nerve roots respectively. Elsewhere sensation was throughout the normal distribution and was equivalent. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.
Straight leg raising was conducted in the sitting position on the edge of the couch. He could fully extend each knee without difficulty.”
The MA then summarised the radiological material he had before him. There was no reference to the x-ray of 1 July 2005.
The MA then summarised the injuries and diagnoses as follows:
“Mr Fraser gives a history of a thoracic injury and to a limited extent, lumbar injury which occurred in September 2003. He continues to have associated dysfunction. The major finding has been degenerative changes throughout which have been identified as progressing shortly after this event. The major injury appears to have been a compression fracture at T8. Much later on, some 14 years after the original injury, there is a claim for a compression fracture of T7 to be included. Despite extensive radiological and nuclear medicine investigations over the preceding 12 years, this is the only occasion where T7 has been mentioned. It therefore seems most unlikely that this can reasonably be associated with the event of September 2003.”
The MA assessed the thoracic spine at 15%WPI and the lumbar spine at 7%. He deducted one-tenth pursuant to s 323 of the 1998 Act, giving a total of 19% WPI.
He said:
“The thoracic spine is addressed in DRE Thoracic Category III in Table 15-4 on Page 389 of AMA 5. DRE Category III is selected, since there is a compression fracture of T8 of 40% (between 25% - 50% as identified in the SIRA Guidelines Page 27, Paragraph 4.3).
The lumbar spine continues to demonstrate significant dysfunction, although there are no features which are of significance which would confirm radiculopathy. He is therefore in DRE Lumbar Category II in Table 15-03 of AMA 5 on Page 384. This provides a whole person impairment ranging between 5% and 7%, depending on the activities of daily living. For this, he would attract a further 2%, giving 7% WPI.”
In commenting upon the other medical opinions, the MA said:
“Specialists, Dr James Bodel, Dr WDG Patrick and Dr Richard Powell, have identified DRE Category II for the lumbar spine. Initially Dr Patrick in his report of 27/02/19 selects DRE III for the thoracic spine which conforms with the findings of Dr Richard Powell in his report of 10/06/19 and also myself. Later, Dr Patrick in his report of 15/01/20 draws attention to the inclusion of T7 with a compression fracture which is identified from an MRI scan of 02/10/17. With the greatest of respect, this is the first (and only) occasion on which pathology in T7 is identified, despite extensive radiological and nuclear medicine investigations in the preceding 12 years. I am therefore not persuaded that some 14 years later after the original injury that this finding in T7 can reasonably be attributed to the initial event of September 2003.”
The appellant submits that the MA’s findings with respect to causation of the T7 compression was contrary to the evidence.
Moreover, he failed to make any reference to the imaging studies of July 2005 despite him apparently, according to the appellant, taking a photograph of those studies at the time of his assessment.
The appellant points out that Dr Powell in his report of 10 June 2019 commented that: “the plain x-ray of the thoracic spine of 1 July 2005 indicated a nearly 50% loss of vertebral body height of T8 vertebrae.”
The appellant added:
“Dr Powell makes a point that…the T8 fracture ‘was the result of an acute injury occurring prior to 2005 and on the balance of probability…the most likely cause would be the incident in 2003.’”
The appellant conceded that although Dr Powell did not identify pathology at T7 as Dr Patrick did, “it is clear that if there is any such pathology… at T7 it too would be related to the 2003 incident in the same way as the T8 pathology.”
The appellant continued:
“If it is in fact established that there is pathology at T7 evident on the 2005 scans, …there is therefore no such 14 year gap or hiatus in pathology as was articulated by the MA, and clearly formed the basis of his opinion in regards to causation.”
The appellant quotes at length from the report of Dr Patrick in support of his submissions.
The appellant concludes:
“Dr Powell and the MA have erred in respect to their finding of a compression fracture of T8 of some 40%. The radiological findings read: ’There is anterior wedging of the T8 consistent with a compression fracture. Anterior height 40% of normal posterior height.’
This is not in fact a finding of a 40% loss of vertical body height but rather translates to a 60% loss, being 40% of normal.
Whilst the MA has correctly reported the 70% loss as per the MRI scan of 2 October 2017, and despite rejecting that the T7 injury occurred in September 2003, for the reasons above that finding in respect to causation ought to be rejected.”
The medical members of the appeal panel reviewed the radiological film that had been performed on 1 July 2005 to determine the degree of vertebral body compression within the thoracic spine.
They reported on 25 March 2021 as follows:
“A single plain radiological film of a lateral view of the chest / thoracic spine was inspected. It was considered to be of average quality for this purpose.
Upon inspection, the doctors agreed that that there was clear evidence that there had been a compression fracture with anterior wedging of the vertebral body of T8. It was also considered that there was the appearance of some degree of compression to a lesser degree of T7.
Taking into account the dimensions of maximal compression of the vertebral bodies of T7 and T8 utilising adjacent vertebrae for comparative purposes, it was found that there were 20.7% and 51.7% reduced heights at these levels respectively.
When these are added in accordance with the Workers’ Compensation Guidelines (Chapter 4, 4.30, pg 27) this equates to 72.4%. The Guidelines indicate that when there is a total loss of greater than 50%, a DRE category IV is applicable ie. 20-23% WPI pertaining to the thoracic spine.
It is evident that the deduction that had been applied by the AMS was not in dispute.
The determination of the lumbar spine inclusive of a weighting for ADL’s and also with a deduction had equated to a 6% WPI. This determination was not disputed.
When taking into account a 20% WPI for the region of the thoracic spine and making a 1/10^th deduction, 18% WPI is determined.
Taking into account the impairments of 18% and 6%, a final WPI of 23% is accrued.”
The Panel overall accepts these findings.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 October 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 Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson 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. Thoracic spine	1/9/2003	Chap 4 P 24	P 389 T 15-04	20%	1/10th	18%
2.Lumbar spine	1/9/2003	Chap 4 P 24	P 384 T 15-03	7%	1/10th	6%
Total % WPI (the Combined Table values of all sub-totals)					23%

Ms Deborah Moore
Member
Dr David Crocker

Medical Assessor

Dr Gregory McGroder

Medical Assessor

15 April 2021