Haak & Haak as trustee for Pitstop Tyre and Auto v Smith
[2022] NSWPICMP 422
•25 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Haak & Haak as trustee for Pitstop Tyre and Auto v Smith [2022] NSWPICMP 422 |
| APPELLANT: | Susan Haak & John Haak as trustee for Pitstop Tyre and Auto |
| RESPONDENT: | Clinton James Smith |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Dr Mark Burns |
| MEDICAL ASSESSOR: | Dr Cyril Wong |
| DATE OF DECISION: | 25 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal by the employer in relation to assessment of lower digestive tract and/or anus; the Appeal Panel found error in the Medical Assessment Certificate (MAC) because the Medical Assessor did not make a finding of digestive tract disease as required by the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016); a re-examination was undertaken; at re-examination the respondent worker did report ongoing symptoms and there were no physical signs of rectal or anal diseases; this means there is no rateable impairment according to Table 6-4 of American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed) and the assessment is 0% whole person impairment; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 May 2022 Susan Haak & John Haak as trustee for Pitstop Tyre & Auto (the appellant) 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 9 May 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, 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 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 its preliminary review, the Appeal Panel determined that it was necessary for Clinton James Smith (the respondent/worker) to undergo a further medical examination because the Appeal Panel, for the reasons set out below, found error.
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.
Further medical examination
Medical Assessor Mark Burns of the Appeal Panel conducted an examination of the worker on 28 September 2022 and reported to the Appeal Panel.
The MAC
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.
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 matter was referred to the MA for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
•
Date of injury:
17/11/09
•
Body parts / systems referred:
Right upper extremity (shoulder)
Lumbar spine
Lower digestive tract and / or anus
· Method of assessment:
Scarring
Whole Person Impairment”
The MA issued a MAC certifying as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Right upper extremity (shoulder) | 17/11/09 | Chap 2 P 10 | P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03 | 6 | 0 | 6 | |
| Lumbar spine | Chap 4 P 24 | P 384 T 15-03 | 25 | 0 | 25 | ||
| Lower digestive tract and /or anus | Chap 16 P 79 | P 128 T 6-04 | 3 | 0 | 3 | ||
| Scarring | P 74 T 14.1 | 1 | 0 | 1 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 33 | ||||||
The employer appealed.
The appeal is limited to the assessment of the lower digestive tract and/or anus. The MA assessed 3% whole person impairment (WPI) for the following reasons:
“Lower Digestive Tract. This is addressed in AMA 5 Page 128, Table 6-4. There are symptoms and there has been a history of severe constipation and also of blood in the stools. No special diet is needed, nor does he have restriction of any activities. His weight has remained static. He is therefore in Class I, which provides a whole person impairment ranging between 0% and 9%. In Mr Smith’s circumstances, I am persuaded that 3% is very appropriate.”
In summary the appellant submitted on appeal that the MA made a demonstrable error or an assessment on the basis of incorrect criteria and the MA “should have applied SIRA Guidelines to the evaluation of permanent impairment 16.9 that states for constipation the assessed whole person impairment is 0%.”
In summary, the respondent worker submitted that the MA did not err or make an assessment on the basis of incorrect criteria and that the MAC should be confirmed. In summary, the respondent submitted that the MA has correctly applied his clinical judgment in assessing Class 1 at 3% WPI and the MA “has not erred in failing to apply the SIRA guidelines to evaluation of permanent impairment 16.9 as the workers diagnosis do no relate solely to constipation, but constipation and blood in stools. It is implicit that blood ins tools represents some structural or other pathological change to the lower digestive system/anus for which the assessor correctly applied AMA5 page 128, table 16.4.”
The Guidelines provide at 16.9 as follows:
“16.9 Effects of analgesics on the digestive tract:
· AMA5 Table 6-3 (p 121) Class 1 is to be amended to read ‘there are symptoms and signs of digestive tract disease’.
· Nonsteroidal anti-inflammatory agents, including Aspirin, taken for prolonged periods can cause symptoms in the upper digestive tract. In the absence of clinical signs or other objective evidence of upper digestive tract disease, anatomic loss or alteration a 0% WPI is to be assessed.
· Effects of analgesics on the lower digestive tract:
oConstipation is a symptom, not a sign and is generally reversible. A WPI assessment of 0% applies to constipation.
oIrritable bowel syndrome without objective evidence of colon or rectal disease is to be assessed at 0% WPI
· Assessment of colorectal disease and anal disorders requires the report of a treating doctor or family doctor, which includes a proper physical examination with rectal examination if appropriate, and/or a full endoscopy report.
· Failure to provide such reports may result in a 0% WPI.”
The Appeal Panel found error in the MAC because the MA did not make a finding of digestive tract disease as required by the Guidelines.
In these circumstances, the Appeal Panel was satisfied that the MA erred and required a
re-examination by a MA member of the Appeal Panel. Medical Assessor Mark Burns was appointed to conduct the re-examination which he did on 28 September 2022 and he reported to the Appeal Panel as follows:
“APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | W836/22 | ||
| Appellant: | Susan Haak and John Haak as trustee for Pitstop Tyre and Auto | ||
| Respondent: | Clinton James Smith | ||
Date of Determination: | 9/05/2022 |
Examination Conducted By: | Assessor Mark Burns |
Date of Examination: Attendance: | 28/09/2022 Clinton James Smith |
1. The workers medical history, where it differs from previous records.
Mr Smith confirmed the history reported by Assessor Anderson in his Medical Assessment Certificate dated 9 May 2022. He confirmed a long history of Panadeine Forte (opiate) and anti-inflammatory (NSAID) intake for his musculoskeletal injuries. He stated that he developed both gastroesophageal reflux (GORD) as well as chronic constipation. Associated with his constipation he noted occasional blood when passing stools. He was told that he had an anal fissure associated with the bleeding. In 2017 a colonoscopy was performed and reported as being normal except for a fissure-in-ano posteriorly.
His Panadeine Forte was replaced with Tramadol, and he continues to take an anti-inflammatory.
2. Additional history since the original Medical Assessment Certificate was performed.
He reported no change in his treatment since his assessment by Assessor Anderson. It was noted that he was wearing a knee brace following recent knee surgery. He stated that this was part of another workers compensation claim and not associated with this claim.
Current Symptoms: He continues to have occasional episodes of constipation. He opens his bowels three times per day with the stools being the firmest in the morning. It is then that he still occasionally sees blood.
Current Treatment: He sees Dr Alkhalil, his new GP at Wingham Medical Centre as required. He reported trying to eat a healthy diet but continues to put on weight. His current medications include.
· Soluble Panadol, up to 8 tablets per day,
· Tramadol, 1 tablet at night as required (currently up to five nights per week)
· Meloxicam (Mobic)
· Pantoprazole (generic Somac for GORD)
Considering the known side effect of constipation from Tramadol and Mobic, it was noted that he is not taking any stool softening medication.
3. Findings on clinical examination
Mr Smith was 170cm tall and weighed 115.6kgs.
Due to his knee brace Mr Smith was examined on his right side with his knees drawn up towards his chest
Rectal and anal examination was normal with no tenderness, no perianal inflammation, no bleeding, no fissuring, no fistulas, and no haemorrhoids. The fissure-in-ano noted at colonoscopy in 2017 has healed.
4. Results of any additional investigations since the original Medical Assessment Certificate
He reported having no further gastrointestinal tract investigations.
The Appeal Panel adopts the report and findings of Medical Assessor Burns.
Whilst the Appeal Panel notes that the worker continues to complain of constipation and occasional blood on the stools there was no evidence on re-examination of rectal or anal disease. The fissure-in-ano reported at the time of the colonoscopy in 2017 has healed completely. At re-examination, whilst the respondent worker did report ongoing symptoms, there were no physical signs of rectal or anal diseases. This means there is no rateable impairment according to Table 6-4 of AMA 5 and the assessment is 0% WPI. With further modification of his analgesics and the use of stool softeners it would be possible to eliminate his constipation.
Accordingly the Appeal Panel will revoke the MAC and issue a new certificate as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Right upper extremity (shoulder) | 17/11/09 | Chap 2 P 10 | P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03 | 6 | 0 | 6 |
| Lumbar spine | Chap 4 P 24 | P 384 T 15-03 | 25 | 0 | 25 | |
| Lower digestive tract and /or anus | Chap 16 P 79 | P 128 T 6-04 | 0 | 0 | 0 | |
| Scarring | P 74 T 14.1 | 1 | 0 | 1 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 31 | |||||
For these reasons, the Appeal Panel has determined that the MAC issued on 9 May 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 after 1 January 2002
Matter Number: | W836/22 |
Applicant: | Clinton James Smith |
Respondent: | Susan Haak & John Kaak as trustee for Pitstop Tyre and Auto |
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 Michael Hong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Right upper extremity (shoulder) | 17/11/09 | Chap 2 P 10 | P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03 | 6 | 0 | 6 | |
| Lumbar spine | Chap 4 P 24 | P 384 T 15-03 | 25 | 0 | 25 | ||
| Lower digestive tract and /or anus | Chap 16 P 79 | P 128 T 6-04 | 0 | 0 | 0 | ||
| Scarring | P 74 T 14.1 | 1 | 0 | 1 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 31 | ||||||
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