Ilievski v Ezko Property Services (Aust) Retail Pty Ltd
[2022] NSWPICMP 437
•1 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ilievski v Ezko Property Services (Aust) Retail Pty Ltd [2022] NSWPICMP 437 |
| APPELLANT: | Riste Ilievski |
| RESPONDENT: | Ezko Property Services (Aust) Pty Ltd |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Gregory McGroder |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 1 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Injury to both shoulders and consequential condition in lumbar spine; Medical Assessor obtained a history of the impact on activities of daily living (ADL) but did not explain why he did not make an assessment under paragraphs 4.33 to 4.35 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021); Held – ADLs impacted as a result of lumbar spine condition; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 August 2022 Riste Ilievski lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Associate Professor Philip Truskett, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 July 2022.
Mr Ilievski relies on the grounds of appeal under s 327(3)(c) and (d) 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 was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that the MAC contains a demonstrable error. 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 Dispute Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed reissued 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 Ilievski was employed by Ezko Property Services (Aust) Pty Ltd (Ezko) as a cleaner. On 24 April 2019 he suffered an injury to his right shoulder lifting a container of fuel to fill his ride-on cleaning machine. Mr Ilievski suffered a right shoulder rotator cuff tear. A few days after the injury, he developed pain in his lower back whilst reaching behind on the toilet. A/Prof Haber performed an arthroscopic repair of Mr Ilievski’s right shoulder on 26 July 2019.
Mr Ilievski returned to work and on 19 May 2020 suffered an injury to his left shoulder cleaning around the base of a pole. He underwent arthroscopic repair of a rotator cuff tear on 17 July 2020. He did not return to work after that operation.
The Medical Assessor was asked to assess Mr Ilievski’s right and left upper extremities and lumbar spine. He assessed 1% whole person impairment (WPI) in respect of Mr Ilievski’s right upper extremity (shoulder) and 4% WPI in respect of the left. In respect of the lumbar spine, the Medical Assessor assessed Mr Ilievski in DRE Lumbar Category II resulting in 5% WPI from which he deducted one-fifth under s 323 of the 1998 Act.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for the worker to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the medical certificate given by the Medical Assessor 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 we have considered them.
The appeal relates only to the failure by the Medical Assessor to make an allowance for the impact of the lumbar spine injury on Mr Ilievski’s activities of daily living (ADL).
In summary and in submissions prepared by Mr Horan of counsel, Mr Ilievski submitted that, the Medical Assessor “ignored, misused or misconstrued Table 1-2 on page 4 of AMA 5, which clause 1.24 of the Guidelines … states should be considered…”.
Mr Horan also submitted that the Medical Assessor did not apply or consider paragraphs 4.33 to 4.35 of the Guidelines, noting that 3% should be added if a worker’s ability to undertake personal care activities such as dressing or toileting is affected or 2% if a worker can manage personal care but is restricted in household tasks or tasks such as shopping or walking reasonable distances. Mr Horan said that Dr Bodel added 2% for the impact on Mr Ilievski’s ADLs but the history obtained by the Medical Assessor warranted an assessment of 3% WPI.
In reply, and in submissions prepared by its solicitor, Mr Vrettos, Ezko noted that the Guidelines provided in paragraph 1.24 that the impact of the injury on ADLs is not considered in the assessment of the upper extremities and that paragraph 4.33 provides that the assessment of the impact of a spinal injury on ADLs is not solely dependent on self-reporting but is based on an assessment of clinical findings and other reports. Mr Vrettos said it was necessary to distinguish between the impact of the shoulder injury and the lumbar spine condition. He noted that the history obtained by the Medical Assessor was consistent with that of Dr Wallace and said that the impact on self-care was a result of Mr Ilievski’s shoulder injuries.
FINDINGS AND REASONS
The procedures on appeal are set out in s 328 of the 1998 Act. The appeal is 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 Medical Assessor described his examination of Mr Ilievski’s lumbar spine:
“On examining his back, there was no kyphosis or scoliosis. There was no loss of lumbar lordosis. There was no paravertebral muscle guarding. Power and tone were normal. There was reduced sensation of the left lower limb of 8/10 from the knee to the toes. This was not a radicular distribution. Knee, medial hamstring and ankle jerks were equal. There was some reduction in back movement. Flexion and extension were half normal. Lateral flexion to left and right was half normal. Rotation to left and right was normal. He could walk on his toes and his heels. He could manage a two-thirds squat with support.”
In the section of the MAC relating to social activities and ADL, the Medical Assessor said:
“He is unable to run or jog. He can walk for 15 minutes, stand for 15 minutes, and sit for 15-20 minutes. He can climb stairs and hills using a rail. He can drive a motor vehicle for 10 minutes. He goes shopping with a trolley. He can do housework. He can mow the lawns, but this will cause discomfort. He can lift weights in the order of 5kg in his right hand. He can do the washing and hang it out. He can do some gardening. He can socialise. He can perform all activities of daily living although his wife on occasions helps him put on his socks. He has difficulty performing anal toilet and often has a shower after he defaecates.”
The Medical Assessor summarised the injuries and diagnoses:
“• Right rotator cuff tear of shoulder with persisting discomfort post-operatively
• Left rotator cuff tear with persisting discomfort post-operatively
• Degenerative changes of lumbar spine with left non-verifiable radicular complaint
consistency of presentation:
The sensory loss described is not indicative of radicular distribution and may represent a mild peripheral neuropathy. He was otherwise consistent in examination.”
When giving the reasons for his assessment the Medical Assessor said:
“5% whole person impairment has been assigned as he demonstrates non-verifiable radicular complaint. There is no radiculopathy as outlined by paragraph 4.27 and he can perform activities of daily living as outlined by paragraph 4.34.”
The Medical Assessor commented on Dr Wallace’s opinion but not that of Dr Bodel. Dr Wallace assessed 0% WPI in respect of Mr Ilievski’s lumbar spine.
The Guidelines
The Guidelines adopt AMA 5 but paragraph 1.1 provides that where there is any deviation from AMA 5, the Guidelines prevail.
Paragraphs 1.24 and 1.25 provide:
“Many tables in AMA5 (eg in the spine section) give class values for particular impairments, with a range of possible impairment values in each class. Commonly, the tables require the assessor to consider the impact of the injury or illness on activities of daily living (ADL) in determining the precise impairment value. The ADL which should be considered, if relevant, are listed in AMA5 Table 1–2 (p 4). The impact of the injury on ADL is not considered in assessments of the upper or lower extremities.
The assessment of the impact of the injury or condition on ADL should be verified, wherever possible, by reference to objective assessments – for example, physiotherapist or occupational therapist functional assessments and other medical reports.”
In respect of the spine, the Guidelines explain that impairment of the spine is assessed using diagnosis-related estimates (DRE) and describe how that method is to be applied. Paragraph 4.33 explains how to apply the impairment range in the DRE categories in AMA 5:
“4.33 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.”
The Guidelines provide a method for considering the impact of the impairment on ADLs which is more precise than AMA 5. In accordance with paragraph 1.1, the method in the Guidelines prevails. Paragraphs 4.34 and 4.35 provide:
“4.34 The following diagram should be used as a guide to determine whether 0%, 1%, 2% or 3% WPI should be added to the bottom of the appropriate impairment range. This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury.
…
4.35 The diagram is to be interpreted as follows:
Increase base impairment 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
· 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.”
The application of the DRE method of assessment in accordance with the Guidelines required the Medical Assessor to consider if there should be an assessment for the impact of the condition in his lumbar spine on Mr Ilievski’s ADLs and to explain his reasoning. Because he was assessing Mr Ilievski in respect of upper extremity impairment (which does not permit an assessment for ADLs) and his lumbar spine, it was important that he set out his reasoning clearly. The Medical Assessor did not explain why he did not make an assessment as a result of the impact of the lumbar spine condition on Mr Ilievski’s ADLs and therefore made a demonstrable error.
Reassessment
As noted above, there is enough information in the file and the MAC to assess the impact of the lumbar spine condition on Mr Ilievski’s ADLs. It is important to assess only those activities which are a result of his back condition.
The Medical Assessor noted that Mr Ilievski was consistent on examination, which is confirmed by his excellent range of shoulder movements bilaterally.
A CT scan taken before the injury on 21 December 2018 showed generalised degenerative changes. A further CT scan on 13 September 2019 showed left L5 neuroforaminal stenosis which was treated by a CT guided steroid injection immediately adjacent to the exiting L5 nerve root on 11 February 2020.
The Medical Assessor observed that there is a reduction in Mr Ilievski’s back movement to half of normal in respect of flexion, extension and lateral flexion, though rotation was normal. He accepted that Mr Ilievski presented consistently, suggesting that he accepted Mr Ilievski’s complaints and abilities. The Medical Assessor set out Mr Ilievski’s tolerances for walking, standing, sitting and driving and noted that he sometimes requires his wife’s assistance to put on his socks. All of those activities are related to Mr Ilievski’s lumbar spine rather than his shoulders.
Those findings are consistent with Mr Ilievski’s statement dated 13 May 2022 in which he says that he struggles to walk freely, that he has pain going down his left leg and that his back pain is aggravated by prolonged sitting, standing, bending, twisting or lifting.
Dr Bodel, who assessed Mr Ilievski for his solicitors and reported on 30 August 2021, assessed 2% for the impact of his lumbar spine injury on ADLs. Dr Bodel obtained a truncated history, noted that Mr Ilievski’s driving tolerance is half an hour and that he “struggles with household maintenance and cleaning activities”. He did not obtain any history of difficulties with self-care.
Dr Wallace saw Mr Ilievski for Ezko’s insurer and reported on 17 January 2020 and 7 February 2022. In his first report he said that Mr Ilievski was able to do light housework at a slow pace and to continue with mowing and gardening. Dr Wallace considered that Mr Ilievski’s lumbar spine condition was degenerative and not work-related. At the time of Dr Wallace’s second examination, he noted that Mr Ilievski’s capacity for household tasks and gardening was the same but he was unable to mow. Dr Wallace also noted that Mr Ilievski had difficulty putting on shoes and socks.
The Medical Assessor noted that Mr Ilievski is able to do some housework and gardening. He can mow the lawn with some discomfort, suggesting some improvement since Dr Wallace’s examination.
The Medical Assessor’s findings warrant an assessment for the impact of the lumbar spine condition on Mr Ilievski’s activities of daily living. Paragraph 4.34 says that the diagram should be used “as a guide” (emphasis in original). The assessment is a matter for the clinical judgement of the assessor based on the clinical findings.
Mr Horan stressed the Medical Assessor’s observation that Mr Ilievski had “difficulty performing anal toilet”. In the context of Mr Ilievski’s injuries, that restriction in reaching behind is related to his shoulder injuries. We note that activity was the genesis of his lumbar spine condition, days after the right shoulder injury.
In any event, the Guidelines do not mandate that any impact on ADLs relating to personal hygiene must result in an assessment of 3%. The assessor must balance the worker’s abilities in making the assessment.
In Mr Ilievski’s case, taking his straightforward presentation and reported capacity into account - including that he can do some gardening and home care - the appropriate assessment for the impact of the lumbar spine injury on his ADLs is 2%.
The appropriate assessment for Mr Ilievski’s lumbar spine is therefore 7%. No issue was raised with respect to the Medical Assessor’s deduction of one-fifth under s 323 and it is appropriate in light of the CT scan findings less than six months before. The assessment is therefore 5.6%, rounded up to 6%.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 July 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: | W3057/22 |
Applicant: | Riste Ilievski |
Respondent: | Ezko Property Services (Aust) Pty Ltd |
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 Associate Professor Philip Truskett and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
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) |
| Lumbar spine | 24/04/19 | Chapter 4 Page 24-29 | Chapter 15 Table 15-3 | 7% | 1/5 | (5.6) 6% |
| Right upper extremity | 24/04/19 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 1% | not applicable | 1% |
| Left upper extremity | 24/04/19 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 4% | not applicable | 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
0