Hearn v Statewide Mechanical Services
[2021] NSWPICMP 24
•17 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hearn v Statewide Mechanical Services [2021] NSWPICMP 24 |
| APPELLANT: | Michael Hearn |
| RESPONDENT: | Statewide Mechanical Services |
| APPEAL PANEL: | Ms Catherine McDonald Dr Mark Burns Dr Roger Pillemer |
| DATE OF DECISION: | 17 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker suffered a back injury and a knee injury; fresh evidence; application of the criteria for the assessment of radiculopathy; no major criterion in paragraph 4.27 of the Guidelines; method of assessment of knee injury following partial meniscectomy; re-examination sought to determine if was error; role of AMS in considering assessments by independent medical examiners; State of New South Wales v Kaur considered; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 December 2020 Michael Hearn lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr Tommasino Mastroianni, an Approved Medical Specialist (AMS) under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 8 December 2020.
Mr Hearn 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 Registrar was 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 grounds 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
Mr Hearn was employed by Statewide Mechanical Services (NSW) Pty Ltd as a sheet metal worker when he fell on 15 July 2017 whilst walking down concrete fire stairs and carrying a box. He injured his back and left knee.
Mr Hearn underwent an arthroscopic chondroplasty and partial meniscectomy on 4 October 2017. Afterwards, he continued to suffer back pain and leg pain and he underwent an MRI scan which revealed lateral recess stenosis at L3/4 and L 4/5 as well as degenerative disc disease. A/Prof M Jaeger, neurosurgeon, recommended peri-radicular steroid injections which Mr Hearn underwent in May 2018.
On 30 August 2018, A/Prof Jaeger performed a L3/4 and L4/5 left microdiscectomy, spinal canal decompression and rhizolysis.
The AMS assessed 13% whole person impairment (WPI) in respect of Mr Hearne’s lumbar spine and deducted one-tenth to reflect the contribution of pre-existing degenerative changes. He assessed 1% permanent impairment in respect of the left lower extremity as a result of the meniscectomy and 1% under Table for the Evaluation of Minor Skin Impairments (TEMSKI).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the assessment made by the AMS was appropriate. There is sufficient information in the file to determine the appeal.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Mr Hearn seeks to rely on an MRI scan report by Dr R Petersen dated 15 April 2019 which his solicitor said was not provided by Statewide’s insurer with its file and she was unaware of it until it was provided by A/Prof Jaeger in December 2020. Mr Hearn’s solicitor said that it was referred to by Dr F Machart in his report dated 4 August 2020 to the insurer. She submitted that it provided radiological support for a finding of radiculopathy.
Statewide said that it was open to Mr Hearn’s solicitors to request a copy of the MRI scan report when Dr Machart’s report was served. It noted that the Appeal Panel had a discretion to admit the evidence but said that the evidence was not capable of altering the assessment.
The Appeal Panel determines that the MRI scan report dated 16 April 2019 should be admitted into evidence. It supports the assessment made by the AMS and the reasons set out below.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
The parts of the medical certificate given by the AMS 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.
In summary, Mr Hearn, through his solicitor Ms Walsh, submitted that the AMS erred with respect to the assessment of his lumbar spine in failing to find that he met the criteria for radiculopathy and on the assessment of the left lower extremity.
Mr Hearn submitted that his symptoms of numbness and tingling radiating from his back down his left leg to his foot and the sensation of burning or cold on the top of his leg are signs pf radiculopathy, as were the findings made by the AMS of decreased sensation of the anterolateral aspect of the left leg in the distribution of the femoral nerve and muscle wasting. He submitted that the 2019 MRI scan report shows a “small to moderate posterocentral disc protrusion with bilateral predominance touching the descending nerve roots slightly greater on the left” which is radiological support for a finding of radiculopathy. He submitted that the AMS should have applied an extra rating for radiculopathy.
In respect of his left knee, Mr Hearn submitted that there was inconsistency between the examination findings of the AMS and Dr Bodel so that there was doubt cast on the examination findings and a re-examination was warranted to assess the range of motion.
In reply, Statewide submitted that there was no error in the AMS’s assessment of Mr Hearn’s lumbar spine. It submitted that the task of the AMS was to conduct a clinical examination and make findings on the day of assessment. The AMS assessed Mr Hearn’s left lower extremity by the Diagnosis Based Estimate method. It noted that if the Guidelines provide that the range of motion cannot be used to assess impairment if there is inconsistency.
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[1] 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.
[1] [2006] NSWCA 284.
The MAC
The AMS set out the history of the injury and treatment and noted Mr Hearn’s symptoms. His findings on examination included:
“Examination of the lower limbs reveals healed arthroscopy wounds on the left knee. There is no tenderness in the knee. The knee extends normally to 0° and flexes to 120°. The right knee flexes normally to 0° and flexes to 125°.
There is decreased sensation of the anterolateral aspect of the left leg in the femoral nerve distribution. Sensation in the left leg was otherwise normal, both to light touch and sharp stimuli. There is 1½ cm of wasting of the left thigh and 1cm wasting of the left calf consistent with favouring the left leg. Muscle tone was decreased on the left side.
There was normal power in the left leg with power in the big toes being symmetrical. Knee and ankle jerks were generally depressed, right equals left. The hamstring jerks were difficult to elicit on both sides. Straight leg raise supine was 45°. Straight leg raise when sitting is 80°. Nerve root tension signs are negative.”
The AMS saw the MRI scan of the left knee dated 2 August 2017 and the MRI scan of the lumbar spine dated 21 February 2018.
The AMS diagnosed a lumbar disc lesion and a meniscal tear of the left knee. He set out his reasons for assessment:
“Mr Hearn had partial meniscectomy in the left knee. This equates to 1% WPI (see 10b). There is wasting in the leg which is sequelae of the limp from the back injury. Loss of muscle bulk was not assessed as it is not a consequence of the meniscectomy.
Mr Hearn falls into DRE Lumbar Category III (see 10b). ADLs are affected; however he is independent in self-care. I assess 12% whole person impairment.
As he had surgery at a second level, this attracts further impairment (see 10b). He has 1% impairment of the lumbar spine due to surgery at the additional level.
He does not meet the criteria for radiculopathy as per the Guidelines (see 10b).
There is evidence of underlying degenerative disease in the lumbar spine which is a component of the current impairment. Based on the history of no previous injuries or problems, I have deducted one-tenth applying the provision of s323.
The combined impairment of the lumbar spine (12% + 1% for the modifiers) is 13%. One-tenth deduction equates to 1.3%. He therefor has 11.7% which rounds off to 12% WPI.
The scar in the back is a complicated surgical scar and best fits the descriptors for 1% under the best fit principles of the TEMSKI classification. He is not conscious of the scar. There is colour contrast with the surrounding skin. He can locate the scar. There are minimal trophic changes. Suture marks are visible. The anatomic location is not usually visible with usual clothing. There is no contour defect and negligible effect on ADLs.”
The AMS compared his assessments to those of Drs Bodel and Machart. With respect to Dr Bodel he said:
“Dr Bodel finds -5° extension in the knee. I found normal extension and comparing it with the non-injured limb, the extension was the same.
I also found wasting in the leg however this is secondary to the limp associated with the back injury and not sequelae of the knee injury.
Dr Bodel records positive nerve root tension signs on the left. I could not reproduce those signs. He finds weakness of extension of the left great toe. I found no weakness.
I found no sensory loss in a dermatomal distribution consistent with the disc lesion.
Dr Bodel makes no deduction for pre-existing condition. In my opinion a deduction is applicable as there is widespread degenerative disease in the spine unrelated to the accident which is a component of the current impairment.
I found the same impairment for scarring.”
Principles of assessment
The AMS was required by the Guidelines to make his own assessment of Mr Hearn as he presented on the day of the examination[2] and to exercise his own clinical judgement in making the assessment.
[2] Paragraph 1.6.
Campbell J described the task of the AMS in State of New South Wales v Kaur[3]:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[3] [2016] NSWSC 346.
Mr Hearn sought a re-examination because of the discrepancy between the findings of the AMS and those of Dr Bodel. That is, in effect, a request for an examination to determine if there is an error in the MAC. A re-examination cannot be carried out before the Appeal Panel has determined if there is an error.[4]
[4] New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792; Mercy Connect Limited v Kiely [2018] NSWSC 1421.
Lumbar spine
Mr Hearn’s only complaint with respect to the assessment is that the AMS did not allow a loading for radiculopathy.
The Guidelines provide[5]:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
· loss or asymmetry of reflexes
· muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
· reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
· positive nerve root tension (AMA5 Box 15-1, p 382)
· muscle wasting – atrophy (AMA5 Box 15-1, p 382)
· findings on an imaging study consistent with the clinical signs (AMA5, p 382).
Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
[5] Paragraphs 4.27 and 4.28.
Mr Hearn has sought to argue that his symptoms of numbness and tingling radiating from his back down the left leg into the foot and the sensation of burning or cold in the top of his legs are signs of radiculopathy. Those are subjective symptoms. The signs of radiculopathy are objective. The symptoms of which Mr Hearn complains are non-verifiable radicular pain and do not justify the loading for radiculopathy under Table 4.2.
The examination findings recorded by the AMS reveal that he did not observe loss or asymmetry of reflexes. He identified decreased sensation in the distribution of the femoral nerve over the lateral thigh. This is the lateral femoral cutaneous branch, which is supplied from the L2 and L3 nerve roots. It is not the appropriate spinal nerve root for Mr Hearn’s disc injuries at L3/4 and L4/5. It therefore does not fulfil the criterion for reproducible impairment of sensation.
Dr Bodel did not give reasons for assessing radiculopathy in his assessment report. In his main report, Dr Bodel said that there was weakness of extension of the great toe and sensory loss in the L5 distribution on the left and the medial hamstring reflex was diminished on the left.
The observations made by the AMS were different. He explained that he was unable to reproduce the signs observed by Dr Bodel. Based on his findings there is no error in not assessing radiculopathy based on his findings on the day of his examination.
The 2019 MRI scan does not assist Mr Hearn. While it shows possible nerve root abutment at L4/5, findings on imagining consistent with clinical signs is a minor criterion.
The AMS did observe wasting as a consequence of Mr Hearn’s limp from his back injury. The Guidelines refer to Box 15-1 of AMA 5 which says in the definition of atrophy:
“For reasons of reproducibility, the difference in circumference should be 2 cm or greater in the thigh and 1 cm or greater in the arm, forearm, or leg.”
The wasting in Mr Hearn’s thigh is not sufficient for a diagnosis of atrophy though the 1 cm loss of his calf is. However, atrophy is also a minor criterion.
None of the major criteria for the diagnosis of radiculopathy were present and there is no error in the assessment of Mr Hearn’s lumbar spine.
Left lower extremity
The AMS assessed Mr Hearn’s knee injury as a partial meniscectomy under Table 17-33 of AMA 5. Paragraph 17.2j of AMA 5 says that “[s]ome impairment estimates are assigned more appropriately on the basis of a diagnosis than on the basis of findings on examination” and refers to Table 17-33 where impairments for certain lower extremity losses are provided. Table 17-33 provides an impairment of 1% WPI or 2% lower extremity impairment for a partial meniscectomy.
Dr A Bhimani’s operation report dated 4 October 2017 confirms that the surgery was a partial meniscectomy.
There is no error in the assessment made by the AMS. Dr Machart used the same method.
The Guidelines provide in paragraph 3.16 that the range of motion method cannot be a valid parameter of impairment evaluation if there is inconsistency. The argument that there was inconsistency between the observations made by Dr Bodel and the AMS is an argument against the use of the range of motion method.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 December 2020 should be confirmed.
Catherine McDonald
Member
Dr Mark Burns
Medical Assessor
Dr Roger Pillemer
Medical Assessor
17 March 2021
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