Gashi v Lend Lease Structures Pty Limited
[2021] NSWPICMP 164
•7 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gashi v Lend Lease Structures Pty Limited [2021] NSWPICMP 164 |
| APPELLANT: | Adam Gashi |
| RESPONDENT: | Lend Lease Structures Pty Limited |
| APPEAL PANEL: | Brett Batchelor Dr Tommasino Mastroianni Dr John Ashwell |
| DATE OF DECISION: | 7 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by worker on the grounds that the Medical Assessor (MA) had incorrectly assessed him in that he found that radiculopathy was not present in accordance with the criteria in paragraph 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and that the modifiers in Table 4.2 of the Guidelines, adding 3% WPI in respect of spinal surgery with residual symptoms and radiculopathy, were not therefore applied; the appellant also alleged that he should have been assessed at 1% WPI in respect of scarring following back surgery pursuant to the table for the evaluation of minor skin impairment (TEMSKI -Table 14.1 of the Guidelines); Held – finding that the MA was correct in his assessment that on his examination of the appellant, neither a major nor a minor criterion should be found such as to enable a conclusion that radiculopathy was present; therefore Table 4.2 modifiers could not apply; finding that the uncomplicated scar for a standard surgical procedure was correctly assessed at 0% WPI in accordance with paragraph 14.6 of the Guidelines and TEMSKI; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 June 2021 Adam Gashi (the appellant/Mr Gashi) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Davies, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 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 (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
The appellant commenced work for Lend Lease Structures Pty Limited (the respondent) as a formwork carpenter in November 2013. He was employed on a multi storey building under construction at Barangaroo, Sydney, and for about six months prior to his injury was engaged in lifting and installing screens and needles. Needles hold scaffolding in place, are about chest height in length and weigh about 60-70 kg. On 10 October 2015 Mr Gashi suffered an injury to his lumbar spine while lifting needles. He experienced pain in his back and a burning pain in his feet.
The appellant sought medical treatment and was referred for a CT scan on his lumbar spine. He received physiotherapy treatment and was obliged to cease work after being on suitable duties for about a week.
Mr Gashi was treated by Dr Al-Khawaja who performed an epidural steroid injection which did not assist. A recommendation by Dr Al-Khawaja for surgery in the form of an anterior lumbar fusion was not accepted. The appellant subsequently underwent an L4 laminectomy and rhizolysis at the hands of Dr Kam on 17 December 2018. Pre-operatively, Mr Gashi reported pain in the lower back. He was getting a lot of pain down the left leg and complained of electric shock sensations down the left leg and constant numbness in the left big toe. Post-operatively, back pain and left leg pain continued and the appellant developed pain down the right leg also. He was referred for hydrotherapy and physiotherapy but reported no improvement in his condition.
The appellant was thereafter referred to Dr Salmon, pain specialist, who prescribed medication and physical and psychological therapy. The trial of a spinal cord stimulator recommended by Dr Salmon was not taken up. Mr Gashi currently reports pain in the lower back and radiating down both legs. This is sometimes worse in the left leg and on other occasions vice-versa. He also describes both a burning pain and electric shock sensations, and numbness in the big toe.
The appellant was independently medically assessed by Dr S M Habib, surgeon, on 4 July 2019 who assessed him as having sustained 17% whole person impairment (WPI), 16% WPI in respect of injury to the lumbar spine and 1% in respect of surgical scarring.
The appellant was also independently medically assessed by Dr Peter Bentivoglio, neurosurgeon, on 31 October 2019 who found that Mr Gashi had sustained 12% WPI as a result of injury to the lumbar spine and 0% WPI in respect of surgical scarring.
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 because, neither the appellant nor the respondent requested re-examination by a Medical Assessor who is a member of the Appeal Panel, and the Panel considers that there is sufficient information in the appeal papers with which to make its decision.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor 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.
The appellant
In summary, the appellant notes that the appeal is limited to two grounds, namely the incorrect application of Table 4.2 of the Guidelines, and the incorrect assessment of scarring in accordance with Table 4.1 of the Guidelines, Table for the evaluation of minor skin impairment (TEMSKI).
The appellant submits that the Medical Assessor, Dr Davies, has erred in not applying the 3% modifier under Table 4.2 on p 29 of the Guidelines. He submits that this Table indicates additional ratings which should be combined with the rating determined using the diagnosis-related estimate (DRE) method where surgery for an intervertebral disc prolapse, spinal stenosis or spinal fusion has been performed. It requires an additional 3% WPI to be added following “spinal surgery with residual symptoms and radiculopathy”, and refers to 4.23 [sic, 4.27] of the Guidelines, which contains the statement “In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):” The appellant then lists the criteria found in [4.27], and submits that on the basis of the examination carried out by Dr Davies, he should have found one major criteria and one minor criteria.
The appellant submits that this is evident in the MAC at [5] where Dr Davies states, “Sensory examination was difficult to interpret but there may be some impaired sensation in the S1 dermatome in each lower limb.”[1] This should have led Dr Davies to the conclusion that one of the major criteria in [4.27] of the Guidelines had been satisfied
[1] Appeal papers p 21.
In addition, the appellant notes the statement by Dr Davies in the MAC that:
“Straight leg raising was very limited and I could barely get either leg off the bed before he reported increased back pain. I could not improve on those ranges of movement whilst he was sitting on the side of the couch”[2],
and submits that this would tend to indicate clinical signs of positive nerve root tension, which is one of the criteria required for radiculopathy.
[2] Appeal papers p 21.
The appellant notes that under the heading “Summary” at [7] of the MAC[3] Dr Davies states of the appellant that “He now has chronic back and leg pain, with nociceptive and neuropathic components.” In respect of consistency of presentation, Dr Davies states that “Mr Gashi’s presentation was generally consistent with the history and clinical findings but he is fear avoidant, was quite distressed at times during the consultation and reported amplification of his symptoms when he was distressed.”
[3] Appeal papers p 22.
The appellant submits that he has satisfied two criteria (one major and one minor) to establish radiculopathy pursuant to [4.27] of the Guidelines, and that therefore 3% should have been added to his overall WPI assessment in accordance with Table 4.2.
The appellant notes that Dr Davies has assessed 0% WPI in respect of scarring, following his statement in the MAC that “There is a 3cm vertical surgical scar over the lower lumbar spine. It is a normal surgical scar, showing only minor colour contrast with surrounding skin.”[4] The appellant notes that the Guidelines at [14.8] contain the statement that “The TEMSKI is to be used in accordance with the principle of ‘best fit’”, and that if the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories. The appellant submits that Dr Davies has failed to provide any such reasoning in the MAC.
[4] Appeal papers p 21.
The appellant submits that, applying the criteria in the third column of Table 14.1 of the Guides, the best fit or best description of the appellant’s scarring should result in an assessment of 1% WPI. Whether or not the surgical scar is “normal” and “showing only minor colour contrast with surrounding skin” is the incorrect criteria and/or a demonstrable error for the evaluation required under TEMSKI.
The appellant submits that Dr Davies should have assessed 17% WPI on the basis that he falls within DRE III at 10% WPI, activities of daily living (ADL) of 3% WPI, surgical procedure with residual symptoms of radiculopathy of 3% WPI and scarring in accordance with TEMSKI of 1% WPI.
The respondent
In reply, the respondent submits that Dr Davies did in fact turn his mind to whether the appellant continues to suffer radiculopathy, stating that he does not satisfy the SIRA (State Insurance Regulation Authority) criteria for persisting radiculopathy. This is consistent with the opinion of Dr Bentivoglio on whose opinion the respondent initially relied in making its offer to resolve Mr Gashi’s claim for lump sum compensation.
The respondent submits that Dr Davies also acknowledges that Dr Habib, on whose assessment the appellant initially relied, found persisting radiculopathy, and that this did not appear to be supported by his objective findings.
The respondent therefore submits that, in accordance with the finding of Harrison ASJ in Parker v Select Civil Pty Ltd[5], the Medical Appeal Panel is not to substitute its own assessment simply because it holds a different opinion in terms of the question as to whether the appellant continues to exhibit radiculopathy.
[5] [2018] NSWSC 140.
The respondent submits that Dr Davies specifically states that the sensory findings were difficult to interpret, and that there was some impaired sensation. This does not consist of ‘reproducible impairment of sensation’.
The respondent submits that it cannot be said that the failure following this assessment to apply a finding of radiculopathy would have consisted of a demonstrable error, or that the assessment was conducted on the basis of incorrect criteria. The respondent therefore submits that the Appeal Panel does not have the jurisdiction to substitute its assessment.
The respondent submits that the fact that Dr Davies found that the appellant’s straight leg raising to be very limited does not necessarily lead to the finding of positive nerve root tension. According to the respondent, this does not appear to be any finding that the Medical Assessor came to during his assessment, noting that he recorded that the appellant was fear avoidant, which would negate the validity of such a test. In any case, it would not be sufficient to warrant a finding of radiculopathy on its own.
The respondent submits that the finding of Dr Davies that Mr Gashi was not suffering from radiculopathy was one that was open to him.
In respect of the appellant’s scarring, the respondent submits that Dr Davies noted the scar to be very small and pale, and not easily seen. The respondent notes that the assessment of the scar by Dr Davies would be able to be described by a number of the criteria on the 0% category, including that there is a good colour match with surrounding skin, no effects on any ADL, and that Mr Gashi is barely conscious of the scar. The location of the scar is not visible with usual clothing.
The respondent therefore submits that the assessment of 0% WPI would have been open to Dr Davies on the basis of his examination. As such, the respondent submits that it cannot be said that the assessment resulted in a demonstrable error, or that it was made on the basis of incorrect criteria.
The respondent submits that the MAC of Dr Davies ought to be confirmed.
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. An Appeal Panel is limited to determining error as alleged by the appellant but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. Relevant case law includes Siddik v Workcover Authority of NSW[6] and NSW Police Force v Registrarof the Workers Compensation Commission of New South Wales[7].
[6] [2008] NSWCA 116.
[7] [2013] NSWCA 1792.
For an appeal to be successful pursuant to s 327(3)(d) of the 1998 Act, that is the MAC contains a demonstrable error, there must be an error of fact or law which is readily apparent on the face of the MAC (NSW Police Force v Fleming[8]; Merza v Registrar of the Workers Compensation Commission[9]).
[8] [2010] NSWSC 216.
[9] [2006] NSWSC 939.
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.
Radiculopathy
The Guides at [4.27] set out the criteria that need to be found in order to conclude that radiculopathy is present. The paragraph is as follows:
“4.27 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria 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 appellant submits that although Dr Davies found that sensory examination was difficult to interpret, he also says that there may be some impaired sensation in the S1 dermatome in each lower limb. The Appeal Panel is of the view that such a finding on examination by Dr Davies does not constitute the major criteria of reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution. Dr Davies raises the possibility only of impaired sensation in each lower limb. In any event the Panel notes that the appellant’s surgery on 17 December 2018 was an L4 laminectomy and rhizolysis for the bilateral L4/5 lateral recess stenosis. Dr Davies comments on the findings of Dr Habib in his report dated 8 [sic, 5] July 2018[10], and comments that the objective findings of Dr Habib recorded in his report do not support his opinion of persisting radiculopathy. The Panel agrees with Dr Davies’ comments on Dr Habib’s report. The Panel also notes the finding of Dr Bentivoglio in his report dated 6 November 2019 that the appellant does not have persistent radiculopathy[11], a report on which Dr Davies also makes comment.
[10] See [10.c.2] at appeal papers p 23.
[11] Appeal papers p 139.
The Panel does not accept the appellant’s submission that the limited straight leg raising found by Dr Davies, when he said that he could barely get either leg off the bed before Mr Gashi reported increased back pain, is indicative of clinical signs of positive nerve root tension. Restricted straight leg raising is not a criterion in assessing radiculopathy.
The Panel therefore finds that there are no criteria that would enable a conclusion that radiculopathy is present in accordance with [4.27] of the Guides. The Panel also notes that even if, contrary to its finding in [40] above, the impaired sensation in the S1 dermatome did constitute reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution, that would constitute one only of the required two criteria necessary for a conclusion that radiculopathy is present.
Dr Davies was therefore correct in finding that no further impairment could be given under Table 4.2 of the Guidelines. That left the assessment at 13% WPI in relation to injury to the lumbar spine (10% WPI DRE category III plus 3% WPI for ADL) with which the appellant does not take issue.
Scarring
The Panel is of the view that the finding of Dr Davies that the appellant has a normal surgical scar, only 3 cm long which shows minimal colour contrast is quite clearly in accordance with [14.6] of the Guidelines and warrants a 0% WPI assessment only. It is an uncomplicated scar for a standard surgical procedure. There is no record of complaint by the appellant in respect of the surgery scar recorded in the MAC. That scar is on the lower back, covered by clothing.
In his report dated 5 July 2019 Dr Habib does not record any complaint of the appellant in respect of the scarring on his back following the surgery on 17 December 2018. He simply notes “A well healed back scar…”[12]
[12] Appeal papers p 55.
Dr Bentivoglio in his report dated 6 November 2019 records “…a trivial scar on his back and I do not add anything for that.”[13]
[13] Appeal papers p 139.
The appellant submits that Dr Davies has not provided detailed reasons in accordance with [14.8] of the Guidelines, that is the use of TEMSKI in accordance with the principles of ‘best fit’. The appellant submits that, in accordance with such principle, the best fit was an assessment of 1% WPI. It is implicit in such submissions that the description of the scar provided by Dr Davies provides insufficient reasons for his assessment.
In order to achieve an assessment of 1% WPI for scarring, the following conditions need to be met:
(a) Claimant is conscious of the scar(s) or skin condition.
(b) Some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes.
(c) Claimant is able to locate the scar(s) or skin condition.
(d) Minimal trophic changes.
(e) Any staple or suture marks are visible.
Apart from the minimal colour contrast recorded by Dr Davies, there is no evidence of any complaint by the appellant of the other criteria required for an assessment of 1% WPI. The Panel is therefore of the view that, having regard to [14.6] of the Guidelines and the descriptions of the scarring provided by him, Dr Habib and Dr Bentivoglio, a more detailed description was not necessary.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 May 2021 should be confirmed.
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