Kurtovic v Zenox Painting Service Pty Ltd
[2024] NSWPICMP 381
•17 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kurtovic v Zenox Painting Service Pty Ltd [2024] NSWPICMP 381 |
| APPELLANT: | Safet Kurtovic |
| RESPONDENT: | Zenox Painting Service Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Andrew Porteous |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 17 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of the lumbar spine; worker suffered a spinal fracture when pushed to the ground; question as to extent of spinal fracture; consideration of clauses 4.12 and 4.30 of the Guidelines; no well-centred plain X-Ray available, in circumstances other imaging sufficient; lack of reasons in Medical Assessment Certificate (MAC); Appeal Panel Medical Assessors measured original scans to conclude compression of >50%, DRE category IV assessed; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 January 2024, Safet Kurtovic (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
15 December 2023.In the Application to Appeal, the appellant has indicated that he relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error.
In the submissions attached to the appeal, the appellant also refers to and relies upon s 327(3)(c) of the 1998 Act, being that the assessment was made on the basis of incorrect criteria. Taking substance over form, the Appeal Panel considers that the appeal has been made on both grounds.
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).
RELEVANT FACTUAL BACKGROUND
Mr Kurtovic was injured during a work-related Christmas celebration. One of his colleagues was involved in an altercation with a security guard, and Mr Kurtovic was pushed to the ground. He immediately felt pain in his lower back and right shoulder. He was taken to hospital and underwent medical imaging, which showed a disc fracture.
Mr Kurtovic has experienced pain in his lower back since that time. He made a claim for lump sum compensation on the respondent, which eventually arose as a dispute at the Personal Injury Commission (Commission). As the only dispute concerned the degree of permanent impairment, the matter was referred to a Medical Assessor, who assessed 11% whole person impairment. Mr Kurtovic appeals from that assessment.
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 it was not necessary for the worker to undergo a further medical examination because none was requested and in the circumstances of the issues in dispute, which were limited to the extent of the fracture suffered by the appellant, it would not assist the Appeal Panel.
The Appeal Panel determined that it was appropriate that the appellant produce certain medical records to the Commission. This power was exercised pursuant to ss 324(1)(b) and 321(4) of the 1998 Act. The following material was requested:
(a) If it exists, a well-centred plain X-ray of the appellant’s lumbar spine, including report and original scans.
(b) Original scans of all radiological investigations undertaken of the appellant, including:
(i)CT scan dated 8 December 2019;
(ii)MRI dated 13 December 2019, and
(iii)CT scan dated 23 March 2020.
The Appeal Panel was of the view that seeing the original scans of relevant radiological investigations would be relevant to determining the issues raised on appeal, and in particular, the extent of the fracture suffered by the appellant. The Appeal Panel were satisfied that a demonstrable error existed on the face of the MAC, for the reasons that will be set out below.
On 15 May 2024, the appellant produced material in person to the Commission, being the following original scans:
(a) X-ray report of right shoulder, dated 8 December 2019;
(b) MRI of the lumbosacral spine, dated 13 December 2019, and
(c) CT of the lumbosacral spine, dated 23 March 2020.
No X-ray of the lumbar spine was produced. It is apparent that none was available.
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. The Appeal Panel also had before it the original scans referred to above, and have taken those 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.
The appellant alleges that the Medical Assessor has made four errors. Each of those alleged errors goes to the Medical Assessor’s conclusion regarding the extent of the fracture suffered by Mr Kurtovic and the compression of the vertebra associated with that fracture. In summary, the appellant alleges that the Medical Assessor:
(a) misapprehended cl 4.12 of the Guidelines;
(b) failed to engage with cl 4.30 of the Guidelines;
(c) failed to consider the relevant evidence, being the reports of treating physiotherapist Dr Al Khawaja dated 27 April 2020 and 3 August 2020, containing the potential opinion that there has been a progression collapse of vertebral body height, and
(d) failed to explain why he disregarded the findings in the CT scan dated 23 March 2020.
The respondent addresses each of the appellant’s submissions as set out above. In summary, the respondent submits that:
(a) there has been no plain centred X-ray, but that is the optimal method. In the absence of such evidence, it was open for the Medical Assessor to rely on the available radiology, and that loss of motion segment integrity requires measurement at the superior border of the vertebral not centrally, which is how the CT taken 23 March 2020 was measured;
(b) the Medical Assessor has appropriately engaged with 4.30 of the Guidelines;
(c) the report of Dr Al Khawaja is of no probative value, as the Medical Assessor has reviewed the original imaging, and
(d) the Medical Assessor has referred to the available radiology and has preferred the evidence contained in the CT scan dated 8 December 2019 and MRI dated 13 December 2019.
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. Although four grounds of appeal are raised, the substance of the issue in dispute in this case is limited to the appropriate measurement of the fracture suffered by the appellant. The Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 issue on appeal in this matter is a narrow one, concerning the extent of the fracture suffered by the appellant in terms of loss of vertebral height. There is no dispute on the evidence that Mr Kurtovic suffered a fracture in his spine at L1 involving the endplate. The appellant’s claim on the respondent was made on the basis of greater than 50% vertebral height loss as assessed by Dr Assem. The appellant was, apparently, scheduled to attend an appointment with Dr Smith, but no report appears in the material before the Medical Assessor or was before the Appeal Panel. As such, there is no contravening medicolegal opinion that Mr Kurtovic suffered from a fracture with less than 50% loss of vertebral height.
There are, however, differences in loss of height based on reports of the radiological evidence. MRI and CT evidence in December 2019 suggests a loss of less than 20%, whilst the CT scan of 23 March 2020 suggests loss of 58%.
The difference is relevant to the application of cl 4.30 of the Guidelines, which provides:
“Vertebral body fractures and/or dislocations at more than one vertebral level are to be assessed as follows:
·Measure the percentage loss of vertebral height at the most compressed part for each vertebra, then
·Add the percentage loss at each level:
ototal loss of more than 50% = DRE IV
ototal loss of 25% to 50% = DRE III
ototal loss of less than 25% = DRE II
·If radiculopathy is present then the person is assigned one DRE category higher.”
Also relevant is how compression is to be measured based on radiology, pursuant to cl 4.12 of the Guidelines:
“The optimal method to measure the percentage compression of a vertebral body is a well-centred plain X-ray. Assessors should state the method they have used. The loss of vertebral height should be measured at the most compressed part and must be documented in the impairment evaluation report. The estimated normal height of the compressed vertebra should be determined, where possible, by averaging the heights of the two adjacent (unaffected and normal) vertebrae.”
The Medical Assessor proceeded to assess Mr Kurtovic, producing a MAC dated 15 December 2023. He had before him the radiology reports attached to the Application to Resolve a Dispute. He did not have, by his own admission, the original scans on which those reports were based. He states on page 3 of the MAC: “I was able to review no imaging related to the injuries”. The Medical Assessor goes on to outline what the reports say:
“A report of CT scan from 8 December 2019 where a compression fracture is not reported. An addendum notes ‘On review of the CT scan on the lumbar spine there is a suspected mild compression fracture of L1 involving the superior endplate and upper body. There is less than 20% loss of height.’
An MRI from 13 December 2019, fracture of the L1 endplate with approximately 20% loss of height. Interestingly, the report is that of an acute fracture with bone marrow oedema.
Ultrasound of the right shoulder on 18 February 2020 notes a full thickness tear of the supraspinatus with subacromial bursitis.
I note a CT scan from 23 March 2020 again noting the compression fracture reporting ‘58% loss of height of the L1 vertebral body centrally’”
The Medical Assessor goes on to explain his calculations in relation to the spine on page 4 of the MAC:
“Whilst I have not been able to measure the films personally, radiology reports suggest 20% compression fracture of L1. According to AMA 5, compression fractures of less than 25% are assessed as DRE Lumbar Category II (5% whole person impairment). According to SIRA page 28 paragraph 4.34, I assess a further 2% for restrictions of activities of daily living, giving 7% whole person impairment for the lumbar spine.”
The Medical Assessor also commented on the opinion of Dr Assem, who assessed based on a loss of vertebral height of greater than 50%:
“With respect to the report by Dr Assam dated 19 June 2023, I note he has assessed the lumbar spine as DRE Category V on the basis of greater than 50% vertebral body height reported on the MRI. SIRA page 25 paragraph 4.12 directs that ‘Compression is to be assessed off well centred under plain x-ray.’ When using such a modality of imaging, the compression is reported at the 20%.”
The appellant submits that there are four errors with the above assessment. The appellant’s submissions are summarised above. The Appeal Panel are satisfied that the Medical Assessor has erred, for the following reasons.
The first error alleged by the appellant is that the Medical Assessor has misapprehended cl 4.12 of the Guidelines. This clause sets out an “optimal method” for the measurement of compression of a vertebral body. The Medical Assessor was clearly aware of the relevant clause, as he has referred to it in his reasons. He then states that “When using such a modality of imaging, the compression is reported at the 20%”. The issue with this conclusion is that no such imaging was available. There does not exist, in the evidence before the Medical Assessor or on appeal, a well centred plain X-ray of the spine. There was no such image or report before the Medical Assessor – there was a CT and an MRI taken in December 2019, and then a further CT taken in March 2020.
The Appeal Panel called for the original scans referred to in the material before the Medical Assessor, and if it existed, an X-ray of the spine. No X-ray was produced, but some original scans were. As such, the Appeal Panel can be satisfied that the “optimal method” for assessment, referred to in cl 4.12 of the Guidelines, does not exist. The Medical Assessor’s conclusion that the use of “such a modality” results in compression of less than 20% is clearly erroneous. This ground of appeal is made out.
In response to this ground, the respondent firstly submits that it was open to rely on the earlier radiology, and that the correct method of assessment of loss of motion segment integrity requires measurement at the superior border, not centrally, with reference to Figure 15-3b in AMA 5.
The first submission goes to the second and fourth errors alleged by the appellant, concerning the Medical Assessor disregarding the CT scan dated 23 March 2020, which demonstrates compression of greater than 50%, and providing no reasons for his decision to do so. The Appeal Panel accepts these submissions – the Medical Assessor has chosen to rely on the earlier imaging, without explicitly explaining why he has taken that course. His reasons are absent in that regard and this also constitutes an error. Whilst comprehensive reasons are not required, the appellant has been left with no understanding as to why the Medical Assessor chose to rely on the earlier imaging, where it is apparent that there is later imaging that shows a greater level of compression.
The second submission relies on reference to AMA 5. There are two reasons why the Appeal Panel does not accept the respondent’s construction of the issue in question. Firstly, figure 15-3b is an assessment of impairment based on loss of motion segment integrity, which is not the method of assessment employed by the Medical Assessor. Clauses 4.14-4.16 of the Guidelines sets out the criteria for using this method of assessment. The subject injury does not meet this criterion, hence this method cannot be used in this instance. The Guidelines deal with motion segment integrity at cls 4.14-4.16:
“Motion segment integrity alteration can be either increased translational or angular motion, or decreased motion resulting from developmental changes, fusion, fracture healing, healed infection or surgical arthrodesis. Motion of the individual spine segments cannot be determined by a physical examination, but is evaluated with flexion and extension radiography.
The assessment of altered motion segment integrity is to be based upon a report of trauma resulting in an injury, and not on developmental or degenerative changes.
When routine imaging is normal and severe trauma is absent, motion segment disturbance is rare. Thus, flexion and extension imaging is indicated only when a history of trauma or other imaging leads the physician to suspect alteration of motion segment integrity.”
Secondly, the Guidelines deal with vertebral compression fractures explicitly, as set out in cls 4.12 and 4.30.
The Guidelines also point out that they are to prevail over AMA 5 at cl 1.1:
“The Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) in most cases. Where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.”
In present circumstances, the Guidelines, which explicitly deal with fractions involving compression of vertebral height, take precedence over the methodology in AMA 5. As such, the Medical Assessor was required to apply cls 4.12 and 4.30 of the Guidelines. A fair reading of the MAC, as set out above, suggests he has erred in doing so.
As a result of the above, the Appeal Panel determined that it was necessary that it review the original imaging to determine the correct extent of loss of vertebral height. The reports provided were inconclusive and as the Medical Assessor points out in the MAC, he did not review the original scans.
Both Medical Assessor members of the Appeal Panel reviewed the original scans together. On review, the Medical Assessors measured the loss of vertebral height at the most compressed part of each vertebra. These measurements show a 60% loss of height of the L1 Vertebra. This is greater than 50% loss, which, in accordance with cl 4.30 of the Guidelines, means the appellant should be assessed as falling into DRE category IV.
There are a number of observations that should be made about this assessment.
Firstly, cl 4.12 provides for an “optimal method” involving a “well-centred plain X-ray”. This does not require the use of such radiology in every circumstance. Where there are competing types of radiology, including a plain X-ray, that is to be preferred. However, where no such imaging exists, the assessment is able to proceed on the available evidence. This is confirmed by the following sentence, which states that “Assessors should state the method they have used.” This introduces discretion as to the appropriate method, but requires an Assessor to state the method used (and, it is likely, explain why that method was used).
In present circumstances, evidence conforming with the “optimal method” was unavailable to the Appeal Panel. Accordingly, the Appeal Panel reviewed the available evidence, being the original films of a CT scan and an MRI. These images, although not “optimal”, were sufficiently clear to provide an accurate measurement of loss of vertebral height. The Appeal Panel has considered and used both and are satisfied that this is appropriate in the circumstances.
Secondly, there is the conflict between the earlier CT scan from 8 December 2019, which originally did not report a compression fracture, and then, via addendum, was altered to record a loss of height of less than 20%, and the CT of 23 March 2020.
The Appeal Panel did not have the earlier CT scan before it, only the report prepared by the radiologist. The Medical Assessor has chosen to rely on that evidence without explanation, disregarding the later CT scan.
The Guidelines are silent as to circumstances where competing radiology exists as to the loss of vertebral height, including where different methods may involve different outcomes, and where, as in present circumstances, later radiology shows a greater loss (or, as may be the case in other circumstances, lesser loss). In present circumstances, the Appeal Panel is satisfied that it is appropriate to adopt the later radiology, for the following reasons:
(a) the Medical Assessor members of the Appeal Panel have been able to measure the original scans and provide an accurate measure of loss of height;
(b) the earlier radiology report is unreliable, as it first recorded no compression, and then, via addendum, a compression of less than 20%, and
(c) the assessment of compression varies in the CT and MRI taken in December 2019 and the CT taken in March 2020, accounted for the by differences in the scan methodology.
Accordingly, the Appeal Panel find that the loss of height of the L1 vertebra is 60%. This places the appellant into DRE category IV for the lumbar spine, for a base impairment of 20% whole person impairment. The Medical Assessor has added 2% whole person impairment for the impact on activities of daily living. This has not been challenged and accordingly will be added, for a total whole person impairment in the lumbar spine of 22%. This will be combined with the 4% impairment assessment of the right shoulder, which has also not been challenged, for a total impairment of 25% whole person impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 December 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: | W7488/23 |
Applicant: | Safet Kurtovic |
Respondent: | Zenox Painting Service 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 Medical Assessor 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 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 | 7/12/2019 | Cl 4.12, 4.30, 4.34 | P 384, T15.3 | 22% | 0 | 22% |
| 2.Right upper extremity | 7/12/2019 | P 476 16.40 | 4% | 0 | 4% | |
| Total % WPI (the Combined Table values of all sub-totals) | 25% | |||||
0
2
0