Karmach v Coffey Geotechnics Pty Ltd
[2022] NSWPICMP 334
•22 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Karmach v Coffey Geotechnics Pty Ltd [2022] NSWPICMP 334 |
| APPELLANT: | Hassan Karmach |
| RESPONDENT: | Coffee Geotechnic Pty Ltd |
| Appeal Panel: | Member Jane Peacock Medical Assessor Brian John Stephenson Medical Assessor Margaret Gibson |
| DATE OF DECISION: | 22 August 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - The appellant alleged error on the basis that the Medical Assessor (MA) was in error in not examining the thoracis spine and that there was no basis for a deduction under section 323 of the Workers Compensation and Workplace Injury Management Act 1998 in respect of the lumbar spine; Held — the MA erred in failing to examine the thoracic spine; on the basis of this finding of error, a re-examination was conducted; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
Mr Hassan Karmach (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Guru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 January 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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· 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 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 that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel found error for the reasons explained below.
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.
The appellant seeks to admit the following evidence:
(a) statement of the appellant.
The appellant submits that the evidence is relevant to the conduct of the examination by the MA. The appellant submits that the evidence was not available and could not reasonably have been obtained because it is about the assessment by the MA.
The respondent objected to the admission of the statement.
The Appeal Panel determines that the evidence should not be received on the appeal because the MAC is able to be reviewed for demonstrable error without the need to admit additional evidence.
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.
Further medical examination
Dr Margaret Gibson of the Appeal Panel conducted an examination of the worker on 29 July 2022.
The MAC
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.
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 Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
•
Date of injury:
1 March 2008 and
4 March 2008
•
Body parts / systems referred:
Lumbar spine
Thoracic spine
•
Method of assessment:
Whole Person Impairment”
The Medical Assessor 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)
Lumbar spine
01/03/2008
04/03/2008
Page 28
para 4.34
Page 27
Para 4.27
Page 384
Table 15.4
7%
1/10th
6%
Thoracic spine
01/03/2008
04/03/2008
Page 389
Table 15.4
0%
0
0%
Total % WPI (the Combined Table values of all sub-totals)
6%
The worker appealed.
In summary, the appellant submitted that the Medical Assessor has made demonstrable errors and made an assessment on the basis of incorrect criteria. The appellant submitted that the Medical Assessor should have examined the thoracic spine, that the examination of the lumbar spine was inadequate and that a deduction under s 323 was not available on the evidence.
In summary, the respondent submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and accordingly the MAC should be confirmed.
The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
On 1 March 2008 Mr Karmach attended work. He was stationed in a mobile laboratory where his role was to undertake soil testing. On the date of injury, his employer instructed him that he was required to wheelbarrow concrete. He says he undertook this for some 15 and a half hours that day. He started developing pain in his lower back after an hour. He reported pain to his supervisor but he insisted that he continue. He says by the end of the day he could not walk due to pain in his lower back, radiating into his buttocks and legs, as well as pain in his neck and shoulders. He says the pain was such that he was unable to drive home.
On 2 March 2008 he was unable to get out of bed. He said he rang his supervisor and informed him that he was in pain but he was instructed that he needed to go to work.
On 3 March 2008 Mr Karmach said his employer showed up at his doorstep to take him to work. He was having to splint himself on a broom at the work site and ultimately was sent home.
On 4 March his boss again returned to his house to take him to work. He was connecting core drills when he had a further flare of his pain and ultimately was taken to the doctor.
13 years down the track, he continues to have significant pain in his back. He says his legs feel like ‘jelly’. He has pain radiating into his hamstrings and tingling in his legs. He also has pain in the interscapular region and some pain radiating into his right buttock.
· Present treatment:
Mr Karmach said he currently uses Norgesic, meloxicam and paracetamol to manage his pain. He has previously been seen by Pain Management Specialists and had narcotic patches but he no longer uses them. He is not engaged in an exercise based rehabilitation program.
· Present symptoms:
Mr Karmach has pain in his lower back, radiating towards his right buttock and into his hamstrings. He has subjective weakness in his legs. He has pain in his interscapular region.
· Details of any previous or subsequent accidents, injuries or conditions:
Nil.
· General health:
Mr Karmach said he suffered from hay fever and that he took Nexium and vitamins. His documentation describes a long history of schizophrenia and involuntary hospital admissions. He has no allergies.
· Work history including previous work history if relevant:
Nil relevant.
· Social activities/ADL:
Mr Karmach says he tragically lost his wife two months ago and he now has his four sons to look after. He has difficulty with all activities around the house. He previously enjoyed walking and cycling, as well as swimming but is unable to do this. He is unable to tend to his house or garden and this work is done by his sons.”
The Medical Assessor recorded his findings on examination as follows:
“On examination Mr Karmach expressed significant discomfort. He was also teary and emotional. Despite this he moved reasonably freely on and off the examination couch. The was no suggestion of para-vertebral muscle spasm. Romberg’s test was negative. Trendelenburg’s test was normal. Heel-toe stance was normal. Lower limb neurological examination demonstrated symmetrical knee and ankle reflexes with downgoing Babinskis. There was cogwheel weakness to formal muscle testing. Hip range of motion was non-irritable. Straight leg raise was to 70° bilaterally without tension signs. Peripheral pulses were present.”
The Medical Assessor noted the special investigations as follows:
“I was able to review no investigations.
I note a report of a CT scan in the documentation provided from 22 February 2017, the thoracic spine is normal.
I note a report of an MRI of the lumbar spine dated 15 December 2014 noting underlying degenerative disc disease L4/5, L5/S1.”
The Medical Assessor summarised the injuries and diagnosis as follows:
“summary of injuries and diagnoses:
Mr Karmach has sustained an injury at work and subsequently has developed non-specific back pain. Imaging demonstrated some underlying degenerative disc changes in his lumbar spine but no structural pathology in his thoracic spine.
· consistency of presentation
Mr Karmach has been significantly affected by his pain subsequent to his injury for many years and was significantly emotionally affected at the time of assessment.”
The Medical Assessor explained his assessment of impairment as follows:
“Mr Karmach has had significant back pain subsequent to his injury at work. Reports of imaging are suggestive of underlying degenerative disease. Whilst it was not reasonably possible to assess formally assess his range of motion he would be best assessed under AMA 5 page 384 as DRE Lumbar Category II (5% whole person impairment). According to SIRA Guidelines page 28 paragraph 4.34, I assess a further 2% for restrictions of activities of daily living, giving 7% impairment of the lumbar spine.
Due to pain originating in the lumbar spine, is was not reasonably possible to assess range of motion in the thoracic spine but reports of imaging demonstrate no pathology in the thoracic spine. Under AMA 5 page 15.4, I assess Mr Karmach as DRE Thoracic Category I (0% whole person impairment).
Worksheet /actual calculations attached? No.
a. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
With respect to the reports by Dr Patrick dated 15 January 2017, 14 December 2020 and 22 March 2021, I disagree with his assessment of Lumbar DRE Category III. According to SIRA Guidelines page 27 paragraph 4.27, Mr Karmach does not meet the diagnostic criteria for radiculopathy and hence, is best assessed as DRE Category II. I have not assessed Mr Karmach as Thoracic DRE Category II for the reasons described above.
With respect to the reports by Dr Hughes dated 9 March 2021 and 21 September 2021, I agree with the assessment of 7% whole person impairment for the lumbar spine.”
The Medical Assessor erred and made an assessment on the basis of incorrect criteria when he failed to examine the thoracic spine. On the basis of this finding of error, a Medical Assessor member of the Appeal Panel, Dr Gibson was appointed to conduct a re-examination.
Dr Gibson examined the appellant on 29 July 2022 and reported to the Appeal Panel as follows:
“REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: M1-W2784-21
Appellant: Hassan Karmach
Respondent: Coffey Geotechnics Pty Ltd
Date of Determination: 13 January 2022
Examination Conducted By: Dr Margaret Gibson
Date of Examination: 29 July 2022
1. The worker's medical history, where it differs from previous records
I reviewed the history as recorded by Assessor Rob Kuru in the MAC dated 13 January 2022. And clarified with Mr Karmach.
He confirmed he had had no issues with either his thoracic or lumbar spine prior to the 2008 work accident. There had been no prior imaging, medical attendances or any symptoms at all related to either the thoracic or lumbar spine. He suffers from asthma, hay fever and gastroesophageal reflux disease, the latter treated with Nexium tablets. He has chronic schizophrenia, well controlled on risperidone.
He was born in Morocco where he worked in reception and as a concierge in various hotels. He had also worked in retail.
After arriving in Australia in 1993, he obtained employment as a traffic controller. He later worked in a chicken factory in Wagga Wagga, where he was cleaning and driving a forklift over several years. He worked at the Broncos Leagues Club and the Polo Club in Brisbane as a kitchen hand.
On specific questioning, there had been no heavy manual employment prior to commencing work with Coffey Geotechnics in January 2008.
On 1 March 2008 he had been working at a mobile testing facility located onsite at some bridge work on the Hume Highway at Tumbarumba, NSW. He had been asked to use a wheelbarrow to move concrete. He said the wheelbarrow was very heavy to push, and he had never done heavy work like that before. He said he had worked 16.5 hours that day. After about an hour of work he had started to notice low back pain, and despite reporting this to the supervisor he was told to continue. By the time the day’s work was concluded, he had low back spreading to his buttocks, both his legs felt numb and there was pain in the neck and shoulders. He was an hour’s drive from home, and at that time had a manual car. He said he had driven approximately halfway before he had to stop the car to rest for over half an hour before he could continue his journey.
The following day, his back was increasingly uncomfortable. He contacted the supervisor and was advised that he still needed to attend work.
On 3 March 2008, his supervisor arrived at his home to take him to the worksite. His back was so uncomfortable that day, he was forced to lean on a broom handle and then couldn’t even finish the day’s work.
His supervisor returned to his house on 4 March 2008 to take him back to work. Mr Karmach said that day, he was asked to assist a younger worker. This colleague had hammered a spike into the ground to a depth of about 600 mm when the spike became stuck. Mr Karmach explained that the spike was inserted to create a track, it was then pulled out and a measuring device inserted. However, as the spike had got caught in the rock Mr Karmach was asked to pull it out. He said this had taken him about 30 minutes. In the process there was a further flare-up of his low back pain.
He visited a general practitioner Dr Chong and was certified off work for a few days. He had subsequently visited a second general practitioner, Dr Lee Jeffrey, who placed him off work for a week. And then a third general practitioner, Dr John Harris who gave him more time off. Mr Karmach had then never returned to his employment with Coffey nor commenced any other paid work.
He underwent an epidural spinal injection in 2009, but this was of no assistance.
He had physiotherapy, he had taken analgesics, and applied hot packs.
Currently he would take one meloxicam and up to six ibuprofen tablets daily, together with paracetamol as required. His son would apply Voltaren cream to his back.
His present symptoms included upper back pain, which he indicated as starting between his shoulder blades and then spreading laterally. He added that ‘when it hits, it takes my breath away.’ There is pain across the lower back spreading to both buttocks, the back of both thighs both lower legs and into both his feet. He said his whole right leg is constantly numb and there is numbness affecting both feet. At times he has experienced some incontinence. Sleep is regularly disturbed by the low back pain.
Mr Karmach’s wife passed away in December 2021. He lives in a house in Wagga Wagga with his four boys aged 14, 16, 20, and 22 years. He said that his sons do all the household chores. Mr Karmach was independent in ADL, but uses a shower as he has difficulty getting in and out of the bath.
2. Additional history since the original medical assessment certificate was performed.
There was no additional history.
3. Findings on clinical examination.
Mr Karmach appeared uncomfortable during the assessment. He was casually dressed in loose pants and wore thongs on his feet. He weighed 94 Kg.
On examination of the thoracic spine, there was midline and paravertebral tenderness. There was one-third normal rotation bilaterally. There was no asymmetry, muscle spasm or guarding.
On examination of the lumbar spine, there was midline tenderness over the lower lumbar segments extending to the paravertebral regions and spreading towards the buttocks. Forward flexion was to the knees, extension was negligible, lateral flexion one-third normal bilaterally. There was some muscle guarding.
On examination of the lower limbs, he had a slightly stiff gait due to lumbar muscle spasm. He was able to stand on heels and toes with some reluctance due to complaints of low back pain.
Circumferential measurements of the lower limbs were symmetrical with thighs measuring 44 cm and calves 39 cm. Lower limb reflexes were symmetrical and low amplitude but otherwise normal. Straight leg raise was 60 degrees bilaterally with negative neurotension signs but complaints of back pain. There was normal power bilaterally on repetition, after some transient pain related giving way. Sensory changes were in a glove and stocking distribution, affecting the both lower limbs in a circumferential fashion. There were no radicular sensory changes.
4. Results of any additional investigations to original medical assessment certificate.
There were no additional investigations.
5. Opinion
Mr Karmach is a 56-year-old man who sustained a work-related back injury on 1 March 2008 with exacerbation of symptoms several days later, on 4 March 2008. As a result, he has been unable to make any sustained return to paid employment.
Impairment
Lumbar spine
DRE Lumbar Category II, thus 5% whole person impairment.
Based on Chapter 4 and Table 4.1 Workcover Guides and AMA 5, Table 15-3, p384 there were clinical findings, including muscle guarding.
Performance of ADL has been affected, in relation to both indoor and outdoor tasks, therefore 2% WPI is added. Thus, lumbar spine impairment is 7%WPI.
There was no clinical evidence of radiculopathy and therefore no grounds to place Mr Karmach in a higher category.
Thoracic spine
DRE Thoracic category 1, 0% whole person impairment.
Based on Chapter 4 and Table 4.1 Workcover Guides and AMA 5, Table 15-4, p389 there were no clinical findings.
There was no past history of spinal problems prior to accident of 2008, nor any imaging reflecting prior pathology and therefore no basis for deduction.
Therefore lumbar spine 7% whole person impairment, thoracic spine 0% whole person impairment, total whole person impairment 7%.
The Appeal Panel adopts the findings and the report of Dr Gibson.
On this basis, the Appeal Panel will revoke the MAC and issue a new MAC 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) | |
| Lumbar spine | 01/03/2008 04/03/2008 | Page 28 para 4.34 Page 27 Para 4.27 | Page 384 Table 15.4 | 7% | 0 | 7% | |
| Thoracic spine | 01/03/2008 04/03/2008 | Page 389 Table 15.4 | 0% | 0 | 0% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 7% | ||||||
For these reasons, the Appeal Panel has determined that the MAC issued on 13 January 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: | W2784/21 |
Applicant: | Hassan Karmach |
Respondent: | Coffee Geotechnic 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 Dr Robert Kuru 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 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) |
| Lumbar spine | 1/03/2008 4/03/2008 | Page 28 Paragraph 4.34 Page 27 Paragraph 4.27 | Page 384 Table 15.4 | 7% | 0 | 7% |
| Thoracic spine | 1/03/2008 4/03/2008 | Page 389 Table 15.4 | 0% | 0 | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0