Jarvis v State of New South Wales (Northern NSW Local Health District)
[2021] NSWPICMP 175
•20 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Jarvis v State of New South Wales (Northern NSW Local Health District) [2021] NSWPICMP 175 |
| APPELLANT: | Maxine Mary Jarvis |
| RESPONDENT: | State of New South Wales (Northern NSW Local Health District) |
| APPEAL PANEL: | Member Brett Batchelor Dr Drew Dixon Dr David Crocker |
| DATE OF DECISION: | 20 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by worker on the grounds that the Medical Assessor (MA) had made his assessment on the basis of incorrect criteria and that the Medical Assessment Certificate (MAC) contains a demonstrable error; the worker suffered injury to the lumbar spine and underwent surgery for acute caudal equina syndrome; she suffered neurologic impairment of the bladder, neurologic anorectal impairment, and neurologic sexual impairment; the appellant worker took issue with the assessment in respect of the bladder, bowel and sexual impairment, and with the manner of calculation of overall whole person impairment pursuant to the Combined Values Chart; issue was also taken with the section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction from impairment assessed in respect of injury to the lumbar spine; finding the section 323 of the 1998 Act deduction in respect of assessment of WPI as a result of injury to the lumbar spine was correct; Held - finding that the assessments in respect of the bladder, bowel and sexual function were open to the MA and should be confirmed; finding of error in the calculation of total WPI; MAC revoked and new certificate issued. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 31 May 2021 Maxine Mary Jarvis (the appellant/Ms Jarvis) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin (Sid) O’Toole, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 May 2021.
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,
· 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 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
The appellant suffered an injury to her lumbar spine on 4 April 1993 while working as a registered nurse at the Corakai Hospital. She was assisting a stroke patient, who weighed approximately 100 kg, up in a bed when the patient suddenly let go of the overhead bar causing the appellant to wrench her back. She experienced immediate pain down her left leg to her knee and in her lower back, and developed numbness in her buttocks, perineum and perianal region. Ms Jarvis suffered urinary and faecal incontinence.
The appellant was referred to Dr David Cull, neurosurgeon, who performed a L6/S1 microdiscectomy for acute cauda equina syndrome on 5 May 1993. It was noted that
Ms Jarvis has six lumbar vertebrae, a not uncommon finding.Following the surgery, the appellant did not undergo rehabilitation as she was keen to get back to work. She still had altered sensation in her perineum, sciatic leg pain in her left leg, and spasms in both legs in addition to back pain. Ms Jarvis was able to manually evacuate her bowels and had learned to increase intra-abdominal pressure to evacuate her bladder. She was still troubled by incontinence. She had to wear an incontinence pad and had issues with decreased anal sphincter function. No further treatment was recommended at the time.
The appellant was managed through the Royal Brisbane and Women’s Hospital surgical unit for her ongoing bowel issues, and on 20 November 2003 underwent a STAMP procedure and transanal mucosectomy. This provided good initial response with cessation of incontinence of solid, liquid or gas. Ms Jarvis was discharged from care at that time.
In 2018 following an episode of significant back pain Ms Jarvis was referred for a CT scan and then to the spinal clinic at the Royal Brisbane and Women’s Hospital, under
Dr Norman Me, spinal surgeon. Surgery, in the form of a fusion, was declined and the appellant attended a pain clinic on two occasions in around November 2018 before it was shut down during COVID-19.The appellant’s present treatment consists of the use of heat packs, massage, acupuncture, and medication in the form of Valium for her restless legs, Panadeine Forte five times a week and Panadeine, two tablets in the morning.
Ms Jarvis states that she continues to suffer bowel incontinence, urinary incontinence, and loss of sexual function due to her pain and incontinence. She has an episode of bowel incontinence at least daily. She wears an incontinence pad for her bowel and bladder. Episodes of incontinence at work are embarrassing.
The appellant continues to work at the Royal Children’s Hospital in Brisbane, having found that working with geriatric patients caused her too much backache.
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, although the appellant submits that she be re-examined by a Medical Assessor who is a member of the Appeal Panel, there were no submissions made in support of such an examination and the Panel considers that there is sufficient material in the appeal papers on which to base its decision.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor 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 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 have been considered by the Appeal Panel.
Appellant
In summary, the appellant challenges the findings of the Medical Assessor, Dr O’Toole, under Table 15-6 on p 396 of AMA 5, submitting that the assessment was made on the basis of incorrect criteria and contains a demonstrable error.
The appellant sets out the history recorded by Dr O’Toole in relation to bladder control, bowel control, loss of sexual function and episodes of incontinence at work. The appellant submits that, in respect of impairment of the bladder, Dr O’Toole has given no reasons, or alternatively no adequate reasons, as to why he allocated 4% whole person impairment (WPI) in Class 1 (range of 1%-9%) of Table 15-6 d. It is submitted that such an assessment is different from the history recorded by him.
The appellant also notes that Dr O’Toole in reaching his determination has taken into account the impact of Activities of Daily Living (ADLs), when such impact is not identified as a relevant consideration in [15.7] of AMA 5 (p 395) with respect to neurological impairment of the bladder. It is identified as a factor in determining a rating for impairment of the lumbar spine, and for impairment of the upper extremities in accordance with Table 15-6 items a. and b. but is irrelevant to assessing neurological impairment of the bladder.
The appellant submits that, having regard to the history she gave to Dr O’Toole that she suffered from incontinence and had to “place pressure on her abdomen to evacuate the bladder”, she should have been assessed in Class 2 (range 10%-24%) of Table 15-6 d. The descriptor for that Class is “Individual has good bladder reflex activity, limited capacity, and intermittent emptying without voluntary control”. Alternatively, the appellant submits that Class 3 (range 25%-39%) of Table 15-6, the descriptor for which is “Individual has poor bladder reflex activity, intermittent dribbling and no voluntary control”, would be justified.
In respect of impairment of the bowel the appellant submits that Dr O’Toole has given no reasons, or alternatively no adequate reasons, as to why he allocated 4% WPI under Class 1 of Table 15-6 e, the descriptor for which is “Individual has reflex regulation but only limited voluntary control.” The appellant submits that such a classification is not appropriate having regard to the history recorded by Dr O’Toole.
The appellant submits that the assessment of Dr O’Toole is at odds with example 15-18 of AMA 5 (p 398) of a 54-year-old woman with cauda equina syndrome resulting in decreased rectal tone and occasional (emphasis in submissions) bowel incontinence. In that example the rating for anorectal impairment was under Class 2, of 20% WPI. Ms Jarvis has described in her case “an episode of bowel incontinence at least daily” (emphasis in submissions) which is not a history of occasional bowel incontinence. Proper consideration of example 15-18 in AMA 5, having regard to the appellant’s symptoms, would have resulted in an assessment in excess of 20% WPI.
The appellant repeats her submission that Dr O’Toole has incorrectly taken into account the impact on ADLs, which are irrelevant to assess neurological anorectal impairment.
The appellant submits that, in circumstances of daily incontinence, decreased anal sphincter function confirmed by nerve conduction studies and having to manually evacuate the bowels, a Class 2 assessment at least would be required. A Class 3 assessment would also be justified.
The appellant further submits that Dr O’Toole has erred in making a deduction for pre-existing impairment where there is no evidence that she was having any treatment or difficulties at the time of the incident, nor is there any indication about why the presence of a sixth vertebra of itself would inevitably be symptomatic. Further, degenerative change to date would be inevitable in light of the injury sustained.
The appellant relies of what was said in Ballas v Department of Education[1] in submitting that she has an arguable case that should be referred to an appeal panel.
Respondent
[1] [2020] NSWCA 86 (Ballas).
In reply, the respondent submits that the appellant’s submission that the history obtained by Dr O’Toole includes that Ms Jarvis has to “place pressure on her abdomen to evacuate the bladder” does not appear within the MAC, but the history recorded is that she has “learned to increase intra-abdominal pressure to evacuate her bladder”.
The respondent refers to the descriptors of the Class 1 and Class 2 ratings of the Criteria for Rating Neurologic Impairment of the Bladder and submits that the determinative factor in terms of whether Class 1 or Class 2 should be preferred by the Medical Assessor is whether the appellant is able to exert any voluntary control.
The respondent therefore submits that the Class 1 rating would have been the appropriate assessment by the Medical Assessor, and that as there has been no demonstrable error in this assessment, or that the Medical Assessor has not made this assessment on the basis of incorrect criteria, the Appeal Panel has no jurisdiction to interfere with the assessment of
Dr O’Toole in this regard.In respect of the assessment of Dr O’Toole in terms of neurological anorectal impairment, the respondent notes the descriptors for each class. The respondent again submits that the determinative factor as to whether Class 1 or Class 2 would be appropriate is the presence of any voluntary control. The respondent submits that whilst the appellant has issues in respect of incontinence, there is no indication that she is unable to exert voluntary control over her bowels. As such, it is submitted that Dr O’Toole would be unable to provide a Class 2 rating, and the Class 1 rating would be correct.
The respondent notes that both Dr English, on whose assessment the appellant initially relied in making her claim for lump sum compensation, and Dr Miller, whose report was obtained in response to the claim, are both in agreement that the correct assessment in terms of the bowel impairment would be under Class 1.
It is therefore submitted that there has been no demonstrable error in this assessment and that Dr O’Toole has not made his assessment on the basis of incorrect criteria, and that the Appeal Panel has no jurisdiction to interfere with his assessment.
The respondent concedes that ADLs are not a relevant consideration in the assessment of the bladder and bowel but submits that this consideration has not affected the assessment itself and therefore should not form the basis of any successful appeal.
The respondent submits that Dr O’Toole was clearly correct to take into account a
pre-existing condition, noting the indication within the radiological evidence of underlying degenerative conditions in respect of the lumbar spine.The respondent submits that the MAC appears to contain some discrepancies in terms of the calculation of total WPI. On p 6 of the MAC Dr O’Toole states:
“When combining the percentage from spinal dysfunction (16%) with that from bladder dysfunction (4%), bowel dysfunction (4%) and sexual dysfunction (3%), the total becomes 27% Whole Person Impairment.”[2]
[2] Appeal papers p 25.
The respondent submits that this calculation does not appear to have any regard to the Combined Values Chart in AMA 5. The values ought to have been combined as follows:
(a) 16% + 4% = 19%;
(b) 19% + 4% = 22%;
(c) 22% + 3% = 24%.
After a 10% deduction pursuant to s 323 of the 1998 Act of 2.4%, the final correct figure would be rounded to 22% WPI and not the 24% WPI calculated by Dr O’Toole.
The respondent submits that the MAC of Dr O’Toole ought to be confirmed, save for the discrepancies relating to the combination of the assessments noted in [38] above.
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. An Appeal Panel is limited to determining error as alleged by the appellant but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. Relevant case law includes Siddik v Workcover Authority of NSW[3] and NSW Police Force v Registrarof the Workers Compensation Commission of New South Wales[4].
[3] [2008] NSWCA 116.
[4] [2013] NSWCA 1792.
For an appeal to be successful pursuant to s 327(3)(d) of the 1998 Act, that is the MAC contains a demonstrable error, there must be an error of fact or law which is readily apparent on the face of the MAC (NSW Police Force v Fleming[5]; Merza v Registrar of the Workers Compensation Commission[6]).
[5] [2010] NSWSC 216.
[6] [2006] NSWSC 939.
In Campbelltown City Council v Vegan[7] 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.
Assessment of the lumbar spine
[7] [2006] NSWCA 284
The Medical Assessor, Dr O’Toole, assessed the appellant’s lumbar spine in accordance with DRE Lumbar Category III under Table 15-3 on p 384 of AMA 5. This results in an assessment of 10% WPI and an additional 2% WPI for the impact of activities of daily living (ADL) pursuant to [4.33] and [4.34] of the Guidelines.
Dr O’Toole than applied Table 4.2 Modifiers on p 29 of the Guidelines which results in an additional 5% WPI. When this is combined with the 12% referred to in [43] above using the Combined Values Chart, 16% WPI is obtained. Neither party takes issue with this assessment.
The Appeal Panel agrees with the appellant’s submissions that Dr O’Toole has incorrectly referred to the impact of ADLs when assessing neurologic impairment of the bladder and neurologic anorectal impairment. The Panel also notes that Dr O’Toole has referred to the impact of ADLs when assessing neurologic sexual impairment. The respondent acknowledges that ADLs are not a relevant consideration when assessing the bladder and bowel but submits that this consideration has not affected the assessment itself and thus should not be the basis of any successful appeal.
The Appeal Panel agrees with what the respondent submits about the incorrect reference by Dr O’Toole to the impact of ADLs when assessing the bladder and bowel. That is while they are not a relevant consideration, being only relevant to the assessment of WPI of the lumbar spine, the reference to ADLs by Dr O’Toole has not affected his assessment. Dr O’Toole assessed Ms Jarvis in respect of neurologic impairment of the bladder, neurologic anorectal impairment, and neurologic sexual impairment pursuant to Table 15-6 d. e. and f. on p 397 of AMA 5. Those assessments are referred to hereunder.
Deduction for pre-existing injury or condition
The full text of the appellant’s only submission on this issue is as follows:
“Further, it is submitted that the Assessor has erred in making a deduction for a pre-existing impairment where there was no evidence that she was having any treatment or difficulties at the time of the incident, nor is there any indication about why the presence of a 6th vertebrae of itself would inevitably be symptomatic. Further, degenerative change to date would be inevitable in light of the injury sustained.”
The full text of the respondent’s only submission on this issue is as follows:
“In addition, it is submitted that the MA was clearly correct to take into account a pre-existing condition, noting the indication within the radiological evidence of underlying degenerative conditions in respect of the lumbar spine.”
The authority often cited on the construction and application of s 323 of the 1998 Act is Cole v Wenaline Pty Limited[8], a decision of Schmidt J in the Supreme Court of New South Wales. At [30] and [34] her Honour said the following in respect of the issue of whether or not a deduction should be made, in that case, for a pre-existing injury:
“30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”
…
34….Section 323 requires that a conclusion be reached as to whether or not any proportion of permanent impairment assessed resulted from an earlier injury, pre-existing condition or abnormality. In a case such as this, that conclusion must be reached on the evidence led as to the actual consequences of the earlier and later injuries, unless the assumption provided in s 323(2) applies.”
[8] [2010] NSWSC 78.
More recently in Vanini v Worlswide Demolitions Pty Ltd[9] the Court of Appeal said at [90]-[92] when addressing the issue of the manner in which an Appeal Panel deals with a s 323 deduction:
“90. An Appeal Panel performing the function of administrative review by way of a rehearing is confronted with similar issues when correcting error, particularly when the ground of appeal is demonstrable error contained in the certificate of the medical specialist. It is not necessary to consider how the reasoning of the approved medical specialist may be shown to wrong in every respect. In this case, the Panel was considering the reasoning of the medical specialist on the question of causation arising under s 323. The relevant issue was whether any proportion of the impairment was due to any previous injury, or pre-existing condition or abnormality? If so, what was that proportion?
91. The first question involved an assessment by the Panel, substantially of fact by reference to the evidence, although in part informed by the exercise of a clinical judgment. Such an assessment may be characterised as an evaluative judgment or conclusion based on findings of fact. Nonetheless, the legal criterion applied to reach that conclusion on causation demands a unique outcome, rather than tolerates a range of outcomes. Accordingly the reasoning and finding of the medical specialist attracts the correctness standard of review by a Panel.
92. The position may be different in relation to the second question. A finding as to the proportion of permanent impairment due to previous injury, pre-existing condition or abnormality involves matters of degree and impression. The applicable standard of the “proportion” of contributory contribution under s 323 permits some latitude of opinion such as to admit of a range of legally permissible outcomes. That is not to say that such a conclusion is necessarily beyond review by an Appeal Panel on the ground of demonstrable error. However, the resolution of that question should be left to a case where it is dispositive.” (emphasis in original)
[9] [2018] NSWCA 324.
The “similar issues when correcting error” referred to by the Court of Appeal in [90] of Vannini was a reference to the case of an appeal by way of rehearing before an appellate court.
Dr O’Toole gives his reasons for making a one tenth deduction from the total assessment made by him of 27% WPI in the certificate on p 8 of the MAC, at [11] thereof (p 7 of the MAC[10]), as follows:
[10] Appeal papers p 26.
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Ms Jarvis has pre-existing degeneration of the lumbar spine that originates as a consequence of her age and her congenital sixth vertebra.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)The pre-existing degeneration will be materially contributing the discomfort in Ms Jarvis’ lumbar region.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence)”
Dr English does not make any deduction for pre-existing condition in his report dated 15 December 2019.
Dr Miller makes an assessment of 15% WPI for the lumbar spine in his report dated 26 July 2020 which he reduces by one tenth, resulting in 13.5% WPI rounded up to 14% WPI. In that report he reviews the radiological evidence and states at [10] in answer to enquiries put to him:
“The work incident on the 4th of April 1993 more likely than not caused am [sic] L5/ S1 disc protrusion with central extensions to the left resulting in L5 /S1 canal stenosis . I therefore would consider that the work incident caused an aggravation and deterioration of a pre-existing condition.
I believe that the work incident was totally responsible for her current condition.”[11]
[11] Appeal papers p 286.
At [11] Dr Miller said:
“I believe that the aggravating effects of the work injury persist
I do not believe her ongoing complaints are attributable to non-work related injury or pre-existing condition”
Notwithstanding these comments of Dr Miller who, as noted, has made a deduction for pre-existing condition. The Appeal Panel agrees with the finding of Dr O’Toole that such a deduction should be made. This deduction should be from the assessment of WPI in respect of the lumbar spine only and not from the WPI assessment which includes assessments in respect of the bladder, anorectal and sexual impairment. This is what Dr Miller has done and is reflected in the new MAC attached hereto.
The Panel is of the view that, having regard to:
(a) the appellant’s history of hurting her back in 1992 while lifting a patient when working at Ballina Hospital as a result of which she developed sciatica which was treated and settled;
(b) the back strain suffered in a motor vehicle accident in 1989 recorded by Dr Miller in his report dated 8 August 2008[12], and to
(c) the radiological investigations of her lumbar spine,
there was pre-existing condition in the lumbar spine which contributes to the current level of WPI assessed and is difficult to determine. Therefore s 323(2) applies and a one tenth deduction should be made from the WPI assessed in respect of the lumbar spine.
[12] Appeal papers p 273.
The Appeal Panel therefore finds that the final degree of impairment in respect of the lumbar spine is 16% WPI less 1/10th thereof, resulting in a figure of 14.4% which is rounded down to 14% WPI. This figure is to be combined with the assessments in respect of neurologic impairment of the bladder, anorectal impairment, and neurologic sexual impairment.
Neurologic impairment of the bladder and anorectal impairment
The appellant submits that Dr O’Toole has given no reasons, or alternatively inadequate reasons, as to why he selected a class of impairment in respect of neurologic impairment of the bladder and neurologic anorectal impairment, which appears to be different from the history obtained by him in each case. The Appeal Panel notes that the MAC must be read as a whole, and that it is not the function of the Panel to go through the document with a fine toothcomb in an attempt to find error. Dr O’Toole has described Ms Jarvis’ present symptoms in the MAC, in respect of bowel incontinence, urinary incontinence, and loss of sexual function due to pain and incontinence. He also describes her “Social activities/ADL” and “Household duties”. As noted above, ADLs in the sense in which that term is used in [4.33] and [4.34] of the Guides, is not a factor in the determination of permanent impairment as a result of neurologic impairment but is in respect of the assessment of permanent impairment as a result of injury to the lumbar spine. Dr O’Toole does however describe the appellant’s abilities or restrictions in respect of self-care, household duties and hobbies.
The respondent submits that the question of whether Ms Jarvis is able to exert any voluntary control over her bladder and bowels is determinative as to whether she should be classified in Class 1 or 2 of Table 15-6 d. or e. In placing the appellant in Class 1 in each case,
Dr O’Toole refers to the frequency and intensity of symptoms in respect of neurologic impairment of the bladder and neurologic anorectal impairment.[13] He notes that Ms Jarvis is able to manually evacuate her bowels and has learned to increase intra-abdominal pressure to evacuate her bladder.[13] Appeal papers p 25.
Class 1 for neurologic impairment of the bladder contains the following criteria:
“Individual has some degree of voluntary control but is impaired by urgency or intermittent incontinence”
Class 1 for neurologic anorectal impairment contains the following criteria:
“Individual has reflex regulation but only involuntary control”
Class 2 for neurologic impairment of the bladder contains the following criteria:
“Individual has good bladder reflex activity, limited capacity, and intermittent emptying without voluntary control.”
Class 2 for neurologic anorectal impairment contains the following criteria:
“Individual has reflex regulation but no voluntary control”
In Class 2 in each case, the element of the lack of voluntary control is present. The Appeal Panel is of the view that for the appellant in this case to be placed in Class 2, there had to be a complete loss of voluntary control. That is not the case with Ms Jarvis. Both in respect of the bladder and the bowel she does have a degree of voluntary control.
The Appeal Panel notes that both Dr English, on whose report dated 15 December 2019[14] the appellant relies in support of her claim, and Dr Miller on whose report dated 26 July 2020 the respondent relies, place the appellant in Class 1 in respect of anorectal impairment.
Dr Miller comments on Dr English’s assessment, noting that the history taken by him is consistent with the history he took and other specialists in reports accompanying documents. Dr Miller agrees with the findings on examination of Dr English, his diagnosis and opinion on causation, but not with his assessment of the level of impairment. In his earlier report dated 8 August 2008[15] Dr Miller assessed the appellant with reference to Tables 13-19, 13-20 and 13-21 on pp 341-2 of AMA 5. He placed the appellant in Class 1 for bladder impairment because she had some degree of voluntary control of her bladder but was impaired by urgency or intermittent incontinence. This resulted in an assessment of 2% WPI. The assessment for anorectal impairment was 0% WPI as there was voluntary control of the bowel. Sexual impairment was assessed at 2% WPI (sexual function possible with a lack of awareness or excitement or lubrication).[14] Appeal papers p 37.
[15] Appeal papers p 273.
Dr O’Toole refers to the assessment of 26% WPI in Dr Miller’s report dated 26 July 2020, noting that it closely approximates his assessment. Dr O’Toole refers to the assessment of Dr English in detail, including the assessment of the lumbar spine. The total WPI assessed by Dr English was 48%. Dr O’Toole says that Dr English “…has not indicated how the determination of 15% Whole Person Impairment for each of the corticospinal tract impairments has been made”.
The Appeal Panel does not accept the submission of the appellant that Dr O’Toole has given no reasons, or alternatively no adequate reasons, for his assessment of impairment of the bladder and the bowel. Reading the MAC as a whole, the Panel is of the view that adequate reasons have been provided for his assessments.
Neurologic sexual impairment
Neither the appellant nor the respondent has made specific submissions in respect of the assessment of Dr O’Toole for neurologic sexual impairment. Classes 1 and 2 of Table [15-6 f.] of AMA 5 set out the following criteria:
Class 1
“Sexual functioning is possible, but with difficulty of erection or ejaculation in men or lack of awareness, excitement, or lubrication in either sex”
Class 2
“Reflex sexual functioning is possible, but there is no awareness”
Dr O’Toole records in respect of this impairment:
“In accordance with Section f. Criteria for Rating Neurologic Sexual
Impairment, there is a Class 1 categorisation and it is determined that
there is 3% Whole Person Impairment. This is based upon the impact
on Activities of Daily Living (ADLs) and the frequency and intensity of
the symptoms. It is noted that Ms Jarvis was more concerned about
the embarrassment that arose from anorectal and bladder dysfunctionthan a direct loss of sexual function.”[16]
[16] Appeal papers p 25.
The comments noted above at [45]-[46] in respect of the direct relevance of ADLs when assessing this impairment are apposite. Nevertheless, Dr O’Toole does note the embarrassment expressed by Ms Jarvis that arose from anorectal and bladder dysfunction rather than concern about loss of sexual function.
Dr O’Toole is correct in his notation that Dr English has not indicated how the determination was made by him in respect of this impairment. Dr English places Ms Jarvis in Class 2, assessing 15% WPI. Dr Miller assesses 9% WPI, placing the appellant in Class 1.
Dr O’Toole assesses 3% WPI, placing the appellant in the same class.For the foregoing reasons, the Panel does not find error on the part of Dr O’Toole in placing the appellant in Class 1 for each of the criteria ratings for neurologic impairment of the bladder, anorectal impairment, and sexual impairment. Similarly, the Panel finds that once Class 1 was selected by Dr O’Toole, correctly in the view of the Panel, it was a matter of his clinical judgement to assess a percentage WPI within that class having regard to the documents he had before him, the history provided by the appellant and her presentation on the day.
The Panel finds that in respect of neurologic impairment of the bladder, the appellant has suffered 4% WPI, in respect of neurologic anorectal impairment 4% WPI and in respect of neurologic sexual impairment 3% WPI.
Demonstrable error/incorrect criteria
The appellant submits that there is an error on the face of the record, which in accordance with Ballas, can amount to a demonstrable error, and a finding that the assessment was made on the basis of incorrect criteria. Ballas was a case in which the worker claimed lump sum compensation for permanent impairment as a result of psychological injury. The Approved Medical Specialist (AMS) in that case assessed the worker in accordance with the psychiatric impairment rating scale (PIRS) (p 56 of the Guidelines). The Delegate of the Registrar of the Workers Compensation Commission in the exercise of the ‘gatekeeper’ role imposed by s 327(4) of the 1998 Act, did not allow an appeal to proceed to a Medical Appeal Panel, as she was not satisfied that at least one of the grounds for appeal specified in subsection (3) of s 327 had been made out. The worker took proceedings for judicial review of this decision pursuant to s 69 of the Supreme Court Act 1970, where at first instance she was unsuccessful. The Court of Appeal in allowing an appeal from the decision of the primary judge held that he erred in failing to hold that the Delegate’s decision was infected by jurisdictional error. It held that the Delegate had erred in her application of s 327(3) of the 1998 Act, had conflated the “scales” and “classes” in the Guidelines, and had misconstrued the nature of the error that Ms Ballas had identified as “demonstrable error” within the meaning of s 327(3)(d) of the 1998 Act.
In the course it its decision, the Court of Appeal examined the different PIRS scales in Table 11.1 of the Guidelines, and the classes of impairment within each scale with reference to the evidence in the case. However, the primary focus of the case was whether the Delegate of the Registrar had exceeded her function when she assessed the merits of the proposed appeal. It was held that she had. Her role was to assess whether, on the face of the documents in question the grounds of appeal were within the provisions of s 327 of the 1998 Act. It was held that they clearly were.
The appellant submits that Ballas is authority for the proposition that choosing a wrong class of impairment can amount to a demonstrable error, and that an assessment has been made on the basis of incorrect criteria. Without conceding that was in fact what was held in that case, the Appeal Panel finds that there has been no error on the part of Dr O’Toole in the classification of Ms Jarvis for neurologic impairment of the bladder, neurologic anorectal impairment, or neurologic sexual impairment in accordance with Table 15-6 of AMA5.
Calculation of whole person impairment
The Appeal Panel accepts the respondent’s submission that Dr O’Toole has made an error in his calculation of total WPI. The WPI assessments of the lumbar spine, neurologic impairment of the bladder, neurologic anorectal impairment and neurologic sexual impairment should be combined using the Combined Values Chart of AMA 5. When this is done, a final figure of 22% WPI results, calculated as follows:
(a) 14% + 4% = 17%;
(b) 17% + 4% = 20%;
(c) 20% + 3% = 22%.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 May 2021 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
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 Robin (Sid) O’Toole 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 | 4 April 1993 | Chapter 4 [4.33], [4.34],[4.37] & Table 4.2, pp 24-29. | Table 15.3 p 384 AMA 5 | 16% | 1/10th | 14.4% rounded down to 14%. |
| Bladder impairment | 4 April 1993 | 4% | Table 15-6 d. AMA 5 p 397 | 4% | 0% | 4% |
| Anorectal impairment | 4 April 1993 | 4% | Table 15-6 e. AMA 5 p 397. | 4% | 0% | 4% |
| Sexual impairment | 3 April 1993 | 3% | Table 15-6 f. AMA 5 p 397. | 3% | 0% | 3% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
Brett Batchelor
Member
Dr David Dixon
Medical Assessor
Dr David Crocker
Medical Assessor
20 September 2021
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