Grima v Bursons Automotive Pty Ltd
[2022] NSWPICMP 370
•26 September 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Grima v Bursons Automotive Pty Ltd [2022] NSWPICMP 370 |
| APPELLANT: | John Grima |
| RESPONDENT: | Bursons Automotive Pty Ltd |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Dr Mark Burns |
| MEDICAL ASSESSOR: | Dr John Garvey |
| DATE OF DECISION: | 26 September 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Worker had bariatric surgery following weight gain after injury to lumbar spine; Medical Assessor assessed him as class 1 in table 6-3 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed whereas the two independent Medical Examiners assessed him as class 2; Held – Appeal Panel satisfied that worker fitted the criterion in class 1 and there was no demonstrable error in the Medical Assessment Certificate (MAC) and the assessment was not made on the basis of incorrect criterial; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 August 2022 John Grima (Mr Grima) lodged an Application to Appeal against the Decision of a Medical Assessor. The medical dispute was assessed by Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 5 July 2022.
The respondent to the appeal is Bursons Automotive Pty Ltd (the respondent).
The appellant relies on the following ground 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.
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
In these proceedings, Mr Grima is claiming lump sum compensation in respect of an injury to the lumbar spine on 10 July 2017 and a consequential condition of the digestive system.
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated
19 May 2022, the matter was referred to the MA, Tim Anderson, for assessment of whole person impairment (WPI) of the lumbar spine and digestive system as a result of the injury on 10 July 2017.The MA examined Mr Grima on 28 February 2022. He assessed 12% WPI of the lumbar spine and deducted one tenth for pre-existing condition which resulted in an assessment of 11% for the lumbar spine. The MA assessed 9% for the digestive system. Therefore, the Combined Total WPI was 19% as a result of the injury on 10 July 2017.
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 Grima 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 Grima 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, 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.
Mr Grima’s submissions include the following:
(a) the MA assessed 19% WPI resulting from injury to his lumbar spine (11% WPI) on 10 July 2017 and a consequential condition affecting his digestive system (9% WPI);
(b) the assessment of WPI in respect of the digestive system was made on the basis of incorrect criteria, and the MAC contained a demonstrable error in respect of the assessment of WPI of the digestive system;
(c) the MA erred in assessing the condition of the digestive system as meeting the criteria of Class 1 of Table 6-3 of AMA 5, contrary to the medical consensus of the forensic examiners relied on by parties. Dr Berry (qualified by Mr Grima) and Dr Edwards (qualified by the respondent) both assessed the condition of
Mr Grima’s digestive system as meeting the criteria of Class 2 of Table 6-3;(d) the bariatric surgery which Mr Grima underwent on 20 January 2021, involved a sleeve gastrectomy and intestinal bypass, and obviously resulted in significant anatomic loss or alteration of the upper digestive tract. Dr Edwards acknowledged that fact in his report dated 24 January 2022;
(e) Dr Berry noted that Mr Grima suffers nausea;
(f) Dr Berry noted in his report dated 23 September 2021 that Mr Grima “suffered from a suppressed appetite” and that “many foods will upset him”. Dr Edwards noted dietary restrictions related to “whatever foods may upset him”;
(g) A review of the clinical notes attached to the Application to Resolve a Dispute (ARD) confirmed regular complaints of nausea and reflux and the prescription of medication for gastrointestinal symptoms subsequent to the bariatric surgery in January 2021. Mr Grima referred to the clinical entries including entries dated 8 February 2021, 22 February 2021,1 March 2021, 22 March 2021, 14 April 2021, 24 May 2021, 31 May 2021,12 July 2021 and 2 August 2021;
(h) a letter from Mr Grima’s general practitioner, Dr Alladi, to Dr Kadavil dated
28 June 2021 (ARD 268) recorded various medications, including Maxalon, 10mg, for GORD (Gastro-Oesophagal Reflux Disease). It is apparent that in October 2019 the appellant was taking Nexium for GORD (ARD 187) thus confirming the chronic nature of that condition;(i) the foregoing evidence satisfied the second and third criteria of Class 2, which, together with the anatomic loss and alteration caused by the surgery gave both Dr Berry and Dr Edwards reason to assess Mr Grima’s impairment as lying within that class;
(j) there was no evidence of impairment of nutrition;
(k) the MA commenced his assessment by stating that Mr Grima “comfortably satisfies the criteria in Class 1”. That was no answer to the question as to whether Mr Grima also satisfied the criteria of Class 2;
(l) the MA failed to consider the evidence with reference to each of the Class 2 criteria and to comprehend that those criteria were met;
(m) as for his evaluation of the report of Dr Berry, the MA offered the vague and essentially subjective “belief” that “the upper level of Class 1 was more appropriate than the lower level of Class 2”. This explanation failed to address whether the criteria of Class 2 were satisfied. The MA failed to explain whether he considered that any criterion of Class 2 was not satisfied, and if so, why he considered that the evidence was lacking;
(n) again, in explaining why he did not accept Dr Berry’s assessment of Class 2, the MA used similar vague and subjective terminology, asserting his opinion (without objective verification with reference to the evidence and the relevant criteria) that Dr Berry’s assessment was “excessive and that the upper level of Class I is much more appropriate to Mr Grima’s circumstances”;
(o) the MA did not explain what he considered Mr Grima’s “circumstances” to be, and why they did not provide a proper evidentiary foundation for a Class II assessment;
(p) in the circumstances the MA’s assessments were made on the basis of incorrect criteria (section 327(3)(c)) and involved a demonstrable error (section 327(3)(d)).
(q) the assessment can be remedied by an Appeal Panel attending to an examination of the Mr Grima in accordance with Table 6-3 of AMA 5, and
(r) the MAC should be revoked and substituted with a Certificate pursuant to assessment of impairment by the Appeal Panel.
The respondent’s submissions include the following:
(a) the MA was required to make an assessment based on his findings in consultation with Mr Grima and on the physical examination and his knowledge and experience, whilst remaining consistent with the Guidelines. The Guidelines required the MA to assess Mr Grima as he presented on the day of the assessment, taking into account his relevant medical history and all available medical information;
(b) the MA was not bound to accept at face value the medical evidence provided but must make a determination that is in accordance with the whole of the medical evidence and the clinical findings;
(c) the Supreme Court held in Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140 that in Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 where it is stated at [33]:
“…the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face…”;
(d) it was within the jurisdiction of the MA to form his own expert opinion as to the level of impairment and applicable loadings and as was the case here;
(e) In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) McHugh JA (as he then was) stated at 280: “If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36”;
(f) page 11 of the Guidelines provides that an assessor must use their judgment “based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guides criteria as intended” to enable an appropriate assessment;
(g) the MA used his clinical judgement with reference to the assessment of
Mr Grima’s digestive system based upon the examination and the available evidence to conclude that his condition “comfortably satisfies the criteria in Class I”;(h) further, the MA identified what constitutes a Class 1 impairment, as follows:
i.symptoms or signs of upper digestive tract dysfunction or anatomical loss or alteration (modified by the Workers Compensation Guides fourth edition to read symptoms and signs);
ii.continuing treatment is not required;
iii.his weight is satisfactory; and
iv.there are no adverse sequelae after surgery.
(i) the MA considered Mr Grima qualified for the upper level of this impairment at 9%, based upon the above features;
(j) Mr Grima relied upon the clinical notes provided in the ARD for the period between 8 February 2021 and 2 August 2021. During this time, it was reported Mr Grima was receiving treatment for his gastrointestinal symptoms subsequent to the bariatric surgery in January 2021. These clinical notes ceased on
23 August 2021 and there was nothing further reported in the clinical notes beyond 23 August 2021 that suggested Mr Grima continued to receive treatment regarding his gastrointestinal/digestive condition;(k) The clinical notes of Medimind as at 10 February 2022 (Reply 491), listed
Mr Grima’s current medications as including, Cymbalta, Diazepam, Endep, and Seroquel – treatments for his depression and anxiety;(l) the MA obtained a history of Mr Grima’s present treatment to include that “he is now under the care of an Exercise Physiologist and does his own exercise programme, he also tries to walk but can only manage about fifteen minutes at a time, he takes analgesics, some of which are opiate based, he is also on diazepam and anti inflammatories. There are also antidepressants”. There was no indication that Mr Grima was currently taking medication for his gastrointestinal/digestive condition;
(m) further, the MA reported that Mr Grima’s “gastrointestinal system seems to have largely stabilised and is not causing significant dysfunction at the moment”. The report of Dr Berry was dated 23 September 2021. At this time, it may be the case that Mr Grima did require medication to relieve him of his symptoms regarding his gastrointestinal condition, which would attract a Class 2 rating at the time;
(n) the report of Dr Edwards, dated 24 January 2022, provided a list of his current medications to include Panadol, Nurofen, Endone, Palexia, Endep, Cymbalta and occasionally Valium. Again, there was no mention of medication for treatment of his gastrointestinal/digestive condition;
(o) Dr Edwards also reported Mr Grima:
“…said he weighed 80 kg…since I last saw Mr Grima on 1 May 2019, he has undergone a gastric bypass procedure… he has decreased in weight from 138 kg to 80 kg. He said he feels well, and has no complaints regarding his surgery…he has had a successful bariatric procedure, in that he has lost weight”;
(p) the MA recorded a history of Mr Grima being around 138 kg at the time he underwent a gastric bypass. It was reported the Mr Grima has since managed to drop down to 78 kg. Further, Dr Edwards considers Mr Grima’s weight loss has been expected and appropriate. Therefore, Mr Grima’s weight was considered to be satisfactory, and it appeared he has had a good outcome following the gastric bypass surgery;
(q) the MA was not required to provide lengthy or elaborate reasoning for his conclusions, and that his judgement, based upon the examination and the available evidence was sufficient in the circumstances;
(r) further, the circumstances may change, and the evidence Mr Grima relied upon, being the consultation notes in the ARD, were outdated and not current. The MA provided his opinion and assessment of Mr Grima’s condition as at the time of the examination. It may be that Mr Grima’s condition had improved since the time of Dr Berry’s report, and based upon this, Mr Grima no longer fitted the criteria of a Class 2 impairment as assessed by Dr Berry and Dr Edwards, and
(s) in the event the matter is referred to an Appeal Panel, the MAC 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.
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 delegate 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 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.
Medical Assessment Certificate
Under “History Relating to the Injury” the MA wrote:
“Mr Grima related that on 10/07/17, while carrying out a delivery, he slipped and fell, landing on his back. His lower back condition was very painful…
Unfortunately his weight gain got progressively greater. He was reviewed by Specialist Bariatric Surgeon, Dr Fadil Khaleal. It was suggested that the excess weight was due to his forced inactivity following the lower back condition. This was approved by the Commission and a gastric bypass was conducted by Dr Khaleal in January 2012. At that stage Mr Grima was somewhere around 138kg. He has since managed to drop down to 78kg.”
Under “Present treatment”, the MA wrote:
“He is now under the care of an Exercise Physiologist and does his own exercise programme. He also tries to walk but can only mange about fifteen minutes at a time. He takes analgesics, some of which are opiate based. He is also on diazepam and anti-inflammatories. There are also antidepressants.”
Under “Present symptoms” the MA wrote:
“His gastrointestinal system sems to have largely stabilised and is not causing significant dysfunction at the moment.”
Under “Physical Examination Findings” the MA wrote:
“Mr Grima was of average stature with a height of 1.77m. His weight has now dropped down to 78kg. With these parameters, he currently has a body mass index of 24.8, which is just inside the healthy Body Mass Index (BMI) level.”
Under “Summary of injuries and diagnoses” the MA wrote:
“Mr Grima gives a history of slipping, falling and injuring his lower back in early July 2017. It has been identified that this has resulted in radiculopathy down the left leg. There has also been the identification of a pars inter-articularis defect at the L5/S1 articulation. At this stage there are no plans for any surgical stabilisation procedure and his clinical management continues conservatively.
As a consequence of this lower back condition, he put on excessive weight. This has been managed by bariatric surgery and has given him an extremely good result. He has managed to lose his weight and now is within the healthy BMI bracket. The remainder of his clinical management remains conservative”.
Under “Reasons for Assessment”, the MA assessed 9% WPI in respect of the digestive system. The MA wrote:
“Digestive System. This is addressed in AMA 5 Page 121, Table 6-3.
Mr Grima comfortably satisfies the criteria in Class I. This identifies:
(i)Symptoms or signs of upper digestive tract dysfunction or anatomical loss or alteration.
(ii)Continuing treatment is not required.
(iii)His weight is satisfactory.
(iv)There are no adverse sequelae after surgery.
Class I provides a whole person impairment ranging between 0% and 9%. With these features, it is assessed that he would qualify for the upper level of this impairment at 9%.”
In commenting on other medical opinions, the MA wrote:
“Specialist Surgeon, Dr Kim Edwards in his reports of 10/05/19 and 24/01/22 … assesses 10% WPI for the gastro-intestinal condition with Class II. With great respect, I believe the upper level of Class I is more appropriate than the lower level of Class II.
Specialist Surgeon, Dr Neil Berry in his reports of 07/08/19, 23/09/21 and 17/11/21 assesses the lumbar spine with DRE Ill, which I have done… With the digestive tract he selects 15%. This is in Class II. Again, I am persuaded that this is excessive and that the upper level of Class I is much more appropriate for Mr Grima's circumstances.”
Assessment of the digestive system
Table 6-3 of AMA 5 sets out the criteria for rating permanent impairment due to upper digestive tract disease. The criteria for Class 1 (0%-9% Impairment of the Whole Person), are as follows:
“symptoms or signs of upper digestive tract dysfunction or anatomical loss or alteration
and
continuous treatment not required
and
maintains weight at a desirable level
or
no sequelae after surgical procedures.”
The criteria for Class 2 (10% -24% Impairment of the Whole Person), are as follows:
“symptoms and signs of upper digestive tract disease or anatomical loss or alteration
and
requires appropriate dietary restrictions and drugs for control of symptoms, signs or nutritional deficiency
and
weight loss below desirable weight but does not exceed 10%.”
Mr Grima submitted that the relevant criteria for a Class 2 assessment under Table 6-3 were as follows:
“objective evidence of colonic or rectal disease or anatomic loss or alteration
and
mild gastrointestinal symptoms with occasional disturbances of bowel function, accompanied by moderate pain
and
minimal restriction of diet or mild symptomatic therapy may be necessary
and
no impairment of nutrition.”
The Appeal Panel noted that the relevant criteria identified by Mr Grima in his submissions and set out above were, in fact, the criteria for a Class 2 assessment under Table 6-4, that is, “Criteria for Rating Permanent Impairment Due to Colonic and Rectal Disorders”.
Mr Grima submitted that the MA erred in assessing the condition of the digestive system as meeting the criteria of Class 1 of Table 6-3 of AMA 5, contrary to the medical consensus of Dr Berry and Dr Edwards, both of whom assessed the condition as meeting the criteria of Class 2 of Table 6-3. Mr Grima submitted that the MA failed to consider the evidence with reference to each of the Class 2 criteria, failed to address whether the criteria of Class 2 were satisfied failed to explain whether he considered that any criterion of Class 2 was not satisfied, and if so, why he considered that the evidence was lacking.
The Appeal Panel reviewed the evidence in the matter.
In the MAC dated 5 July 2022, the MA noted that Mr Grima underwent gastric bypass surgery in January 2021. The MA noted that present treatment included an exercise programme, analgesics some of which were opiate based, diazepam, anti-inflammatories and antidepressants. Under present symptoms, the MA noted that Mr Grima’s gastrointestinal system seemed to have largely stabilised and was not causing significant dysfunction at the moment.
The MA considered that the digestive system had largely stabilized and was not causing significant dysfunction “at the moment”. On examination, Mr Grima weighed 78 kg and had a BMI of 24.8. The MA noted that Mr Grima weighed 138 kg before the surgery in January 2021. The MA commented that this was an extremely good result from bariatric surgery and Mr Grima was now within the healthy BMI bracket. The MA assessed 9% WPI (Class 1, Table 6-3, page 121, AMA5) for anatomical loss and alteration, for not requiring continuing treatment with weight satisfactory and for no adverse sequelae after surgery.
In his statement dated 21 April 2022, Mr Grima said that he had put on weight as a result of restrictions caused by his lower back injury. He stated that he underwent a sleeve gastrectomy on 20 January 2021. Mr Grima stated that the surgery was successful and his weight had decreased from around 138 kg to around 85kg. He said that he continued to see his general practitioner and an exercise physiologist once a week for ongoing treatment and was prescribed Panadol, Nurofen, Palexia and Endone.
In a report dated 7 August 2019, Dr Berry noted that he had examined Mr Grima on
25 June 2019 and recorded an examination weight of 134.4 kg (BMI 44.8). Dr Berry found no abdominal tenderness, guarding or masses. The diagnosis was obesity to be controlled by either diet and exercise or surgical intervention.
In a report dated 23 September 2021, Dr Berry noted that he had examined Mr Grima via video link on 23 September 2021. Dr Berry noted that Mr Grima sustained a back injury on 10 July 2017 and due to that injury was unable to exercise and his weight increased from approximately 105kg to 138 kg. Dr Berry noted that Mr Grima suffered from a suppressed appetite, many foods would upset him and he suffered from nausea. Mr Grima confirmed that he was 85kg in weight. On examination Dr Berry reported that the abdomen was reasonably flat and Mr Grima indicated that there were no areas of tenderness. Dr Berry observed that it was pleasing to see that as a result of undergoing bariatric surgery, Mr Grima had lost 53kg in weight.
In a supplementary report dated 17 November 2021 Dr Berry assessed 15% WPI for the upper digestive system (Class 2 Table 6-3 AMA 5).
In a report dated 10 May 2019, Dr Kim Edwards noted that Mr Grima stated that he weighed 130kg. Dr Edwards expressed the opinion that Mr Grima was morbidly obese with a BMI of 40. Dr Edwards expressed the opinion that laparoscopic sleeve gastrectomy was not reasonably necessary treatment for the workplace injury and preferred a dietary approach for weight loss.
In a report dated 24 January 2022, Dr Edwards noted that Mr Grima underwent a gastric bypass operation in January 2021 and weighed 80 kg with a BMI of 25.5. There had been a decrease in weight from 138kg to 80kg. On examination of the abdomen, there were no areas of tenderness, and no masses. No abnormality was found. Current medication consisted of Panadol, Nurofen, Endone, Palexia, Endep, Cymbalta and occasionally Valium. Dr Edwards noted that the bariatric procedure had been successful in that Mr Grima had lost weight and the prognosis was good. He noted that Mr Grima was now at 80kg “which is a reasonably desirable weight for him”. Dr Edwards wrote:
“The operation has resulted in ‘anatomic loss or alteration’ of the upper digestive tract. Mr Grima does not require dietary restrictions except for whatever foods may upset him, or for the volume of food he could eat.
His weight loss has been expected and appropriate.
Table 6.3, Page 121, AMA 5, indicates Mr Grima would fit into a Class II permanent
impairment rating due to the upper digestive tract. This would result in 10% whole
person impairment.”
In a supplementary report dated 1 May 2022, Dr Edwards stated that his opinion remained unchanged from his report of 24 January 2022.
Mr Grima submitted that a review of the clinical notes attached to the ARD confirmed regular complaints of nausea and reflux and the prescription of medication for gastrointestinal symptoms subsequent to the bariatric surgery in January 2021. The Appeal Panel noted the following entries:
(a) consultation note dated 8 February 2021 (ARD117): “Post op Day 21+ some nausea, Feel nauseas, is having some headaches…notes since the gastric bypass procedure, has noticed a worsening of his reflux and nausea”. Maxolon Tablet 10mg was prescribed;
(b) consultation note dated 22 February 2021 (ARD 118): “Post op: A little over a month at the moment. Unable to come in today for weigh in. pt still on liquids and semi solids. Feeling weak and tired, nausea, noted by Dr Khaleal, advised that it was a normal part of getting used to the new diet”;
(c) consultation note dated 1 March 2021 (ARD 120): “Pt comments- still feels a bit tired – always have nausea… Appetite: has been very nauseous of late… GORD: Pt comments that it has been much better since he has been on his regular medication. He is wondering if his nausea is being caused by reflux…Cont with maxolon”. Maxolon Tablet 10mg was prescribed;
(d) consultation note dated 22 March 2021 (ARD 121): “Weight loss: Weight 104kg…Pt comments - still feels a bit tired – always have nausea”. Maxolon Tablet 10mg prescribed;
(e) consultation note dated 14 April 2021 (ARD 124): “Patient with background of gastric bypass surgery; having recurrent nausea and vomiting. His specialist aware of the problem. Taking Metoclopramide for his nausea…Reason for contact: nausea”. Maxolon Tablet 10mg prescribed;
(f) consultation note dated 24 May 2021 (ARD126): “Appetite variable…GORD: Pt comments that it has been much better since he has been on his regular medication. Pt comments hasn’t had any vomiting or diarrhorea [sic]. O.E Abdo soft and non tender. Plan: Script of nausea medication”;
(g) consultation note dated 31 May 2021 (ARD 127-128): “Appetite variable”. Maxolon Tablet 10mg prescribed;
(h) consultation note dated 21 June 2021 (ARD 129): “Appetite supressed”. Maxolon Tablet 10mg prescribed;
(i) consultation note dated 12 July 2021 (ARD 132): “…still has issues with diet… Appetite reduced (as planned)”. Maxolon Tablet 10mg prescribed, and
(j) Consultation Note on 2 August 2021 (ARD 134): “Advised about the non medical management of Reflux. If needed, to also have Esomeprazole”. Prescription added: ESOMEPRAZOLE EC TABLET 20mg 1 daily.
A letter addressed by Mr Grima’s general practitioner, Dr Alladi, to Dr Kadavil on
28 June 2021 (ARD 268) recorded various medications, including Maxalon, 10mg, for GORD (Gastro-oesophagal Reflux Disease).The Appeal Panel accepted that both Dr Berry and Dr Edwards assessed Mr Grima’s condition as meeting the criteria of Class 2 of Table 6-3. Dr Berry assessed Mr Grima via video link on 23 September 2021, about eight months after the gastric bypass surgery, and did not carry out an examination in person. In a supplementary report dated
17 November 2021, Dr Berry made an assessment of WPI relying on his findings from the examination on 23 September 2021. He assessed Mr Grima as having 15% WPI of the upper digestive tract (Class 2 of Table 6-3 of AMA 5). Dr Berry provided no reasons as to why he considered Mr Grima satisfied the criteria for a Class II impairment in Table 6-3.Dr Edwards also assessed Mr Grima as Class 2 of Table 6-3 of AMA 5 noting that there was an anatomic loss and no dietary restrictions required except for whatever foods may have upset him and volumes of food he could eat. Dr Edwards noted that Mr Grima was now at 80kg which was “a reasonably desirable weight for him”. The Appeal Panel were of the view that the criteria identified by Dr Edwards would have resulted in an assessment in Class 1 and not Class 2 of Table 6-3 as he considered Mr Grima was at a desirable weight and
Mr Grima did not require drugs for control of symptoms, signs or nutritional deficiency.The clinical notes referred to by Mr Grima only covered the period from 8 February 2021 to
2 August 2021, that is, until about seven months after the surgery in January 2021. Nausea is not uncommon following gastric bypass surgery and it is normal for a patient to experience reflux for a period following surgery. There is no evidence that Mr Grima needed medication of reflux or any other gastrointestinal condition after August 2021. The last reference to
Mr Grima having nausea appeared to have been made by Dr Berry in his report dated
23 September 2021. The Appeal Panel therefore considered that Mr Grima’s condition continued to improve after he was assessed by Dr Berry in September 2021.When the Appeal Panel considered the criteria in Class 1 and Class 2 of Table 6-3, it was clear that Mr Grima fitted the criteria in Class 1 of Table 6-3 of AMA 5. Mr Grima did have anatomic loss or alteration, continuous treatment was not required, he maintained a desirable weight and there were no sequalae after the surgical procedure. Mr Grima did not satisfy all of the required criterion in Class 2 of Table 6-3 of AMA 5. Although he did have anatomic loss or alteration, he did not require drugs for control of symptoms, signs or nutritional deficiency and weight loss was not below desirable weight.
The MA clearly set out his reasons for assessing Mr Grima as Class 1 of Table 6-3 of AMA 5. He noted that Mr Grima had symptoms or signs of upper digestive tract dysfunction or anatomical loss or alteration, continuing treatment was not required, his weight was satisfactory and there were no adverse sequelae after surgery. The MA assessed Mr Grima at the upper level of Class 1 at 9% WPI.
Mr Grima submitted that the MA failed to consider the evidence with reference to each of the Class 2 criteria, failed to address whether the criteria of Class 2 were satisfied and failed to explain whether he considered that any criterion of Class 2 was not satisfied.
The MA carried out an in person assessment, including an examination, on 9 June 2022. The MA obtained an up to date history, including details of the medications Mr Grima took at the time of the assessment. The MA found no gastrointestinal symptoms and there was no treatment. The MA referred to the assessments of Dr Berry and Dr Edwards of a Class 2 impairment of the upper digestive tract and stated that a Class 2 assessment was excessive and Class 1 was more appropriate. It can be inferred from these comments that the MA did consider the criteria in both Class 1 and Class 2 in Table 6-3 of AMA 5. While the MA may not have addressed in detail whether the criteria of Class 2 were satisfied and why he considered that any criterion of Class 2 was not satisfied, it was clear from his history and findings that Mr Grima did fit Class 1 and did not satisfy the second and third criteria in Class 2.
The Appeal Panel was satisfied that the MA made an appropriate assessment and agreed with the assessment made by the MA of Class 1 in Table 6-3 of AMA 5.
In conclusion, the Appeal Panel did not consider that there has been an incorrect application of relevant assessment criteria, that is, the Guidelines and AMA 5 or any demonstrable error in the MA’s assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 July 2022 should be confirmed.
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