Goonan v State of New South Wales (NSW Police Force)
[2022] NSWPICMP 389
•7 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Goonan v State of New South Wales (NSW Police Force) [2022] NSWPICMP 389 |
| APPELLANT: | Bernard Goonan |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 7 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Medical Assessor (MA) assessed 14% whole person impairment (WPI) for the lumbar spine including 1% for activities of daily living (ADL); appellant submitted MA failed to provide adequate reasons for his assessment of ADL; Panel held that MA erred in not provided adequate reasons for assessment of 1% for ADL and failed to address all the areas of interference with ADL as described in paragraph 4.35 of the WorkCover Medical Assessment Guidelines 2006; Held – Panel assessed 2% for ADL; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 July 2022 Bernard Goonan (Mr Goonan) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on
24 June 2022.The respondent to the appeal is the state of New South Wales (NSW Police Force) (the respondent).
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 pursuant to
s 327(3)(c) of the 1998 Act, 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.
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 reissued on 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Goonan sustained an injury to his lumbar spine on 8 August 2015.
The matter was referred to the MA, Rob Kuru, on 19 April 2022 for assessment of whole person impairment (WPI) of the lumbar spine and scarring (TEMSKI) (date of injury
18 August 2015).The MA examined Mr Goonan on 10 June 2022 and assessed 14% WPI of the lumbar spine in respect of the injury on 18 August 2015.
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.
Mr Goonan did not request that he be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Goonan to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that 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.
Mr Goonan’s submissions include the following:
(a) The MA failed to provide any explanation as to which activities of daily living (ADL) were applied.
(b) On page 2, under the heading “Social activities/ADL” the MA stated: “Mr Goonan previously enjoyed mixed martial arts and wrestling which he is unable to do. He is restricted in weight training. He is unable to jog”.
(c) At 10(b) on page 4 of the MAC the MA set out his calculation of WPI: “Mr Goonan has undergone a decompressive procedure for his disc protrusion. According to SIRA Guidelines page 29, paragraph 4.37 he is assessed as DRE Lumbar Category III (AMA-5, page 384, Table 15-3), 10% whole person impairment. According to SIRA, page 28, paragraph 4.34 I assess a further 1% for restriction of activiteis [sic] of daily living. According to SIRA, page 29, Table I assess a further 3% for spinal surgery with residual symptoms and radiculopathy on the basis that Mr Goonan continues to have anatomical weakness persisting post-surgery which correlates with findings on imaging. 11% combined with 3% gives 14% whole person impairment”.
(d) The only other mention of ADL is on page 4, where the MA commented on the other medical opinions and stated: “In respect to the report by Dr Bodel dated 22/11/2021, I agree with the assessment as Lumbar DRE Category III. I believe a 1% loading for activities of daily living is appropriate rather than 2%. I agree with assessment of 3% on the basis of persistent radiculopathy, given the objective findings of weakness that correlate with the pre-operative MRI findings. I disagree with the assessment of 1% impairment for scarring (TEMSKI) for the reasons given above. With respect to the report by Dr Powell dated 10/03/2022, I am in agreement with the assessment”.
(e) The MA failed to detail which of the ADL had been considered and the reasons why they had been included and therefore what other activities of daily living had not been included. He failed to provide any or any adequate reasoning for his assessment of ADL. The failure to provide any or any adequate reasons constituted an error.
(f) Mr Goonan detailed the impact of the subject injury on the ADL in his statement dated 22 March 2022 (page 6 of the ARD supporting documents).
(g) The MA failed to properly engage with cl 4.34. Whilst the MA assessed 1% WPI for ADL, he failed to:
(i)Undertake any or any adequate history in relation to activities of daily living, and
(ii)Refer to Mr Goonan’s statement which identified that he has significant issues with personal care (putting on his shoes, driving), home care (picking up his children, getting groceries out of the car, vacuuming, feeding the chickens, driving) and yard/garden/sport/recreation (gardening and landscape maintenance).
(h) Clause 4.35 states that base impairment should be increased for ADL by:
·3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected, and
·2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances.
(i) The Guidelines should be given a natural, ordinary and literal meaning. As such, the test to determine whether Mr Goonan’s impairment is to be increased by 2% or 3% for ADL was not whether Mr Goonan was unable to undertake personal care activities and/or usual household tasks, but whether the ability to do those activities was either affected or restricted respectively.
(j) There was a clear difference between Mr Goonan’s current activity level when compared to his status prior to the injury, in all three categories of ADL as outlined above. His capacity to undertake personal care activities such as putting on his shoes and driving has been affected, while he was restricted by pain and restriction with usual household tasks including vacuuming, picking up his children and shopping.
(k) In the circumstances, the appropriate impairment for ADL is at least 2%, if not 3%. The effect of the error is that Mr Goonan should have been assessed at least 15% WPI, rather than 14% as assessed by the MA.
The respondent’s submissions include the following:
(a) The MA was obliged to assess Mr Goonan using his clinical skills and judgement, record his findings on examination and correctly apply the relevant guidelines when assessing permanent impairment. He was required to provide adequate reasons for his decision to allow his assessment of permanent impairment to be understood and the basis for it.
(b) The MA was not required to follow or adopt the opinions of any of the doctors qualified for the parties. He was not required to refer to each, and every, piece of evidence filed by the parties and provide reasons as to why he did not agree with it.
(c) The MAC is to be read as a whole to see if the correct result was reached and not with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272).
(d) The MA recorded his findings on examination, disclosed his reasoning process and his assessment of impairment was correct and applied the correct criteria, and was in keeping with his findings. The MAC did not contain any demonstrable error and the MA correctly applied the criteria when assessing Mr Goonan.
(e) Mr Goonan inferred that ADLs should be assessed as 3% WPI. This submission relied on Mr Goonan’s statement dated 22 March 2022 which identified him as having significant issues with personal care (putting on his shoes, driving), home care (picking up his children, getting groceries out of the care, vacuuming, feeding the chickens, driving) and yard/garden/sport/recreation (gardening and landscape maintenance).
(f) Dr Bodel assessed 2% WPI for impact on ADL and took a history that
Mr Goonan’s driving was limited to about one hour and he was slowly getting back to household maintenance and cleaning activities.(g) Dr Powell reported Mr Goonan could perform all elements of personal hygiene and grooming, could perform all domestic tasks, continued to perform general maintenance tasks with difficulty and his driving was unaffected. Dr Powell assessed Mr Goonan with a 14% WPI in DRE category III which took into account a ‘moderate disruption for activities of daily living’ and persisting radiculopathy.
(h) In accordance with the Guidelines, a 2% WPI for activities of daily living was based on the worker being able to manage ‘personal care’ but having a restriction in household tasks. A 3% WPI would be assigned if the worker’s capacity to undertake personal care activities such as dressing had been affected.
(i) The MA reported Mr Goonan previously enjoyed mixed martial arts and wresting which he was unable to do, he was restricted in weight training, and he was unable to jog. The MA noted he had received the documents in the referral (the documents in the referral were the ARD and attachments and Reply with attachments).
(j) The MA recorded in the MAC the impact on Mr Goonan’s ADL based on the history taken by him and concluded 1% WPI for activities of daily living was appropriate.
(k) The MA was not bound by the assessments of other doctors and was to use their own expertise to come to an assessment, based on the history provided to them, their examination findings and the supporting material. Thus, the MA’s assessment of the ADL did not represent the application of incorrect criteria or contain a demonstrable error.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. 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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Medical Assessment Certificate
Under “Reasons for Assessment”, at 10(b) the MA assessed 14% WPI of the lumbar spine and wrote:
“Mr Goonan has undergone a decompressive procedure for his disc protrusion. According to SIRA Guidelines page 29, paragraph 4.37 he is assessed as DRE Lumbar Category III (AMA-5, page 384, Table 15-3), 10% whole person impairment. According to SIRA, page 28, paragraph 4.34 I assess a further 1% for restriction of activiteis [sic] of daily living. According to SIRA, page 29, Table I assess a further 3% for spinal surgery with residual symptoms and radiculopathy on the basis that
Mr Goonan continues to have anatomical weakness persisting post-surgery which correlates with findings on imaging. 11% combined with 3% gives 14% whole person impairment.”In commenting on the other medical opinions and findings, the MA wrote:
“In respect to the report by Dr Bodel dated 22/11/2021, I agree with the assessment as Lumbar DRE Category III. I believe a 1% loading for activities of daily living is appropriate rather than 2%. I agree with assessment of 3% on the basis of persistent radiculopathy, given the objective findings of weakness that correlate with the pre-operative MRI findings. I disagree with the assessment of 1% impairment for scarring (TEMSKI) for the reasons given above.
With respect to the report by Dr Powell dated 10/03/2022, I am in agreement with the assessment.”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
ADLs
Paragraph 4.33 of the Guidelines provides:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.”
Paragraph 4.35 of the Guidelines states that base impairment should be increased for ADL by:
· 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected;
· 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances, and
· 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.
Mr Goonan submitted that the MA failed to detail which of the ADL had been considered and the reasons why they had been included and what other activities of daily living had not been included. Mr Goonan argued that the MA had failed to provide any or adequate reasoning for his assessment of ADL, and this failure to provide adequate reasons constituted an error.
Under “Social activities/ADL”, the MA wrote: “Mr Goonan previously enjoyed mixed martial arts and wrestling which he is unable to do. He is restricted in weight training. He is unable to jog”.
The MA made an assessment of 1% for ADL. When commenting on the other medical opinions he wrote: “I believe a 1% loading for activities of daily living is appropriate rather than 2%”.
Dr James Bodel, consultant orthopaedic surgeon, in a report dated 22 November 2021, noted under “Activities of daily living”:
“He can drive an automatic motor vehicle and his driving tolerance is an hour or so. He is slowly getting back to household maintenance and cleaning activities and has improved since I saw him last. His clinical circumstance has now stabilised.”
Dr Bodel proceeded to assess permanent impairment and wrote:
“This gentleman has a DRE Lumbar Category III level of assessable impairment in accordance with the description in Table 15-3 on Page 384 of AMA5. He has had ‘surgery for radiculopathy’ and the base rating for this category is a 10% Whole Person Impairment.
His activities of daily living have been moderately compromised in accordance with Item 4.34 and Item 4.35 on Page 28 of the 4th Edition of the WorkCover Guidelines, giving a 2% loading and a 12% Whole Person Impairment overall.
He has persisting signs of radiculopathy, giving another 3% loading and a 15% Whole Person Impairment overall. The scarring is a 1% Whole Person Impairment under the TEMSKI scale for mildly complicated surgical scarring. There is therefore a total of a 16% Whole Person Impairment in this case.”
Dr Richard Powell, consultant orthopaedic surgeon, in his report dated 10 March 2022, under “Activities of daily Living” reported:
“● He can perform all elements of personal hygiene and grooming.
· He can perform all domestic tasks.
· He continues to perform general maintenance tasks though with difficulty.
· His driving is unaffected.”
Dr Powell made the following assessment of permanent impairment:
“I have considered the question of permanent impairment with respect to the
WorkCover Guides and the AMA 5th Edition. With reference to the following:
• The WorkCover Guides, Paragraph 4.37, Page 29, direct that operations performed for surgical decompression are considered under DRE Category III.
• With reference to Table 15-3 on Page 384, I assign a DRE Lumbar Category III with 11% whole person impairment.
• This takes into account a mild disruption of activities of daily living.
• Table 4.2 allocates an additional 3% whole person impairment for persisting radiculopathy.
• The total whole person impairment is obtained by combining the above figures, resulting in 14% whole person impairment.
I would not make any deductions for pre-existing pathology.”
In his statement dated 22 March 2022, Mr Goonan described the disabilities which impacted on his ADL as follows:
“9. I attempt most tasks of daily living and household maintenance as we have no one else to do it inspite of my injuries.
10. I can no longer garden nor maintain the landscape on my 20-acre rural property as it causes me too much pain bending and digging. I experience significant pain picking up my own children, getting groceries out of the car.
11. I keep a flock of chickens and getting the feed bags out of the back of my ute and down to the chicken coup causes me back pain every time that I do it, even with the use of a wheelbarrow. I am anxious about bending over as it often results in pain that can range from either a dull persistent ache or sharp, acute stabbing pain. If we could afford to pay someone to do it, I would, as it is far too heavy for me to do, but no one else can do it on a gratuitous basis.
12. Additionally, I cannot sit for long periods of time, as I begin to suffer from lower back pain meaning that my driving is most certainly affected. I do attempt to vacuum the house, though on most occasions I often experience pain in doing so. Even something as simple as putting on my shoes is painful more often than not.
13. I would certainly say that my ability to undergo normal domestic tasks and general maintenance has been significantly adversely affected by my lower back injury. Since we cannot afford to pay someone to attend to these tasks I have no choice but to push through the pain of doing them
.…
16. In summary, I continue to experience significant lumbar spine pain which is aggravated by the activities of daily living and if we could afford to do so, I would avoid doing any significant domestic tasks, property maintenance, gardening and the like to avoid increases in my back pain.”
The Appeal Panel found that when the entirety of Mr Goonan’s statement was considered, together with the medical evidence including the examination findings of the MA, the MA had erred in not providing adequate reasons for an assessment of 1% for the effect of the injury on ADL. The MA failed to address all the areas of interference with ADL as described in Paragraph 4.35 of the Guidelines and limited his comments to activities involving sport or recreational activity. There was no reference in the MAC to activities involving personal care or household tasks.
The Appeal Panel noted that the MA, in his examination had under “History relating to the injury”, reported that Mr Goonan “is unable to lean forward or bend without aggravating pain” and “is conscious of some weakness in his right leg”.
Under the heading of “Findings on physical examination”, the MA noted: “Heel-toe stance demonstrates some minor weakness of dorsiflexion of the right ankle”. He also noted: “There is Grade 3/5 power of his great toe extensors and 4/5 power of his ankle dorsiflexors”.
Under the heading “Summary”, the MA noted that Mr Goonan has “…had a reasonable result from this despite persisting symptoms”.
Under the heading “Reasons for Assessment”, the MA wrote: “Mr Goonan continues to have anatomical weakness persisting post-surgery which correlates with findings in imaging”.
The Appeal Panel accepted that Mr Goonan has persisting radiculopathy and weakness in the right foot following surgery and has some restriction in performing household tasks. Such tasks include activities that required him to bend forward or heavy activities and would limit vacuuming and cleaning floors. Mr Goonan stated that he cannot garden and it follows that he would be limited in performing activities inside the home. Further, Mr Goonan stated that his ability to drive was affected by low back pain.
The Appeal Panel, having reviewed the evidence, considered that 2% WPI was the appropriate allowance for ADLs. The Appeal Panel considered that while Mr Goonan probably had a capacity to undertake personal care activities such as dressing, washing, toileting and shaving he was restricted with usual household tasks such as vacuuming and cleaning floors and that therefore 2% was the appropriate allowance.
As Mr Goonan submitted, at 4.33 of the Guidelines it states an assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other records. The Appeal Panel is satisfied that based on all of the material that was before the Appeal Panel an assessment of 2% was appropriate.
Therefore, the Appeal Panel assessed Mr Goonan as DRE Category III of the lumbar spine with 10% WPI and added 2% WPI for ADLs giving a total of 12% WPI. To this figure an additional 3% was added for residual radiculopathy giving 15% WPI. The final combined WPI was 15% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
24 June 2022 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 before 1 January 2002
Matter Number: | W1828/22 |
Applicant: | Bernard Goonan |
Respondent: | State of New South Wales (NSW Police Force) |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Rob Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below.
Table 2 - Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002.
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.Lumbar spine | 8.8.2015 | Parge28 Para4.34 Page 29 Para 4.37 | Page 384 Table 15.3 | 15 | 0 | 15 |
| 2.Scarring (TEMSKI) | Page 74 Table 14.1 | 0 | 0 | 0 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
1
3
0