Gifford v Aldus Engineering Pty Ltd
[2022] NSWPICMP 421
•25 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gifford v Aldus Engineering Pty Ltd [2022] NSWPICMP 421 |
| APPELLANT: | Darren James Gifford |
| RESPONDENT: | Aldus Engineering Pty Ltd |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr Gregory McGroder |
| MEDICAL ASSESSOR: | Dr James Bodel |
| DATE OF DECISION: | 25 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appellant submitted the Medical Assessor’s (MA) assessment of his whole person impairment was “inappropriately harsh”; that the MA did not take proper account of the history of his injury and did not base his assessment on his findings from examination; Held – Appeal Panel rejected all submissions of the appellant and found the MA had made the assessment based on the correct criteria and that the Medical Assessment Certificate (MAC) did not contain a demonstrable error; MAC upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 July 2022 Darren James Gifford, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Drew Dixon, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 July 2022.
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 employment with Aldus Engineering Pty Ltd, the respondent, as a storeman on 24 January 2011. He suffered an injury to his lumbar spine as a consequence of his employment. The parties agree that this injury is deemed to have occurred on 7 March 2019.
The appellant’s solicitors arranged for the appellant to be examined by orthopaedic surgeon Dr J Brian Stephenson to assess his permanent impairment resulting from that injury. Dr Stephenson examined the appellant on 2 March 2020 and in a report of 9 March 2020 advised the appellant’s solicitors that he had assessed the appellant had 15% whole person impairment (WPI) from his injury. Dr Stephenson advised that the appellant exhibited “sufficient signs of radiculopathy in keeping with the WorkCover Guidelines at the right lower extremity”. Dr Stephenson advised that “in view of the presence of radiculopathy” the appellant met the criteria for DRE Lumbar Category III in Table 15-3 of AMA 5. Dr Stephenson also advised that the appellant was entitled to 3% WPI in accordance with the modifier provided under Table 4.2 of the Guidelines. That allows the addition of that level of WPI where there has been spinal surgery with residual symptoms and radiculopathy.
Dr Stephenson in a subsequent report dated 1 March 2021 revised his assessment and advised that the “correct assessment is in fact a 12% WPI”. That revision was on the basis that the appellant had not undergone surgery for his lumbar spine.
On 12 August 2021 the appellant’s solicitors wrote to the respondent and also to its insurer enclosing with their letters a permanent impairment claim form that the appellant signed on 12 August 2021 seeking permanent impairment compensation from the respondent. The appellant’s solicitors also enclosed with their letters copies of Dr Stephenson’s reports of 9 March 2020 and 1 March 2021.
The respondent’s insurer then arranged for the appellant to be examined by orthopaedic surgeon Dr Neville Rowden. That occurred on 15 October 2021. In a report of 26 October 2021 Dr Rowden advised the insurer that he had assessed the appellant had 7% WPI for lumbar spine impairment. He considered that 10% of the appellant’s lumbar spine impairment was due to an earlier injury the appellant suffered in 2012 so consequently he advised the insurer that as a result of the appellant’s injury of 7 March 2019, he assessed the appellant had 6% WPI.
On 8 December 2021 the insurer wrote to the appellant notifying him under s 78 of the 1998 Act that he was not eligible for permanent impairment lump sum compensation. The insurer said this was because the appellant’s injury had not resulted in more than 10% permanent impairment as required by s 66(1) of the Workers Compensation Act 1987 (the 1987 Act) for the appellant to be entitled to compensation for permanent impairment from his injury. The insurer advised him that it relied on the report of Dr Rowden.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking a determination of his claim for compensation for permanent impairment from his injury. A delegate of the President referred the medical dispute between the parties to Medical Assessor Dixon, with the dispute being described in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 7 March 2019
Body part/s referred: Lumbar spine
Method of assessment: Whole person impairment”
The MAC
Medical Assessor Dixon examined the appellant on 29 June 2022 and, as mentioned earlier, issued the MAC on 1 July 2022.
Medical Assessor Dixon recorded in the MAC that the history he obtained regarding how the appellant’s injury occurred was that on 7 March 2019 the appellant was cutting a wooden roller door and was placing pieces of the cut wood into an industrial bin. That task resulted in the appellant suffering a low back strain and severe low back pain. Medical Assessor Dixon noted that the appellant completed his work for that day but has not returned to work since then. Medical Assessor Dixon noted that the appellant had physiotherapy and hydrotherapy, had several cortisone injections, and has trialled Lyrica. Medical Assessor Dixon noted that the appellant also had radiofrequency blocks at a pain clinic and was recommended spinal surgery which the appellant declined.
Medical Assessor Dixon noted that the appellant had a past history of low back strain that occurred in 2012 when he was unloading heavy pallets. Medical Assessor Dixon noted that this resulted in the appellant being off work for a month but did not inhibit his ability thereafter to work until the injury on 7 March 2019.
Medical Assessor Dixon noted that the appellant reported that he presently suffers pain in his lower back, more in the right para-lumbar area, with lumbar stiffness and transient right buttock sciatica. Medical Assessor Dixon noted that the appellant reported that repetitive bending and stooping aggravates his back condition as well as heavy lifting and carrying. Medical Assessor Dixon noted that the appellant had difficulty performing heavy household chores and yard work and experienced difficulty cutting his toe nails and putting on his shoes and socks. Medical Assessor Dixon noted that the appellant is unable to play sport.
Medical Assessor Dixon reviewed reports on radiological investigations the appellant has undergone. These included investigations done before the appellant’s injury on 7 March 2019, being firstly an MRI of the appellant’s lumbar spine done on 7 April 2014 that showed shallow disc bulges from L3/4 to L5/S1 with facet joint arthropathy most marked at the L5/S1 on the right. Secondly, a CT of the appellant’s lumbar spine done on 18 May 2015 showed a broad base disc herniation at L4/5 and L5/S1 resulting in flattening of the dural theca with mild to moderate bilateral neural exit foraminal narrowing secondary to disc encroachment at L4/5 and L5/S1 with probable impingement of the L5 nerve root bilaterally with degenerative disc disease and facet joint OA of the lower limb lumbar spine and both sacroiliac joints.
The investigations Medical Assessor Dixon reviewed that were done subsequent to the appellant’s injury included an MRI of the appellant’s lumbar spine done on 5 April 2017 that revealed shallow disc bulges from L3/4 to L5/S1 without definite neural impingement and multi-level facet joint OA most marked at L4/5 particularly on the right with some bony stress reaction at the right L5 pedicle. The investigations also included an MRI of the lumbar spine done on 31 July 2019 that revealed advanced bilateral facet joint arthropathy at L5/S1 with minimal bone narrow oedema within the right L5 pedicle and facet arthropathy at L2/3, L3/4 and L4/5 to a minor degree and advanced bilateral facet joint arthropathy at L5/S1 and shallow disc bulge at L3/4, L4/5 and L5/S1 without neural impingement in the lower lumbar levels.
Medical Assessor Dixon recorded the following findings on his examination of the appellant:
“There was stiffness of his lumbar segment with flexion decreased by one third, with slow and jerky recovery with erector spinae muscle spasm with pain on back extension which was decreased by one half. Lateral flexion to the left was decreased by one third, and that to the right by one quarter. He had tenderness at the L5 level in themed line and the adjacent right lumbo-sacral facet joint region. Stress of his right sacroiliac joint was positive.
Straight leg raise on the right was 60 degrees and associated with low back pain and he had a positive sciatic nerve root stretch test, and that on the left was 70 degrees. There was no gross neurological deficit of either lower extremity. His reflexes were present and there were no sensory losses and his Babinski signs were negative. His power was grade five out of five.
There was 1cm of wasting of his right leg below the knee. He reports no sciatica today on straight leg raise.
normal gait was slow and toe walking and heel walking was associated with significant low back pain and his squat test was restricted by one half due to low back pain.”
The Medical Assessor summarised the appellant’s injury as a back strain injury with low back pain and weakness and transient right buttock sciatica. The Medical Assessor noted that clinically the appellant had residual right lumber sacral facet arthralgia with lumbar stiffness and with dysmetria and residual erector spinae muscle spasm. The Medical Assessor noted that there was no gross neurological deficit of either of the appellant’s lower limb but the appellant had one centimetre of wasting of his right leg below the knee. The Medical Assessor noted that the appellant had a positive stress test for right sacroiliac joint strain. The Medical Assessor’s summary also included that the appellant suffered a previous back strain in 2012 which had not completely resolved but did not prevent him from being able to return to work with intermittent time off.
The Medical Assessor assessed the appellant’s WPI due to his lumbar spine to be a total of 8%. The Medical Assessor said that the impairment of the appellant for his lumbar spine was to be assessed by reference to the criteria of DRE Lumbar Category II with impaction on activities of daily living, including foot care. The Medical Assessor said that in making the assessment he had taken account of the history he obtained of the appellant’s injury, the history of the appellant’s prior injury in 2012 and the investigation findings that showed facet arthritis at the lumbar sacral level and the lower lumbar disc bulges without neural compression. The Medical Assessor also said that he took into account his examination findings that showed mild restriction of straight leg raise on the right with a positive sciatic nerve root stress test without gross neurological deficit in either lower limb. The Medical Assessor also said that he took into account the impaction of the appellant’s back condition on his activities of daily living.
The Medical Assessor also said that he considered the appellant had pre-existing L5/S1 facet arthritis which contributed to the appellant’s WPI. The Medical Assessor noted that there was to be a deduction for that and because it would be difficult or costly to determine the extent of the deduction he assumed, in accordance with s 323(2), that the deductible proportion was to be one-tenth.
Medical Assessor Dixon noted the assessment that Dr Stephenson had made of the appellant’s WPI. Medical Assessor Dixon said that there had been an improvement in the appellant’s lumbar condition since then and that the appellant’s radiculopathy had resolved.
The Medical Assessor noted that Dr Rowden had assessed the appellant had 7% WPI for his lumbar spine the Medical Assessor noted that he concurred with that assessment.
The Medical Assessor consequently certified in the MAC that he had assessed the appellant to have 7% WPI from the injury to his lumbar spine on 7 March 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 WorkCover Medical Assessment Guidelines 2006.
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 came to the view that the grounds for appeal on which the appellant relied were not established and there was consequently no need to examine the appellant.
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.
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’s assessment was “inappropriately harsh” and was not based on the Medical Assessor’s findings from physical examination, the medical evidence or a “true interpretation of the MRI and CT scan reports”.
The appellant submitted that the Medical Assessor failed to take a proper account of the appellant’s injury history and had formed an opinion based on an incorrect fact that the appellant suffers from relevant previous injuries/pre-existing condition in the form of L5/S1 facet arthritis. The appellant submitted that the Medical Assessor “did not consider criteria for location, ADL, treatment or adherence and did not apply correct criteria when assessing the appellant’s permanent impairment”. The appellant submitted that the Medical Assessor did not sufficiently explain how he concluded that the appellant’s back injury best fitted to the criteria of 7% “but only chose at his discretion to adopt the report opinion of Dr Rowden”.
The appellant submitted that the Medical Assessor did not give due consideration to Dr Stephenson’s opinion. The appellant submitted that the Medical Assessor erred by concluding that there had been an improvement in his lumbar spine condition since Dr Stephenson assessed his impairment. The appellant submitted that the Medical Assessor “overlooked the effects of the injury” and the appellant referred to the decision of Federal Broom v Semlitch (1964) ALR 1031 (Semlitch).
In reply, the respondent submits that for the appellant to be assessed as meeting the criteria of DRE Lumbar Category III the appellant would have needed to have demonstrated significant signs of radiculopathy or a history of a herniated disc at the level in question. The respondent submitted that the radiological investigations did not disclose anything significant that would account for a finding of radiculopathy or herniated disc. The respondent submitted that the Medical Assessor therefore correctly assessed the appellant as complying with the criteria for DRE Lumbar Category II. The respondent submitted that it was open for the Medical Assessor to make a finding that the appellant had a pre-existing condition or abnormality that warranted a deduction.
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.
The Medical Assessor, in the Appeal Panel’s view, correctly correlated the appellant’s signs and symptoms with the criteria for DRE Lumbar Category II, which allows for an assessment of impairment within the range of 5-8% WPI, depending on the effects a worker’s injury has on the worker’s activities of daily living.
The criteria for DRE Lumbar Category III, which allow for a rating between 10-13% WPI, were not met in this case. The radiological investigations did not reveal any fractures. The appellant has not had surgery. The appellant at the time of the Medical Assessor’s examination did not exhibit signs of radiculopathy and the radiological investigations did not reveal a herniated disc that could be associated with any radiculopathy.
In order for the Medical Assessor to have made a finding of radiculopathy the criteria as set out in [4.27] of the Guidelines would needed to have been met. The Medical Assessor’s finding from examination did not reveal that the appellant exhibited any of the major criteria listed within [4.27]. The Medical Assessor’s findings from his examination revealed a positive nerve root tension and also muscle wasting, which are minor criteria within [4.27]. That however is not sufficient for a finding of radiculopathy to be made.
The Medical Assessor’s findings included muscle spasm and asymmetric loss of range of motion. That meets the criteria for an assessment within DRE Lumbar Category II. The Medical Assessor clearly, in the Appeal Panel’s view, set out what his findings were from his examination and, by doing this, has sufficiently explained why he assessed the appellant’s impairment as correlating with DRE Lumbar Category II. The Medical Assessor has also sufficiently explained why 3% WPI was to be added to the base level for DRE Lumbar Category II for the effect the appellant’s injury has on his activities of daily living and that is because his injury affects his foot care and his ability to undertake household chores and gardening.
The Medical Assessor has also correctly applied s 323(1) of the 1998 Act. He found that the appellant did have a prior injury affecting his lumbar spine and had a pre-existing condition in his lumbar spine, being L5/S1 facet arthritis. Moreover, the radiological investigations done preceding the appellant’s injury of 7 March 2019 revealed the presence of that condition. Noting the symptoms the appellant exhibited at the time of examination and also the symptoms the appellant presently suffers, the Medical Assessor was right to conclude that pre-existing condition contributes to the appellant’s current impairment in terms of making a difference to the outcome. That is to say, the appellant’s pre-existing condition has resulted in his impairment being worse because without his suffering that pre-existing condition his permanent impairment would not be as great as it presently is.
The Appeal Panel considers that the Medical Assessor was correct to conclude that it would be too difficult or costly to determine the extent to which the pre-existing condition contributes to the appellant’s current impairment and hence the Medical Assessor was correct to assume the deductible proportion was 10% in accordance with s 323(2).
The Appeal Panel considers that Semlitch has no relevance to the assessment of the appellant’s permanent impairment. That case relates to what may be considered an injury within the meaning of s 4(b)(ii) of the 1987 Act, and not to how to assess permanent impairment from such an injury.
In short, the Appeal Panel considers that the Medical Assessor applied the correct criteria to assess the appellant’s permanent impairment and did so correctly. The Appeal Panel discerns no error in the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 July 2022 should be confirmed.
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