Kay v Muller & Edwards trading as the Coolah Black Stump Inn
[2023] NSWPICMP 524
•19 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kay v Muller & Edwards trading as the Coolah Black Stump Inn [2023] NSWPICMP 524 |
| APPELLANT: | Nicholas Kay |
| RESPONDENT: | Muller & Edwards trading as the Coolah Black Stump Inn |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 19 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor erred in failing to apply the lumbar spine modifier, where there was ample evidence of radiculopathy such that the lumbar spine modifier of 3% should have been applied; re-examination arranged; on re-examination the Panel found clear evidence of radiculopathy; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 June 2023 Nicholas Kay (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Long, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 May 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because we determined that the Medical Assessor erred in failing to provide full details of his findings on neurological examination. In addition, the appellant submits that the assessment of 0% WPI in respect of scarring was incorrect.
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
Medical Assessor Tommasino Mastroianni of the Appeal Panel conducted an examination of the worker on 11 October 2023 and reported to the Appeal Panel.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that there was ample evidence of radiculopathy such that the lumbar spine modifier of 3% should have been applied.
In reply, the respondent submits that no errors were made.
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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the lumbar spine and scarring resulting from an injury on 6 March 2020.
The Medical Assessor obtained the following history:
“At work on 6 March 2020, as he was waiting on tables, he slipped on a wet floor landing heavily on his buttocks, lower and upper part of his back. The pain in the lumbar back was radiating to the left buttock and left leg and less so to the right buttock and leg. He saw his own doctor on the following day and was treated conservatively. A CT scan of the head and lumbar spine were organised…
Mr Kay was referred to a neurosurgeon, Associate Professor John Laidlaw, who confirmed a right lateral L4/5 disc protrusion.
27 October 2020, an operation was performed by Professor Laidlaw in the form of decompression of the right lateral L4/5 disc. The surgery successfully relieved the pain in his leg, although he continued to have numbness, particularly on the lateral aspect of the left thigh. He continued to have pain in the lumbar back, spreading into the right and left buttocks. A further lumbar epidural spinal injection did not relieve this symptom…
Because of his persisting back pain, Mr Kay was referred to a pain clinic in Berwick and then to Advance Healthcare, where he was assessed and treated by a neurosurgeon, physiotherapy, psychologist, as well as a ‘wellness group.’”
After documenting Mr Kay’s present treatment regime, the Medical Assessor then noted present symptoms as follows:
“● Lumbar Pain: Situated in the mid and lower lumbar spine radiating to the right and left buttocks, but more severe in the right buttock. The pain is continuous 6/10 in severity and greatly aggravated by physical activity and lifting. It is aggravated by coughing and sneezing.
· No pain in the legs, but numbness over the lateral aspect of the left thigh, lower leg and lateral aspect of the left foot, with an ongoing cold sensation in this region. This numbness has been present since before his spinal operation…”
The Medical Assessor then set out details of the impact of his injury on his social activities and activities of daily living (ADL’s) as follows:
“Mr Kay is now single. His parents are deceased He has a son aged 23 years with a child who lives in nearby Sale.
Mr Kay lives in a single storey rented accommodation. Any gardening is undertaken by neighbours, who also live in the complex. He continues to receive worker’s compensation payments.
·Walking: Limited to 200 metres for 30 minutes and then because of back discomfort, it is necessary to lie down or recline. Running is impossible.
·Standing: Up to 15 minutes, provided he is able to move around or lean on objects. Wearing his lumbar belt facilitates these activities.
·Bending: Very limited and he requires assistance with his shoes, socks and trousers, as well as cutting of his toenails. It is necessary for him to sit for these activities.
·Kneeling: He avoids kneeling because this aggravates his symptoms.
·Squatting: Limited.
·Sitting: He finds a recliner more comfortable than erect chairs.
·Lifting: Has been limited to 5 kg, but the physiotherapist has reduced this further to 1 kg.
·Stairs: He is not required to negotiate stairs, but slopes and uneven ground increase the “pressure” on his back, moreso when going uphill.
·Driving: Although he has a car and licence, he has stopped driving because of pain and the medication he takes.
·Cooking: He undertakes his own limited cooking and dishwashing, making use of the dishwasher.
·Home Activities: He is assisted by friends with other cleaning about the house. Both showering and toileting are undertaken with care. He washes clothes, but is unable to elevate his arms to hang them out to dry, this aggravates his back pain. He makes use of a drying rack.
·Shopping: He uses “home delivery”.
·Recreational Restrictions Since Injury: Prior to the injury, he enjoyed swimming, fishing, camping and hiking, but these are no longer possible. He keeps tropical fish. His dog ‘walks itself’”.
Findings on examination were noted as follows:
LumbarSpine:
4 cm vertical operation scar with occasional associated
suture scarring.
The scar was of varying width up to 4 mm and pale.
Mr Kay indicated the scar did not worry him.
It was considered to be an uncomplicated surgical scar
(seephotograph).
Right paraspinal muscles were wasted, compared with
thoseontheleft.
Some muscular guarding with movement.
Flexionwas60%ofnormal.
Extensionwas50%ofnormal.
Lateral angulation left and right each 50% of normal.
Neurological examination of the lower limbs revealed
No significant differential muscular wasting or weakness…”
The Medical Assessor summarised the injuries and diagnoses as follows:
“As a result of an injury at work on 6 March 2020, Mr Nicholas Kay, who is now 47 years of age, sustained an injury to his lumbar back. This caused localised pain in his back and radicular symptoms in the left and right legs. A prolapse of the right L4/5 intervertebral disc was diagnosed and on 27 October 2020, microdiscectomy with decompression was undertaken. This relieved the symptoms of radiculopathy in the right and left legs, but Mr Kay continued to have pain in his back and across his buttocks. There was persisting numbness over the lateral aspect of the left leg.
Further lumbar spinal epidural injections have been ineffective and constant lumbar back pain requires ongoing treatment and has prevented him from returning to any effective employment.
As a result of his injuries and subsequent events, Mr Kay has also developed depression and anxiety, for which he is receiving treatment.
Examination revealed restriction of movement of the lumbar back. There was some restriction of right straight leg raising causing pain in the right buttock, but not in the right thigh, which was considered a negative straight leg raising test. There was some diminished sensation over the lateral aspect of the left leg. There was no history of pre- existing symptoms or injury to his lumbar back, prior to the work injury of 6 March 2020. He does not have radiculopathy as defined in the Guidelines, Page 27; 4.27; he has difficulty with home care; Mr Kay has had a spinal operation with persisting pain, but the radiculopathy as defined has resolved.”
The Medical Assessor assessed 13% WPI.
He added:
“In making that assessment I have taken account of the following matters:-
Spinal surgery with ongoing back pain, but without radiculopathy.
Modifiers for DRE Categories following surgery, indicates:
‘spinal surgery with residual symptoms and radiculopathy…’(My underlining)
Although he has residual symptoms, he does not have radiculopathy as defined and therefore, the allocated lumbar modifier of 3% is not combined or taken into account.
Scarring: It is considered that the lumbar spinal scar on his back is an uncomplicated surgical scar and it does not worry the worker. The scar is normally covered. Some suture scars are noted but are considered common and normal for incisions in this region…0% WPI.”
He then turned to consider the other medical opinions and evidence and said:
“1. 30 June 2022, Dr Thomas Kossmann report. This detailed report determined an impairment of the lumbar spine of 18% WPI. Dr Kossmann included in this impairment a 3% WPI because of impairment of ADLs with which I agree. Dr Kossmann misstated the Guidelines ‘spinal surgery with (should be ‘and’) residual symptoms = 3%’. The Guidelines indicate ‘residual symptoms and radiculopathy…' Radiculopathy as defined is not present in this case and therefore, the 3% does not apply.
Dr Kossmann determined an impairment for scarring 2% WPI. However on following the Guidelines, page 73, 14.6, the worker’s lumbar surgical scar is considered “uncomplicated” and therefore does not rate an impairment.
2. 24 November 2022, Dr Ron Haig, Orthopaedic Surgeon report mentioned inconsistencies during the examination, which were not apparent during the present examination. Dr Haig determined an impairment of 5% WPI, failing to note the Guidelines instruction that following surgery with or without symptoms DRE Lumbar Category III should be used to determine the impairment. Impairment of 1% for ADLs is considered insufficient, in that Mr Kay has difficulty with housework and also some personal care.”
The appellant makes the following submissions:
(a) Table 4.27 of the Guidelines defines what must be found for a finding that radiculopathy exists in a lumbar spine. Once that finding is made a "lumbar modifier of 3%" is added to the WPI for the lumbar spine.
(b) There is a list of symptoms and clinical findings that are set out, any two of which must be found to conclude that radiculopathy can be found to exist for the purposes of the WPI assessment to include the "lumbar spine modifier of 3%".
(c) The appellant submits that the following findings from Table 4.27 of the Guidelines are relevant:
(i)reproducible impairment of sensation localised to an appropriate spinal nerve root distribution;
(ii)muscle wasting, and
(iii)loss or asymmetry of reflexes.
(d) The Medical Assessor found "... he still has numbness..." and "no pain but numbness over the lateral aspect of the left thigh".
(e) The finding of "numbness over the lateral aspect of the thigh" is a sensory loss consistent with an injury at L4/5 (see AMA 5, table 15.2, page 376) and so a finding that would support the use of the lumbar spine modifier or a finding of “pain with radiculopathy".
(f) In addition, the Medical Assessor found "right paraspinal muscle wasting" which is a sign of radiculopathy, and constitutes a second sign of radiculopathy.
(g) The Medical Assessor also found dissymmetry of movement in straight leg raising which is also a sign of radiculopathy under Table 4.27 of the Guidelines.
(h) The signs of radiculopathy outlined above are consistent with a finding of radiculopathy under Table 4.27 of the Guidelines.
(i) In his assessment of the TEMSKI scaring the Medical Assessor has found 0% because" Mr Kay indicated the scar did not worry him" and the Medical Assessor includes a photo of the scarring.
(j) Table 14.1 of the Guidelines does not use the phrase "the scar does not worry him" it states the test as "the Claimant is conscious of the scar". The Medical Assessor has misdirected himself in using the phrase he has in relation to the claimant's perception of the scarring.
(k) The description by Dr Krossmann in his report of 30 June 2022. is clearly consistent with a finding of 2% WPI. The description of the scar is thorough and clearly not consistent with a throw away line that the scar is "uncomplicated'. The MA should have described what he observed and not just relied on a photo.
The respondent’s submissions largely cavil with the manner in which the appellant presented his appeal with many misquotes and other errors, but notwithstanding those errors, the Panel determined that a re-examination was required in order to assess the appropriate impairment.
Medical Assessor Tommasino Mastroianni re-examined the appellant on 11 October 2023 and reported as follows:
“The medical history as recorded by Medical Assessor T Michael Long was confirmed by Nicholas Kay.
When asked about his present symptoms, he complains of constant back pain radiating to the buttocks, worse in the right buttock. The pain is aggravated if he attempts to do any physical work. Walking and sitting also aggravates his back pain as does coughing and sneezing.
He said he has no pain in the legs but complains of numbness affecting the left leg and foot. He complains of abnormal sensation, describing a cold feeling in the leg with pins and needles.
He is a man of stated age, tall of large frame with a muscular physique. He walks with a limp. He was uncomfortable when sitting whilst relaying the history. He dresses and undresses with some difficulty whilst sitting, as he cannot weight-bear on alternate limbs. He was unable to walk on heels and toes and partially squats.
Examination of the spine reveals loss of lumbar lordosis and thoracolumbar paravertebral muscle spasm, right greater than left. There is tenderness over the lower lumbar segments.
A well-healed surgical scar is noted to the right of the midline at the L4/5 level. The scar measures 4cm in length by 2mm in width. On first inspection the scar appears to have suture marks but when the scar is stretched, there were no suture marks. There is colour contrast with the surrounding skin, as the scar is pale in contrast with the surrounding skin. There was no adherence, no trophic changes felt, and no contour defect.
Spinal movements were restricted with flexion allowing fingertips to knee level. Extension was one-quarter the normal range, and rotation and tilt were restricted bilaterally.
He gets on and off the couch with no difficulty and is comfortable supine.
Examination of the lower limbs reveals no muscle wasting and on measuring the calves and thighs, they were of equal size. Muscle tone was normal. Power was normal. There was hypoaesthesia on the lateral aspect of the leg and instep, in the distribution of the L4/5 dermatome. Knee reflexes were brisk, right equals left. Medial hamstring reflexes were not as brisk but were symmetrical. The right ankle jerk was brisk whilst the left ankle jerk was depressed.
Straight leg raise supine, right 60° and left 40°. Straight leg raise when sitting, right is 90° and left 70°. Nerve root tension signs are negative on the left and positive on the right.
The claimant has an uncomplicated surgical scar. Under the best fit principle of the TEMSKI classification the scar best fits the descriptors for 0% WPI. (The claimant is not conscious of the scar, it is a pale scar and it colour contrasts with the surrounding skin. There are no trophic changes, there are no suture marks, the anatomic location of the scar is not visible with usual clothing and is only visible when wearing swimwear or wearing shorts with no top. There is no contour defect, no effect on ADLs, no treatment is required, and there is no adherence).
The claimant had an L4/5 decompression and falls into DRE Lumbar Category III. He is not independent in self-care and needs his toenails tended to by a podiatrist. I assess 13% WPI.
There is impaired sensation in a dermatomal distribution (L4/5), there is asymmetry of ankle reflexes and positive nerve root tension sign on the right. He meets the criteria of radiculopathy (PIC Guidelines 4th Edition, page 27, para 4.27).
In accordance with Table 4.2 (modifiers for DRE categories following surgery), he gets 3% WPI for residual symptoms and radiculopathy (PIC Guidelines, 4th Edition, page 29, Table 4.2).
The combined impairment (13 + 3) is 16% WPI.”
The Panel accepts the findings and assessments made by Medical Assessor Mastroianni. In our view they are consistent with the totality of the evidence
For these reasons, the Appeal Panel has determined that the MAC issued on 22 May 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1811/23 |
Applicant: | Nicholas Kay |
Respondent: | Muller & Edwards trading as the Coolah Black Stump Inn |
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 Medical Assessor Michael Long, 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) |
| 1. Lumbar Spine | 6.03.2020 | Chapter 4: pp 24-30 | Table 15-3: Page 384; DRE Lumbar Category III | 16% | Nil | 16% |
| 2.Scarring | 6.03.2020 | Chapter 14, Pages 74 TEMSKI . Page 73.14.6. | 0% | Nil | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0