Lack Group Traffic Pty Ltd v Smith
[2024] NSWPICMP 815
•2 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lack Group Traffic Pty Ltd v Smith [2024] NSWPICMP 814 |
| APPELLANT: | Lack Group Traffic Pty Ltd |
| RESPONDENT: | Lara Anne Smith |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | J Brian Stephenson |
| DATE OF DECISION: | 2 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of injury to cervical spine, thoracic spine and right lower extremity; appellant submitted error in assessment of 2% for interference with activities of daily living (ADL) and in assessment of DRE category II for the thoracic spine and cervical spine; Panel found no error in assessment of ALDs; Held – Medical Assessor (MA) erred in failing to provide proper findings as to range of motion in the spine; worker re-examined; assessment by the Panel the same as by the MA so Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 August 2024 Lack Group Traffic Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Jonathon Negus (Medical Assessor), who issued Medical Assessment Certificate (MAC) on 22 July 2024.
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).
RELEVANT FACTUAL BACKGROUND
Lara Anne Smith (Ms Smith/the respondent) suffered an injury to her cervical spine, thoracic spine and right lower extremity during her employment with the appellant on 1 July 2022.
Ms Smith lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 21 February 2024 in which she claimed an amount of $43,468.75 in respect of 16% WPI of the cervical spine, thoracic spine and right lower extremity as a result of the injury on 1 July 2022.
The Medical Assessor examined the appellant on 29 May 2024 and assessed 7% whole person impairment (WPI) of the cervical spine, 5% WPI of the thoracic spine and 0% WPI of the right lower extremity. Therefore, the total WPI assessed as a result of the injury on 1 July 2022 was 12%.
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 there was an error in the MAC and that Ms Smith should undergo a further medical examination because there was insufficient information upon which to make a determination.
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 Tommasino Mastroianni of the Appeal Panel conducted an examination of the worker on 20 November 2024. and reported to the Appeal Panel.
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’s submissions include the following:
(a) Ground 1 – assessment of Activities of Daily Living (ADLs). The MAC contains a demonstrable error due to the failure of the Medical Assessor to provide reasons for his assessment of 2% WPI for ADLs. Further, the Medical Assessor applies the incorrect criteria in assessing permanent impairment for interference with ADLs.
(b) In assessing permanent impairment for ADLs for the cervical spine, the Medical Assessor records Ms Smith is “restricted with usual household tasks”. This appears to be the only reasoning provided by the Medical Assessor for assessing 2% WPI for ADLs.
(c) The findings of the Medical Assessor indicate Ms Smith is able to engage in her usual household tasks albeit with some difficulty due to “her back”. The Medical Assessor does not clearly explain the extent to which Ms Smith is limited in her household activities due to the injuries to the thoracic and cervical spine. The Medical Assessor does not clarify if the reference to the “back” relates to the upper back/thoracic region or the lower back/lumbar region.
(d) Ms Smith is noted to have “issues” standing for long periods of time while shopping and vacuuming. However, there is no suggestion in the MAC that Ms Smith is unable to engage in these activities or is ‘restricted’ as required in the Guidelines due to her thoracic and cervical spine injury.
(e) The Medical Assessor is required to provide adequate reasons for his decision to assess 2% WPI for restriction of ADLs in relation to the cervical spine and thoracic spine injury, to enable his assessment of permanent impairment to be understood. The Medical Assessor has provided inadequate reasoning for his assessment, which prevents the parties to the dispute from understanding the basis of his assessment of 2% WPI.
(f) The findings of the Medical Assessor that Ms Smith is no longer able to participate in sporting and recreation activities including gym and Pilates, is consistent with an assessment of 1% WPI based on the Guidelines.
(g) The appellant submits the assessment of 2% WPI by the Medical Assessor, should be substituted with an assessment of 1% WPI.
(h) Ground 2 – assessment of diagnosis-related estimate (DRE) Category II for the cervical spine and thoracic spine. The Medical Assessor made an assessment on the basis of incorrect criteria in assessing DRE Category 2 for the cervical spine and thoracic spine injury, despite there being no findings on examination of “non-verifiable radiculopathy” in the thoracic and cervical spine dermatomes as required in the Guidelines and AMA 5.
(i) AMA 5 provides that an assessment of DRE II is warranted where there are “findings compatible with a specific injury or illness” including “muscle guarding or spasm observed at the time of examination, asymmetric loss of range of motion or non-verifiable radicular complaints”.
(j) The Medical Assessor confirms that there are no findings of muscle guarding or spasm and finds Ms Smith to have “good range of motion” in both the thoracic and cervical spine. Accordingly, the Medical Assessor provides an assessment of DRE Category II for both the cervical spine and thoracic spine due to his finding of “non-verifiable radiculopathy” during physical examination of Ms Smith.
(k) The findings of the Medical Assessor suggest Ms Smith’s radicular complaints of pain do not follow “anatomical pathways” related to the thoracic spine or cervical spine. The findings of the Medical Assessor on examination are “normal upper limb and lower limb neurology except for the specific localised numbness in the right lower leg”.
(l) As indicated in Figure 15-1 of AMA 5 localised numbness in the right lower leg does not relate to the thoracic spine or cervical spine but would more likely be attributable to the lumbar spine or lumbosacral region.
(m) The Medical Assessor applies the incorrect criteria in finding Ms Smith presents with non-verifiable radicular complaints in the thoracic spine and cervical spine.
(n) Table 15-2 states the sensory deficit for the cervical spine and thoracic spine would be identified in the “anterolateral shoulder and arm”, the “lateral forearm, hand, and thumb”, “middle finger”, “medial forearm and hand, ring and little fingers”, and “medial forearm”.
(o) The Medical Assessor also applies the incorrect criteria in assessing Ms Smith as falling into DRE Category II for the thoracic spine and lumbar spine. The Medical Assessor in doing so fell into a demonstrable error.
(p) The MAC dated 22 July 2024 should be revoked. The Appeal Panel should issue a fresh MAC which assesses 0% WPI, based on a finding of DRE Category I for the cervical spine and the thoracic spine. This would be consistent with the examination findings of the Medical Assessor.
The respondent’s submissions include the following:
(a) Ground 1 – assessment of ADLs. There is an inherent aspect of (legitimate) subjectivity in the assessment process of ADLs, in which one doctor may reasonably arrive at a different conclusion from another on a “best fit” basis, but it does not mean either doctor is wrong. There is also no error disclosed by the fact that Medical Assessor took a particular view.
(b) The quote in the MAC in respect of struggling “a little with vacuuming and the heavier domestic chores”, also includes difficulties with going to the gym which Ms Smith used to do “a lot” and whilst she attempted to do Pilates, that was too painful.
(c) It is not correct that the Medical Assessor only took into account restriction with household tasks regarding ADLs. More detail was taken into account on this issue. The reasons are not, as claimed, inadequate.
(d) One percent WPI for ADLs is not appropriate. The difficulties with sporting and recreational activities, are not the only difficulties Ms Smith suffers from.
(e) Ground 2 – assessment of DRE Category II for cervical spine and thoracic spine. For DRE II there are three alternatives in Table 15-5. The first of which “may” include muscle guarding etc. It is not necessary that muscle guarding be included.
(f) Further, the Medical Assessor noted that there was neurology in the right lower leg, which is consistent with “non verifiable radicular complaints” which is another basis for applying DRE II (separate to muscle guarding) although on a proper construction, the said Table of AMA 5 are examples of which “may” be consistent with the DRE II but it is not necessary that any alternative actually be present because of the word “may” before the various alternatives are listed.
(g) It is appropriate for the Appeal Panel to reexamine and assess the impairment as a result of the injury referred for assessment. However, this is ultimately a matter for 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.
Ground 1 – assessment of ADLs
The appellant submits that the Medical Assessor fell into demonstrable error due to his failure to provide adequate reasons for his assessment of 2% WPI for interference with ADLs as a result of Ms Smith’s cervical spine injury. The appellant argues that the Medical Assessor bases his assessment on incorrect criteria due to his failure to assess ADLs “based on all clinical findings and other reports” as required in the Guidelines.
The Medical Assessor under history notes that on 1 July 2022, Ms Smith was involved in a motor vehicle accident on a highway and her vehicle went down a steep ditch approximately 5m deep and struck a tree. He reports that Ms Smith sustained a concussion as well as the injury to her right lower leg and injuries to her cervical and thoracic spine.
Under “present symptoms” the Medical Assessor notes that in relation to the cervical and thoracic spine, Ms Smith has some left sided neck pain which can radiate down into the left shoulder as well as some associated stiffness. He reports that she has constant pain running through her thoracic spine, which does not radiate anywhere and tends to be worse with long periods of standing.
Under “Social activities/ADL” the Medical Assessor writes:
“She has no issues with her own personal care but she does struggle a little with vacuuming and the heavier domestic chores which hurts her back. She has issues if she is standing for long periods of time in the house or say out shopping.
She drives an automatic car but is restricted to 60 minutes. She used to go to the gym a lot pre-accident but has not been back since. She did try some Pilates but it was too painful”.
Under “findings on physical examination” the Medical Assessor writes:
“Cervical and Thoracic Spine
She had no surgical scars.
She was tender over the mid cervical, upper and lower thoracic and upper lumbar spine.
There was no guarding or spasm and she had a good range of motion in both. She had normal upper limb and lower limb neurology except for the specific localised numbness in the right lower leg, as described.”
Under “Details and dates of special investigation” the Medical Assessor writes:
“CT cervical spine showed no acute fracture or prevertebral hematoma with normal alignment.
…
21/07/2022: MRI scan cervical and thoracic spine: Left T1 nerve root is unencumbered with no disc herniation or facet arthropathy at this level. No disc herniation in the cervical spine. Minimal focal disc herniations in the thoracic spine at T6/7 and T8/9 which subtly indent the cord without myelomalacia”.
The Medical Assessor assesses the cervical spine as DRE II on the basis of non-verifiable radiculopathy at 5% WPI and added an additional 2% WPI for restriction with usual household tasks. This results in an assessment of 7% WPI for the cervical spine. The Medical Assessor assesses the thoracic spine as DRE II on the basis of non-verifiable radiculopathy at 5% WPI.
In commenting on the other medical opinions and findings, the Medical Assessor notes that Dr Bodel, in a report dated 15 June 2023, found DRE II for the cervical spine with 2% for ADLs and DRE II for the thoracic spine. The Medical Assessor notes that Dr Haig, in a report dated 1 January 2024, found no impairment and stated that Ms Smith made no complaint of the cervical or thoracic spine. The Medical Assessor comments that this statement was clearly at odds with his examination and the examination of Dr Bodel.
In her statement dated 8 May 2023, Ms Smith wrote:
“24. I experience ongoing pain and swelling within my right leg and ongoing pain in my lower back. My symptoms are often aggravated by standing, sitting and walking for prolonged periods. I also have difficulties in bending and squatting.
…
26. I am able to complete household duties, though this often increases the pain within my right leg and back. I receive some assistance from my partner to undertake household duties.
27. In terms of social activities, I tend to avoid going out if I am in pain or if it is raining outside.
28. Prior to the injury, I regularly attended the gym. However, I do not attend the gym as frequently as it aggravates the pain...”
In a report dated 15 June 2023, Dr James Bodel, consultant orthopaedic surgeon, expressed the opinion that Ms Smith’s ADLs had been moderately compromised because of the injury to the spine. He made the following assessment:
“She has a DRE Cervical Category II level of assessable impairment in accordance with the description in Table 15-5 on Page 392 of AMA5. There is asymmetry of movement and guarding but no clinical sign of radiculopathy and a 5% Whole Person Impairment rating.
She has a DRE Thoracic Category II level of assessable impairment in accordance with the description in Table 15-4 on Page 389 of AMA5. Again, there is asymmetry of movement and guarding but no clinical sign of radiculopathy and a base rating of 5% Whole Person Impairment.
Her Activities of Daily Living have been moderately compromised in accordance with Item 4.34 and Item 4.35 on Page 28 of the Fourth Edition of the WorkCover Guidelines giving a 2% loading and a 7% Whole Person Impairment overall.”
In a report dated 18 January 2024, Dr Ron Haig, consultant orthopaedic surgeon, noted that Ms Smith stated that in the 18 months since the accident she had continued with episodic low back pain but made no complaint in respect of the neck. He noted that at a recreational level she stated she was earlier attending the gym and Pilates but does so "less now". Under examination Dr Haig referred to examination of the lumbo-sacral spine, neurological examination of the lower extremities and examination of the right ankle/foot. He made no reference to any examination of the cervical spine or thoracic spine. Dr Haig did not believe that there was any ongoing pathology from the incident on 1 July 2022. He stated that Ms Smith made no mention of her cervical spine nor the thoracic spine in the examination and her only complaint was of intermittent pain in the lower back. Dr Haig did not believe that there had been any adverse effect on her ADLs.
The interpretation of ADLs is set out in paragraphs 4.33, 4.34 and 4.35 of the Guidelines. Paragraph 4.34 provides that the diagram below is to be used as a guide to determine whether 0%, 1%, 2% or 3% should be added to the bottom of the appropriate impairment range.
Paragraph 4.33 provides:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.”
Paragraph 4.34 also provides: “This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury”.
Paragraph 4.35 provides:
“The diagram is to be interpreted as follows: Increase base impairment by:
• 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
• 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
• 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc”.
The appellant submits that the Medical Assessor failed to provide reasons for the assessment of 2% for interference with ADLs. The Appeal Panel accepts that the findings of the Medical Assessor indicate Ms Smith struggles a little with vacuuming and the heavier domestic chores. While the Medical Assessor did not explain in further detail the extent to which Ms Smith is limited in her household activities due to the injuries to the thoracic and cervical spine, he did note that Ms Smith has issues if she is standing for long periods of time in the house or out shopping. On balance, the Appeal Panel considered that the Medical Assessor provided sufficient reasons for assessing 2% WPI for ADLs
Ground 2 – assessment of DRE II for the cervical spine and thoracic spine
The appellant submitted that the Medical Assessor made an assessment on the basis of incorrect criteria in assessing DRE Category II for the cervical spine and for the thoracic spine injury, there being no findings on examination of “non-verifiable radiculopathy” in the thoracic and cervical spine dermatomes as required in the Guidelines and AMA 5.
Paragraph 4.18 of the Guidelines provides:
“DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present. In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips. In assigning category DRE II, the assessor must provide detailed reasons why the category was chosen.”
Table 15-4 of AMA 5 provides that the criteria for rating DRE Thoracic Category II include:
“History and examination findings are compatible with a specific injury or illness; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion (dysmetria), or non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy”.
Table 15-5 of AMA 5 provides that the criteria for rating DRE Cervical Category II include:
“Clinical history and examination findings compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy”.
The Guidelines refer to non-verifiable radicular complaints as “radicular symptoms in the absence of clinical signs”.
In considering whether the Medical Assessor made an assessment on the basis of incorrect criteria when he assessed DRE Category II for the cervical spine and DRE Category II for the thoracic spine injury, it is necessary to look at his examination findings.
The Appeal Panel accepts that there was no non verifiable radiculopathy in the cervical spine and thoracic spine and that the abnormal sensation in the leg is due to soft tissue injury.
However, the Medical Assessor, as noted above, found that Ms Smith “had a good range of motion in both” the cervical spine and thoracic spine. However, the Medical Assessor did not find that there was a normal range of motion in the cervical spine and thoracic spine. The Medical Assessor did not provide precise findings in the MAC setting out the range of motion in the cervical spine and thoracic spine. The failure to provide precise findings concerning the range of motion in the cervical spine and thoracic spine was a demonstrable error.
The Appeal Panel concludes that it is necessary for the appellant to undergo a further medical examination because there is insufficient evidence on which to make a determination of degree of impairment of the cervical spine and thoracic spine. In particular, the MAC contained no precise findings of the range of motion.
As noted above, Dr Mastroianni re-examined the respondent on 20 November 2024. Dr Mastroianni provided the following report:
“1. The workers medical history, where it differs from previous records
The worker’s medical history recorded by Medical Assessor, Dr Jonathon Negus was confirmed by the patient.
2. Additional history since the original Medical Assessment Certificate was performed
The claimant informed me that she is 29 weeks pregnant.
For pain relief as she is pregnant, she only takes Panadol on a needs basis.
She complains of neck pain, upper and lower back pain and pain in the left trapezium affecting the top of her left shoulder and left scapular region. On direct questioning she has no referred symptoms from the neck or back.
Neck and back is aggravated by activities and she has difficulty with housework, particularly mopping, vacuuming and scrubbing the bath and her partner does it. She tried to do Pilates and go to the gym but this aggravated the neck and back. She stated that before the injury she used to go to the gym regularly and go for walks.
3. Findings on clinical examination
She is a lady of stated age of large frame and build. She walks with a normal gait. She sat comfortably whilst relaying the history.
Examination of the spine reveals normal spinal curve.
Examination of the neck and back reveals no muscle guarding or tenderness in the cervical and or thoracolumbar spine. She was tender over the C5/6 spinous process and the right side of the neck. There was no tenderness on the left side of the neck.
There was generalised discomfort in the left trapezium. There was no tenderness in the shoulders. There was tenderness over the lower dorsal spine at T9/T10 level. She was also tender over the lumbosacral segment.
Neck movements were normal in flexion and extension. Left rotation and tilt was normal whilst right rotation and tilt was restricted by one-third. She complains of neck pain at the end of range of rotation and tilt.
Back movements were restricted with flexion allowing fingertips to just below mid-shin level. Extension was three-quarters normal. Rotation was normal, right equals left, whilst tilt was restricted to the left. She complains of pain in the upper back at the end of rotation and left lateral tilt.
Neurological examination of the upper and lower limbs was normal.
The claimant falls into DRE Cervical Category II (AMA5, page 392, table 15-5). There is localised tenderness in the cervical spine and asymmetric loss of range of movement. DRE Category II of the cervical spine is 5 – 8% WPI. The claimant has difficulty with recreational activities and doing the heavier house chores, but is independent in self-care. I assess 2% WPI for ADLs. I therefore assess 7% WPI for the cervical spine. In my opinion no deduction is applicable for pre-existing condition.
In the thoracic spine I also found tenderness and asymmetric loss of range of movement. The claimant falls into DRE Thoracic Category II. (AMA5, page 389, table 15-4). I assess 5% WPI. No ADLs are attributed to the thoracic spine as they were allocated to the cervical spine. No deduction is applicable for pre-existing condition.
4. Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.”
The Appeal Panel adopts the report and findings of Medical Assessor Mastroianni. The Appeal Panel assesses the appellant as DRE Category II of the cervical spine and DRE Category II of the thoracic spine. Medical Assessor Mastroianni obtained a detailed history concerning interference with ADLs and in particular restriction in the performance of housework. The Appeal Panel therefore assess 2% WPI for ADLs which is added to the assessment for the cervical spine and results in an assessment of 7% WPI for the cervical spine. The Appeal Panel assesses 5% WPI for the thoracic spine. The total combined assessment is 12% WPI as a result of the injury on 1 July 2022.
In summary, the assessment of total WPI by the Appeal Panel is the same as that made by the Medical Assessor. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
In summary, the assessment of total WPI by the Panel was the same as that made by the AMS. In those circumstances the Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel has determined that the MAC issued on 22 July 2024 should be confirmed.
0