Kelly Trotter Motor Group Pty Ltd v Milgate
[2022] NSWPICMP 476
•23 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kelly Trotter Motor Group Pty Ltd v Milgate [2022] NSWPICMP 476 |
| APPELLANT: | Kelly Trotter Motor Group Pty Ltd |
| RESPONDENT: | Bradley Milgate |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 23 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal by employer against 18% whole person impairment (WPI) assessment for lumbar spine; whether Medical Assessor (MA) failed to consider maximum medical improvement (MMI); whether MA had applied incorrect criteria in the performance of various tests in applying the guidelines; Held – MA comment regarding medico-legal specialist irrelevant to his assessment; MA statement that there appeared to have been a deterioration since other specialist report a diplomatic courtesy and did not raise question of MMI; submissions that various tests and measurements not properly explained without foundation; presumption of regularity considered; Jones v Registrar WCC considered and applied; observations as to employer submissions being made with an eye too keenly attuned to the perception of error; Bojko considered and applied; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 August 2022 Kelly Trotter Motor Group Pty Ltd, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Drew Dixon (MA), a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 July 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):
· 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 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 the PIC Rules.
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). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 9 May 2022 a delegate of the President referred this matter to the MA for an assessment of WPI caused by psychological/psychiatric disorder and the lumbar spine by an injury on 13 June 2019 (deemed). This appeal concerns the claim regarding the lumbar spine.
The referral followed consent orders made by Member Richard Perignon on 4 April 2022.
A MAC was issued for 22% WPI on 5 July 2022 regarding the claim for the psychological injury.
With regard to the subject appeal, the injury occurred when Mr Milgate (respondent worker) fell down some stairs after becoming dizzy on 3 October 2020 as a result of the medication he had been taking.
He sought medical treatment and imaging disclosed an L4/5 disc protrusion for which he underwent a CT guided cortisone injection to his back without any sustained benefit.
The question of an L4/5 laminectomy was said to be discussed but Mr Milgate declined such treatment.
The MA found there to be an 18% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant employer requested a re-examination of the worker by a Panel member but as no demonstrable error was found, such a request is denied.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
The MAC
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which 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 appellant submitted that the MA fell into error in assessing the injured worker as being in lumbar category 3.
The MAC
In his findings on examination the MA said:[1]
[1] Appeal papers page 25.
“There was stiffness of his lumbar segment with flexion decreased by one third, with slow and jerky recovery, with erector spinae muscle spasm with pain on back extension which was decreased by one half. Lateral flexion to the right was decreased by one third, and that to the left by one quarter.
There was tenderness at the L4/5 level in the mid line and in the adjacent lumbo-sacral facet joints.
Straight leg raise on the right was 50 degrees associated with right sciatica and a positive nerve root stretch test. On the left straight leg raise was 60 degrees and associated with lower back discomfort. The sciatica nerve root stretch test was negative on the left.
His knee jerks required reinforcement and his medial hamstring jerks were depressed and his ankle jerks were difficult to elicit.
There was sensory alteration in an L4 distribution of his right lower limb, extending onto the dorsum of his foot. Power of his right great toe was grade four out of five, compared with grade five out of five on the left, and power of the lateral toes was satisfactory. Plantar flexion was grade five out of five bilaterally, as was eversion and inversion was four plus out of five on the right.
His Babinski tests were negative.
Sensation on the sole of the right foot was satisfactory today, and his power of knee flexion and extension was grade five out of five bilaterally.
There was 1cm of wasting of his right leg below the knee and of his right thigh.
He had a limp on the right and was unable to toe or heel walk and his squat test was restricted due to low back pain and right sciatica. He had pes planus and wore thongs in preference to putting on socks and lacing up shoes which he is usually unable to do without the assistance of his wife.”
The MA reported on the radiological investigations. He said:[2]
“CT of the lumbar spine on October 23, 2020 noted disc bulge at L2/3 and L3/4 and at L4/5 a small paracentral disc protrusion indenting the thecal sac with potential involvement of the right L5 nerve root in the narrowed lateral recess. No fracture was seen.”
[2] Appeal papers page 26.
The diagnoses given were:[3]
“1. Low back strain with post traumatic stiffness with dysmetria, erector spinae muscle spasm
2. Right sciatica with L5 radiculopathy
3. Impaction of his back injury on his activities of daily living, including foot care.”
[3] Appeal papers page 26.
In giving his reasons for his assessment the MA said:[4]
“a. My opinion and assessment of whole person impairment the claimant’s back condition for the lumbar spine is rated at DRE category III with impaction on activities of daily living.
In making that assessment I have taken account of the following matters:-
The examination findings showing wasting of the right leg below the knee, with sensory change in an L5 distribution and depressed medial hamstring jerk on the right and weakness of dorsi flexion of the right great toe, together with the imaging studies showing compression of the L5 nerve root and L4/5 right paracentral disc protrusion in a narrowed lateral recess and the history of the heavy fall down stairs while dizzy on psychotropic medication for PTSD. He has right L5 radiculopathy.
b. An explanation of my calculations (if applicable)
That for the lumbar spine from Table 15-3, Page 384 AMA V, is DRE III, 10% whole person impairment with impaction on ADL’s including foot care is 3%, giving a total of 13% whole person impairment.”
[4] Appeal papers page 27.
In considering other medical opinions before him the MA noted the report of Dr John Bentivoglio of 25 June 2021 and stated:[5]
“There appears to have [been] deterioration in his back since his assessment by Dr Bentivoglio and that there is L5 radiculopathy persisting.”
SUBMISSIONS
[5] Appeal papers page 27.
Appellant employer
The appellant employer firstly referred to the MA’s comment that Mr Milgate’s condition had deteriorated since Dr Bentivoglio’s report of 25 June 2021. A demonstrable error was asserted because the MA did not give any further detail regarding the apparent deterioration and it was submitted that there was no current contemporaneous medical evidence that “co-related” his comment. We were referred to the CT scan of 23 October 2020 and the appellant employer submitted that it was significant that the scan report spoke of “potential” involvement of the right L5 nerve root. Moreover it was argued that Dr Bentivoglio had commented that the L4/5 discal damage was “not particularly great.”
The appellant employer submitted that the MA had assessed a 13% WPI “on the basis of that deterioration.” The MA had erred, it was contended, by both failing to give an explanation as to why the deterioration had stabilised, and not considering whether maximum medical improvement had been achieved.
The appellant employer submitted that the MA had referred to a sensory change in the L5 distribution but noted “elsewhere in the MAC” that the MA referred to sensory changes in an L4 distribution. This, it was claimed, was also a demonstrable error.
Secondly, the appellant employer contended that incorrect criteria had been applied when the MA assessed a lumbar category DRE III. The appellant employer referred to the finding of wasting in the right leg. We were referred to an unidentified section of AMA 5 which it was said required that the wasting should be measured as having at least a one centimetre difference in circumference. The appellant employer conceded that whilst Mr Milgate appeared to have met that criterion on examination, “he” (presumably the MA) had failed to provide “any information about what other variables may account for this measurement.” These variables were said to include the worker’s weight at the time of the assessment, recent weight loss, activity levels (or lack thereof) and any other variables.
The appellant employer referred to Table 15-3 of AMA 5, alleging that a measurement of the muscles above or below the contralateral knee was also required to be taken, and had not.
It was also alleged that the MA failed to provide a worksheet setting out his measurements. No authority was referred to in that regard.
The appellant employer alleged that the MA relied on a finding of a depressed medial hamstring jerk in finding that radiculopathy was present. We were referred to Table 15-1 of AMA 5 regarding a need for a comparison in reflexes between extremities. The failure by the MA to report any results of such testing was a further error, it was alleged.
The appellant employer recited the reasons given by the MA for his assessment of a lumbar category DRE III, and repeated its submission that the imaging study showed a potential involvement of the right L5 nerve root could not be relied on as a criterion for the finding of radiculopathy. Accordingly it was submitted that the MA should have concluded that the worker had non-verifiable radicular complaints rather than radiculopathy itself as defined.
Therefore, the MA had not applied the correct criteria in his assessment, it was argued. The absence of comparative measurements of wasting and reflexes demonstrated that the MA had not properly applied the AMA 5 guides, which itself constituted a demonstrable error.
Respondent worker’s submissions
The respondent’s submissions were prepared by Mr Bruce McManamey of counsel.
Mr McManamey submitted that the history taken by the MA was consistent with the description of symptoms in the L5 distribution. He referred to the findings on examination by the MA which we have reproduced above.
Mr McManamey conceded that the description of a sensory alteration in an L4 distribution was made by the MA, but was clearly a typographical error, as the MA had been describing sensory changes in the L5 distribution.
Mr McManamey submitted that the findings which were consistent with an L5 sensory change, as they extended into the dorsum of the foot, the power in the right great toe was grade 4 out of grade 5, eversion and inversion was also 4 out of 5 and 1cm wasting indicated such an involvement.
Mr McManamey referred to Chapter 4.27 of the Guides and submitted that the MA had in fact identified all the criteria therein set out.
Mr McManamey noted that, in “reality” the assessment was not concerned with a 12 month deterioration since the respondent worker had been seen by Dr Bentivoglio. The finding of radiculopathy was based on clinical findings and the imaging referred to by the MA, Mr McManamey argued, and the reference to deterioration was an explanation for the contrast between the two opinions.
The appellant employer’s argument about whether Mr Milgate had achieved maximum medical improvement was “ill-conceived”, it was submitted, in the light of the contents of Chapter 1.15 of the Guides. There was no question on the facts of the case that implicated this concept.
Mr McManamey submitted that the issue in determining maximum medical improvement was concerned with whether further improvement was likely. As surgery was not indicated, Mr Milgate could not be awarded any more than a DRE III assessment regardless of whether there was any further deterioration.
Mr McManamey submitted that the assumptions by the appellant employer as to the basis of a finding of radiculopathy were not correct. The appellant employer’s submission ignored findings of wasting, positive neural tension and depressed hamstring. Mr McManamey submitted that if there were some doubt about the L4 distribution, the MA’s findings were still sufficient to comply with the other criteria in Chapter 4.27.
Mr McManamey submitted:
· there was no need to record the exact measurements of each leg;
· matters such as weight loss, activity levels and physique were not relevant to the question of wasting;
· there was no requirement in table 15-3 for any measurements to be recorded;
· there was no basis for any allegation that the 1 cm wasting recorded by the MA was incorrect or improperly made;
· the appellant employer had failed to refer to any authority or guideline that required the worksheet to be produced when the assessment is for the lumbar spine;
· there was no requirement to compare contralateral reflexes in the guidelines and certainly none in respect to the provisions of chapter 4.27 of the guides, and
· the imaging in the CT scan was consistent with the other signs of radiculopathy in the L5 distribution.
DISCUSSION
The claim in this matter was for an assessment of Mr Milgate’s claim regarding his lumbar spine. Such claims are determined by Chapter 4 of the Guides, which provides by Chapter 4.1 that evaluation of impairment of the spine is only to be done using diagnosis-related estimates (DREs). Chapter 4.2 provides:[6]
“The method relies especially on evidence of neurological deficits and less common adverse structural changes such as fractures and dislocations. Using this method, DREs are differentiated according to clinical findings that can be verified by standard medical procedures.”
[6] Guides page 24.
Chapter 4.3 provides:
“The assessment of spinal impairment is made when the person’s condition has stabilised and has reached maximal medical improvement. This is considered to occur when the worker’s condition is well stabilised and unlikely to change substantially in the next year, with or without medical treatment.”
Maximum medical improvement is similarly defined within the Guides at Chapter 1.15:[7]
“Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”
[7] Guides page 4.
It can be seen that an MA is required to assess spinal injuries on evidence of neurological deficits and clinical findings that can be verified by standard medical procedures. In the present case, additional clinical features are required by virtue of Chapter 4.27, which we will come to in a moment.
The appellant employer has based part of its appeal on a comment made by the MA that there “appears” to have been a deterioration in Mr Milgate’s back since his assessment by Dr Bentivoglio. We note the conditional nature of that statement. We also note that the comment was made at [10c] of the MAC, which is entitled;
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.”
The appellant employer has addressed us on the basis that the MA’s comment was a positive finding upon which he based his assessment. The MA was commenting on the difference between his opinion and that of Dr Bentivoglio, and was probably showing diplomatic courtesy in making that comment, as the essential difference in opinion was that Dr Bentivoglio did not find that Mr Milgate was suffering from radiculopathy.
The submission that the MA based his assessment on a deterioration was untenable. The MA’s reasons were explained carefully and in considerable detail. We have reproduced his findings on examination and his reasons for assessment. He stated on three occasions that the worker suffered from radiculopathy, whilst setting out the findings on which that finding was based. He did not in terms refer to the precise guideline that defines radiculopathy, Chapter 4.27 of the Guides, but he enumerated them nonetheless. No submissions were made that suggested Mr Milgate did not satisfy the criteria therein set out – indeed the appellant employer did not refer to the guideline at all.
Chapter 4.27 provides:[8]
“4.27 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
• loss or asymmetry of reflexes
• muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
• reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
• positive nerve root tension (AMA5 Box 15-1, p 382)
• muscle wasting – atrophy (AMA5 Box 15-1, p 382)
• findings on an imaging study consistent with the clinical signs (AMA5, p 382).”
[8] Guides page 27.
Although the appellant employer contended that the CT scan could not be consistent with the clinical signs, as the report of 23 October 2020 spoke only of “potential” involvement of the right L5 nerve root, it did not address how such a report was not consistent with the clinical signs found by the MA. The Panel specialists confirm that the potential was indeed confirmed by the clinical signs. The MA found depressed medial hamstring reflexes, difficult ankle jerks and knee jerks that needed to be reinforced. These were examples of loss or asymmetry of reflexes. He found erector spinae muscle spasm on back extension , which was decreased by half, consistent with muscle weakness anatomically localised to the L5 spinal nerve root distribution in the opinion of the Panel specialists. The MA found a positive nerve root stretch test on the right side, which was negative on the left – again consistent with the criterion of a positive nerve root tension.
It can be seen that the terms of Chapter 4.27 reference “Box 15-1 of AMA5” in defining nerve root tension and atrophy. “Box 15-1” contains definitions, and it may be that the appellant employer intended to refer to it, rather than “Table 15-3” on which it relied in submitting that atrophy had to be established by measuring the contralateral side. Similarly “Box 15-1” defines reflex abnormalities by comparison of the normal and abnormal limbs.
We read with interest the appellant employer’s contention that an assessor was required to compare the contralateral side for measurements of wasting and for reflexes. Such is self-evident, and we have no reason to believe that the MA, in recording his findings on examination, did not apply the correct methodology in his examination, including properly measuring and observing the tests, definitions and requirements of the Guidelines.
There is a presumption of regularity that applies to the action of administrative decision makers. In Bojko v ICM Property Service Pty Ltd[9] Handley AJA, with whom Allsop P and Giles JA agreed, said at [36]
“The [appellant] has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’."
[9] [2009] NSWCA 175.
In any event there is no factual basis for the allegation that the MA did not conduct his examination in accordance with the guidelines. There is no substance in a submission that because the MA did not set out in detail the manner in which he took his various measurements and tests, he has failed to give adequate reasons. In Jones v The Registrar WCC[10] James J said at [50]:
“The second defendant clearly made a clinical examination of the plaintiff and he stated in his certificate his finding that ‘the range of motion in the cervical spine was symmetrical’. There is a presumption of regularity that the AMS had performed such tests as might be required to determine whether the range of motion in the cervical spine was symmetrical or asymmetrical. The medical science the second defendant was applying was not controversial and his reasons were not required to be extensive or detailed.”
[10] [2010] NSWSC 481
Similarly, the medical science applied by the MA was not controversial, and his reasons were, as we have indicated, clearly explained in a thorough and comprehensive statement. The appellant employer’s submissions are an example, with respect, of a litigant construing the decision under review minutely and finely with an eye too keenly attuned to the perception of error.
We note that the MA described sensory alteration in an “L4” distribution. We have already described the findings by the MA that were consistent with an L5 distribution, and we accept that the misdescription was an inadvertent error, which was of no consequence.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 July 2022 should be confirmed.
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