Friend v Allstaff Australia Sydney Pty Ltd
[2023] NSWPICMP 262
•14 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Friend v Allstaff Australia Sydney Pty Ltd [2023] NSWPICMP 262 |
| APPELLANT: | Kieran James Friend |
| RESPONDENT: | Allstaff Australia Sydney Pty Ltd |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 14 June 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Whether Medical Assessor (MA) provided any or adequate reasons for not assessing appellant had radiculopathy; whether MA provided any or adequate reasons for assessing appellant’s impairment relating to activities of daily living (ADLs) was 2% whole person impairment (WPI); Appeal Panel found that MA provided clear and adequate reasons for finding appellant did not have radiculopathy and his finding was correct; Appeal Panel considered that the MA’s reasons for his assessment of the appellant’s impairment relating to ADLs were sparse but the assessment was nevertheless correct; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 February 2023 the appellant, Kieran James Friend, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 19 January 2023.
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, and
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment with Allstaff Australia Pty Ltd, the respondent, around February 2019 as a labourer and picker/packer. He worked at the Woolworths Regional Distribution Centre at Warnervale. His duties required him to pick and pack orders for Woolworths. This required him to engage in repetitive bending, twisting, heavy lifting and manual handling. As a consequence of doing that work he developed pain in his lower back radiating into his buttocks and right leg and pain in his right hip that radiated to his right knee. He was unable to work after 25 August 2019.
The appellant consulted his general practitioner (GP). Hs GP referred him for an MRI scan of his lumbar spine, which was done on 22 October 2019. The radiologist who reported on that scan advised it revealed the appellant had right paracentral/right medial foraminal L5/S1 disc protrusion that impinged upon the descending right S1 nerve.
The appellant’s GP thereafter referred the appellant to orthopaedic and spinal surgeon Associate Professor Peter Papantoniou and then to neurosurgeon Dr Marc Coughlin. On 5 October 2021 Dr Coughlin performed an L5/S1 microdiscectomy.
At the request of the appellant’s solicitors, orthopaedic surgeon Dr Isaacs examined the appellant on 8 March 2021 and again on 25 July 2022. Dr Isaacs provided reports to the appellant’s solicitors with respect to those consultations on 12 March 2021 and 27 July 2022. In his report of 27 July 2022 Dr Isaacs advised the appellant’s solicitors that he assessed the appellant had 16% whole person impairment (WPI) from an injury the appellant suffered in his employment with the respondent. Dr Isaacs explained his assessment included the following components:
· 10% WPI because he found the appellant’s signs and symptoms relating to his lumbar spine correlated with DRE Lumbar Category III;
· 2% WPI in accordance with clause 4.35 of the Guidelines because he found the appellant’s disability affects the appellant’s ability with household tasks;
· 3% WPI in accordance with Table 4.2 of the Guidelines because he found the appellant had residual symptoms and radiculopathy following his surgery, and
· 1% WPI in accordance with Table 14.1 of the Guidelines for scarring.
Dr Isaacs advised those impairments combined to 16% WPI in accordance with the Combined Values Chart in AMA 5.
On 4 August 2022 the appellant’s solicitors wrote to the respondent’s insurer advising it that, relying on the report of Dr Isaacs dated 27 July 2022, the appellant claimed compensation under s 66 of the Workers Compensation Act1987 (the 1987 Act) in the amount of $41,842.50 for 16% WPI resulting from the injury to his lumbar spine.
The respondent’s solicitors thereupon arranged for the appellant to be examined by orthopaedic surgeon Dr John Bosanquet on 2 September 2022. In a report dated 13 September 2022 addressed to the respondent’s solicitors, Dr Bosanquet advised he assessed the appellant had 12% WPI from his injury. Dr Bosanquet stated that he considered the appellant’s radiculopathy had resolved following his surgery. Dr Bosanquet advised that in accordance with clause 4.27 of the Guidelines the appellant was to be assessed under DRE Lumbar Category III for which there is a baseline assessment of 10% WPI. Dr Bosanquet advised that he added 2% WPI for the restrictions the appellant had with his activities of daily living (ADLS). Dr Bosanquet advised he considered the appellant’s scarring was minimal and consistent with a scar following a standard surgical procedure.
Following receipt of that report, the respondent’s solicitors wrote to the appellant’s solicitors advising that the respondent offered to pay $28,012.50 compensation to the appellant under s 66 of the 1987 Act for 12% WPI. It provided the appellant’s solicitors with a copy of Dr Bosanquet’s report of 13 September 2022.
On 14 October 2022 the appellant commenced proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for the respondent to pay him compensation under s 66 of the 1987 Act.
The matter was referred to the Medical Assessor. As noted above, the Medical Assessor issued a MAC in response to that referral on 19 January 2023 in which he certified the respondent had 12% WPI from his injury to his lumbar spine on 25 August 2019.
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found, firstly, that the Medical Assessor assessed the appellant’s permanent impairment based on correct criteria and, secondly, that the MAC did not contain a demonstrable error. Consequently, the Appeal Panel is unable nor needs to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor detailed in the MAC the history he obtained regarding the appellant’s injury. That included that the appellant’s present symptoms from his injury consisted of pain in his back which radiates to his buttock, hamstring and calf on the right hand side. The Medical Assessor noted that the appellant had a microdiscectomy in October 2021.
The history the Medical Assessor obtained also included that the appellant enjoyed running and cycling prior to his injury and that he now struggles with those activities. The Medical Assessor also noted that the appellant has difficulty sitting in a car for long periods and has difficulty with enjoying his recreational activity of photographing because he has difficulty carrying equipment.
The Medical Assessor recorded the following findings in the MAC from examination of the appellant:
“At the commencement of the examination, Mr Friend was advised that the examination would be conducted with all movements to be within a pain free range. Although some discomfort might be experienced at end range of movement, any discomfort during the examination should be reported immediately and the movement discontinued. All movements were measured using a goniometer and confirmed by repetition, if necessary. A tape measure is used, as required. Only the active range of motion was measured in terms of allowable methodology. Passive range of motion was reserved for clinical and diagnostic reasons.
On examination, he was obviously a little uncomfortable.
Trendelenburg’s test is normal. Heel-toe stance is normal. Neurological examination of the lower limbs demonstrates symmetrical knee and ankle reflexes with down going Babinskis.
Peripheral power is intact. Straight leg raise is to 80° bilaterally without tension signs.
Quadriceps circumference today is measured at 50cm and symmetrical. Gastroc circumference is measured at 42cm and symmetrical.
There is a 3cm, well-healed incision in the midline of his lower back consistent with discectomy.”
The Medical Assessor noted that the MRI scan done on the appellant’s lumbar spine on 22 September 2021 revealed a right sided L5 disc protrusion and that the MRI scan done on 21 June 2022 revealed evidence of a previous right sided discectomy and a small recurrent disc protrusion.
The Medical Assessor provided this summary of the appellant’s injury:
“Mr Friend sustained a right L5 disc protrusion at work. He underwent discectomy but unfortunately has had recurrent symptoms presumably due to a small recurrent disc protrusion.”
As said, the Medical Assessor assessed the appellant’s permanent impairment from his injury to be 12% WPI. He provided the following explanation for his assessment:
“SIRA Guidelines, page 29, paragraph 4.32 directs that surgical decompression is to be assessed as DRE Category III. According to AMA-5, page 384, Table 15-3, DRE Lumbar Category III attracts 10% whole person impairment. According to SIRA Guidelines, page 28, paragraph 4.34, I assess a further 2% whole person impairment for restrictions of activiteis (sic) of daily living, giving a combined impairment of 12%.
The surgical incision is well healed and consistent with scarring from discectomy. The is no evidence of complication, tethering, atrophy or pigmentation.”
The Medical Assessor observed that Dr Isaacs in his report of 27 July 2022 advised he assessed the appellant’s permanent impairment to be 16% WPI. The Medical Assessor noted that Dr Isaacs had awarded 3% WPI in accordance with Table 4.2 of the Guidelines because Dr Isaacs found the appellant had residual symptoms and radiculopathy. The Medical Assessor further noted this was on account of Dr Isaacs measuring the appellant to have asymmetry of muscle bulk in the right leg. The Medical Assessor explained that he did not detect asymmetry of muscle mass in the appellant’s leg nor asymmetry of reflexes, muscle weakness, impairment of sensation or positive nerve root tension signs and consequently he did not find the appellant had any impairment for radiculopathy.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred because he did not provide adequate reasons for concluding he did not have radiculopathy. The appellant submitted that the Medical Assessor did not give any reasons “as to why his clinical findings did not support a finding of atrophy (muscle wasting)”. The appellant submitted that the Medical Assessor did not consider the evidence of Dr Isaacs and Dr Bosanquet who both found muscle wasting in his right lower limb.
The appellant submitted that the Medical Assessor did not provide reasons as to what material he relied upon to assess he had an impairment of 2% WPI relating to his activities of daily living. The appellant submitted that the Medical Assessor did not consider all relevant material with respect to his impairment of activities of daily living. The appellant submitted that it is not known what medical material the Medical Assessor examined or whether the Medical Assessor considered the appellant’s statement.
The appellant submitted that the MRI done of his lumbar spine on 21 June 2022 identified a recurrent right paracentral L5S1 disc protrusion. The appellant submitted that the Medical Assessor “did not appear to consider the diagnostic criteria found in clause 4.267 [sic 4.27]”.
The appellant submitted that the Medical Assessor did not consider all relevant material with respect to his impairment due to scarring.
The appellant submitted that the Medical Assessor did not base his assessment on the correct criteria with respect to radiculopathy or activities of daily living.
In reply, the respondent submitted that the Medical Assessor used a tape measure to measure the appellant’s quadriceps circumference and gastroc circumference and found there was no asymmetry. The respondent submitted that based on that the Medical Assessor correctly concluded that the appellant had no muscle atrophy. The respondent observed that the examinations Dr Isaacs and Dr Bosanquet conducted of the appellant were conducted many months apart and months before the Medical Assessor examined the appellant. The respondent submitted that “if the measurements taken by the doctors are viewed in chronological order then the appellant’s muscle symmetry has consistently improved over time”.
The respondent noted that Dr Isaacs had obtained a history that the appellant’s pain was aggravated by heavy household tasks and that the appellant was unable to mow the lawns and does not wash his car. The respondent further noted that Dr Isaacs recorded that the appellant does some vacuuming and that this can aggravate his pain and that the appellant had not returned to his previous pastimes of cycling or general sporting activities and that a number of exercises he used to do at the gym he is unable to perform. The respondent also noted that both Dr Isaacs and Dr Bosanquet had assessed the appellant’s impairment with respect to ADLS to be 2% WPI. The respondent submitted that based on that the Medical Assessor correctly assessed the appellant’s permanent impairment relating to activities of daily living was 2% WPI.
The respondent submitted that the “clinical signs observed by the [Medical Assessor] did not support the existence of radiculopathy as referred to in the bullet points to paragraph 4.27 of the Guidelines”.
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.
Section 325(2)(c) of the 1998 Act requires a Medical Assessor to set out within the MAC his or her reasons for the assessment he or she has made of the matters referred for assessment. The reasons must be sufficient to reveal the actual path by which the Medical Assessor arrives at his or her assessment.[2] In a circumstance where an opinion or conclusion is self-evident to medical practitioners and there is no medical contest regarding it, the reasons a Medical Assessor provides do not need to be extensive or comprehensible to a person with no medical expertise. If, however, a conclusion may be medically contestable, based on the evidence, then the MA will need to address all the relevant evidence so as to expose the path of his or her reasoning in order to explain the conclusion to which he or she came.[3]
[2] See Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA43 at [55] and Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC1320 at [73]-[79].
[3] See Vitaz at [34]; see also Campbelltown City Council V Vegan & Ors [2006] NSWCA 284 at [121]-[122].
The obligation of a Medical Assessor does not however require the Medical Assessor to explain why he or she did not form an opinion that he or she did not reach, even if that opinion is different from those of other examiners.[4] Nor does it require the Medical Assessor to sit as a decision maker choosing between competing medical opinions put forward by the parties.[5] The task of the Medical Assessor, consistent with clause 1.6 of the Guidelines, is to assess a worker’s impairment based on how the worker presents at examination taking into account the relevant medical history and all available relevant medical information.
[4] Wingfoot at [56].
[5] Kaur at [26].
The Appeal Panel considers that the Medical Assessor has provided adequate reasons for not finding the appellant had, at the time of examination, radiculopathy and also has applied the correct criteria to come to that conclusion.
The Medical Assessor noted that as a consequence of the appellant having had surgical decompression the appellant’s lumbar spine was to be assessed as correlating with DRE Category III. The Medical Assessor said in the MAC that that was in accordance with “paragraph 4.32” of the Guidelines. That is an apparent typographical error as the relevant clause within the Guidelines that require that is 4.37. In any event, neither party took issue with the Medical Assessor assessing the appellant’s permanent impairment with respect to his lumbar spine by reference to DRE Category III due to the appellant having had surgical decompression.
The Medical Assessor noted, when comparing his assessment to the assessment Dr Isaacs had earlier made of the appellant’s impairment, that Table 4.2 of the Guidelines allows an additional 3% WPI if there are residual symptoms and radiculopathy. The Medical Assessor said that he had “not assessed impairment for radiculopathy”, and, based on the Medical Assessor’s findings, the Appeal Panel confirms that the Medical Assessor was right not to do so.
Clause 4.27 of the Guidelines stipulates:
“[I]n order that a finding can be made that radiculopathy is present two or more of the following criteria must be satisfied, one of which must be a major criteria (which are highlighted in bold):
• loss or asymmetry of reflexes
• muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
• reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
• positive nerve root tension (AMA5 Box 15-1, p 382)
• muscle wasting – atrophy (AMA5 Box 15-1, p 382)
• findings on an imaging study consistent with the clinical signs (AMA5, p 382).”
The Medical Assessor specifically stated that his neurological examination of the appellant’s lower limbs revealed symmetrical knee and ankle reflexes with down going Babinskis. That finding reveals that the Medical Assessor did not find the appellant had any loss of asymmetry reflexes. He did not meet the first major criterion.
The Medical Assessor found from his examination that the appellant’s peripheral power was intact and also that the appellant’s quadriceps circumference and gastroc circumference on both the right and left legs measured equally. That indicates that the Medical Assessor did not find that the appellant had muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution. That is, the appellant did not meet the second major criterion.
The Medical Assessor said, when comparing his assessment with the assessment Dr Isaacs made of the appellant’s impairment, that he found the appellant had no impairment of sensation. That reveals to the Appeal Panel that the Medical Assessor found that the appellant did not have reproducible impairment sensation that is anatomically localised to an appropriate spinal nerve root distribution. That is, the appellant did not meet the third major criterion.
Consequently, the Medical Assessor’s examination of the appellant did not reveal one of the major criteria and, given that, the Medical Assessor could not make a finding that the appellant had radiculopathy at the time of examination.
The Appeal Panel also observes that the Medical Assessor’s findings from his examination revealed that the appellant did not have positive nerve root tension because the Medical Assessor said that the appellant was able to achieve straight leg raise to 80° bilaterally without tension signs.
The Appeal Panel also notes that the Medical Assessor also found that the appellant did not have muscle “wasting-atrophy” and that is because the Medical Assessor found from his examination that the appellant’s circumferences in both lower limbs of the quadriceps and gastroc were equal. The Medical Assessor consequently gave clear reasons for his finding the appellant did not have “muscle wasting-atrophy”.
With respect to the Medical Assessor’s assessment relating to the effect the appellant’s injury to his lumbar spine had on his ADLS, the Appeal Panel considers that the Medical Assessor’s reasons were sparse and seemed to be limited to the appellant’s injury affecting the appellant’s ability to drive a car and to participate in some of his prior recreational activities and having difficulty in participating in another, namely photography.
The Appeal Panel notes that section 15.4 of AMA 5 in combination with clause 4.33 of the Guidelines allow for an amount of up to 3% WPI to be added to the baseline WPI rating provided for each of the DRE Lumbar Categories for the effect a worker’s injury has on the worker’s ADLS. Clause 4.33 of the Guidelines instructs that the assessment of the effect of a worker’s injury on a worker’s activities of daily living is not to be solely based on the worker’s self report but is to be based on all clinical findings and other reports. In the succeeding two clauses of the Guidelines there follows a diagram and a key to the diagram, the upshot of which is that if a Medical Assessor considers there is a difference in a worker’s ability to perform ADLS as a consequence of an impairment of a worker’s spine then the Medical Assessor should add 1% to the bottom range of the relevant DRE category if that impairment affects a worker’s ability to perform outdoor or recreational activities, 2% if the injury impairs the worker’s ability to attend to his or her domestic requirements and 3% if the injury affects the worker’s ability to attend to his or her personal needs. The Appeal Panel emphasises that this is only a guide. Ultimately, a Medical Assessor must assess this issue based on by his or her clinical judgment having regard to all the relevant material.
In the Appeal Panel’s view, whilst the Medical Assessor provided sparse reasons for his assessment that the appellant’s impairment of his ADLS was 2% WPI, the assessment was nevertheless correct. The Appeal Panel notes that the appellant said in a statement he signed on 14 October 2022 that he has difficulty doing heavier domestic activities such as carrying groceries and putting bins out and hanging laundry and has difficulty with vacuuming and mopping and making beds. He said that he no longer mows or washes his car. He also said that he no longer participates in pre-injury recreational leisure activities, which the Medical Assessor noted. The appellant also indicated in his statement that he has some difficulty putting on his socks and cutting his toe nails.
The Appeal Panel also notes that on 27 July 2022 Dr Isaacs reported that the appellant’s pain was aggravated by heavy household tasks and by vacuuming. Dr Isaacs also noted that the appellant had not returned to some of his pre-injury recreational activities and that he was impeded in performing some exercises at a gymnasium.
In all, this indicates to the Appeal Panel that the appellant does experience some difficulty as a consequence of his injury with some aspects of his home care and recreational activities but has very minimal impairment with respect to his self care. Based on that, the Appeal Panel considers that a rating of 2% WPI for the effect of the appellant’s injury on his ADLS is correct.
The Appeal Panel also considers that the Medical Assessor provided adequate reasons for assessing the appellant’s permanent impairment with respect to scarring from the microdisectomy as 0% WPI. The Medical Assessor’s reasons were that the appellant’s scar was well healed, 3cm long and, based on examination, there was no evidence of complications, tethering, atrophy or pigmentation. The Appeal Panel also notes that the scar is at an anatomic location that is not visible with usual clothing. Further, the appellant’s scar has no effect on his ADLS and does not require treatment. In the Appeal Panel’s view those features best fit the criteria for 0% WPI in Table 4.14.1.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 January 2023 should be confirmed.
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