Lane v AM Fretwell & Ms Fretwell

DETERMINATION OF APPEAL PANEL
CITATION:	Lane v AM Fretwell & MS Fretwell [2023] NSWPICMP 456
APPELLANT:	Jonathan William Lane
RESPONDENT:	Ashley M Fretwell & Miriam S Fretwell t/as A M & M S Fretwell
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	14 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal against assessment of 0% whole person impairment (WPI) in the appellant’s thoracic spine; incorrect criteria and demonstrable error; fresh evidence not admitted; allegation that Medical Assessor failed to have regard to radiology demonstrating displacement at the appellant’s thoracic spine transverse process fractures; error found based on 12 June 2014 CT radiology; Panel assessed 5% WPI in the appellant’s thoracic spine based on clause 4.31 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 and Table 15-4 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed; Held – Medical Assessment Certificate revoked and new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 June 2023, Jonathan Lane (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the appeal). The medical dispute subject to the decision had been assessed by Medical Assessor Rob Kuru (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 24 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 President’s delegate is satisfied that, solely on the face of the appeal, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and conducted a review of the original medical assessment, but limited to the grounds of appeal in relation to which the appeal is made.
The Appeal Panel is required to only address the subject matter of the grounds of appeal. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 set out the practice and procedure in relation to the 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 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.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) as it modifies the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant is 58-years-old, and as at 11 March 2014, he was employed by Ashley M Fretwell & Miriam S Fretwell t/as A M & M S Fretwell (the respondent) as a truck driver.
He was involved in a motor vehicle accident during the course of his employment with the respondent on 11 March 2014, in which he suffered injuries to his ribs, forehead, lungs, left shoulder, left calf, and left hip. He has provided a statement dated 20 April 2020, in which he advises that he also suffered “multiple fractures of the transverse processes in my thoracic and lumbar spine from T6 to L3” (at page 4 of his Application to Resolve a Dispute (ARD)).
After the accident, he was initially treated at Dubbo Base Hospital, but discharged on
13 March 2014. He was then treated conservatively, but re-admitted to Dubbo Base Hospital on 17 June 2014, when a significant amount of fluid was drained from his left lung, following his complaints of breathing difficulties.
He then consulted with Dr Spittaler (neurosurgeon), who initially did not recommend spinal surgery. He went through pain management with Dr Russo, which involved a series of injections, the prescription of medication, and then the insertion of a spinal stimulator.
By early 2019, due to ongoing lumbar spine pain, he was referred back to Dr Spittaler, who now recommended spinal surgery. The doctor eventually proceeded with a L3/4 posterior interbody fusion on 17 November 2020.
By letter dated 4 April 2022 (at page 35 the ARD), the appellant formally claimed lump sum compensation from the respondent, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). He relied upon an assessment of his whole person impairment undertaken by Dr Bodel.
The respondent arranged for the appellant to be assessed by Dr Bosanquet, and by a letter from its solicitors dated 14 July 2022, it disputed the extent of the appellant’s whole person impairment, while making a counter-offer in an attempt to resolve the claim pursuant to s 66 of the 1987 Act.
The claim pursuant to s 66 of the 1987 Act was not able to be resolved through negotiations between the parties, and as a result, the appellant lodged his ARD with the Personal Injury Commission (Commission) on 8 November 2022. The ARD claims compensation pursuant to s 66 of the 1987 Act in relation to the ‘systems claimed’ as being – lumbar spine, thoracic spine, left upper extremity, TEMSKI/scarring.
The ARD was listed by the Commission for a preliminary conference before Member Sweeney on 15 December 2022, following which the Member issued a Certificate of Determination – Consent Orders. Order 2 related to the referral of the appellant to the Medical Assessor, and reads as follows:
“Remit the matter to the President for referral to a Medical Assessor after 15 February 2023 to certify the degree of whole person impairment, if any, as a result of injuries to the lumbar and thoracic spines, left upper extremity (shoulder), and scarring on 11 March 2014.”

PRELIMINARY REVIEW

The Appeal Panel has conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because it possessed sufficient evidence within the documentary evidence before it in order to be able to determine the appeal.
For the sake of completeness however, the Appeal Panel notes that attached to the appeal was a further statement from the appellant dated 13 June 2023 (that was not available to the Medical Assessor). However, not only does the appeal specifically advise that the appellant does not seek leave to rely on additional relevant information, but the appellant has not complied with cl 17 of Procedural Direction PIC7 (which he would have needed to in order for this statement to be considered by the Appeal Panel).
The Appeal Panel has therefore not considered the statement and determines it to be evidence that should not be received on the appeal.

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:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents;
(c)    the applicant’s Application to Admit Late Documents (applicant’s AALD) dated
8 December 2022 and attached documents;
(d)    the respondent’s Application to Admit Late Documents (respondent’s AALD) dated 10 February 2023 and attached documents;
(e)    the Certificate of Determination issued by Member Sweeney dated
15 December 2022 - see paragraph 16 above, and
(f)    the amended referral from the President’s delegate to the Medical Assessor dated 28 March 2023.

Medical Assessment Certificate

The parts of the MAC given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
It is unnecessary to refer to the MAC in detail given the limited nature of this appeal.
In relation to the appellant’s thoracic spine:
(a)    the Medical Assessor takes a history (page 2 of the MAC) of radiology (a CT scan) conducted at Dubbo Base Hospital after his motor vehicle accident, and that “demonstrated a left sided pleural effusion with fractures of the 7^th and 8^th ribs and undisplaced fractures of the T8, T9 and T10 transverse processes”;
(b)    he later takes a history (page 2 of the MAC) that after the appellant again attended Dubbo Base Hospital for drainage of his pleural effusion, he “also had MRIs of his whole spine which did not demonstrate significant underlying pathology”;
(c)    he then summarises (page 3 of the MAC) a thoracic spine CT scan that the appellant underwent on 8 February 2019 as – “Leads from spinal cord stimulator in place. No evidence of injury”, and
(d)    he also notes (page 2 of the MAC) that after the appellant consulted with
Dr Spittaler in April 2019, “subsequent MRI did not demonstrate significant pathology”.
The Medical Assessor notes (page 2 of the MAC) that the appellant reported “no ongoing symptoms in the thoracic spine and was not undertaking treatment for it”.
The Medical Assessor does not refer to any physical examination that he undertook of the appellant’s thoracic spine.
The Medical Assessor assesses the whole person impairment in the appellant’s thoracic spine at 0%, and then summarises (page 5 of the MAC):
“For the thoracic spine, I assess 0% whole person impairment. Mr Lane reported no ongoing pain in the thoracic spine. The CT scan notes fractures of T8, T9 and T10 transverse processes but no comment is made with respect to displacement. The thoracic spine is hence assessed according to AMA-5, page 389, Table 15-4 as DRE Thoracic Category I, 0% whole person impairment…Note: SIRA Guidelines, page 27, paragraph 4.31 assesses impairment for displaced fractures of transverse processes.”
Finally, the Medical Assessor advises that he disagrees with the assessments made by
Drs Bodel and Bosanquet regarding the appellant’s thoracic spine whole person impairment. Specifically in relation to Dr Bosanquet, the Medical Assessor states (page 5 of the MAC):
“I disagree with assessment of the thoracic spine at 5% whole person impairment.
Dr Bosanquet has assessed this on the presumption that the transverse process fractures have been displaced. The report of the CT scan from the date of injury has not reported this.”

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The only finding by the Medical Assessor challenged by the appellant relates to his assessment of the appellant’s thoracic spine whole person impairment. There is no attempt by the appellant to challenge any other aspect of the MAC.
In summary, the appellant submits that his thoracic spine impairment should have been placed into DRE Thoracic Category II, rather than DRE Thoracic Category I “if not due to muscle guarding or asymmetry of motion, then in the alternative due to the findings recorded on the CT scan report dated 12 June 2014 which clearly states that there was displacement of the transverse processes at T8 to T12”.
The appellant complains that the Medical Assessor “did not perform a full and satisfactory examination of his thoracic spine”, and argues that only such an examination would have revealed whether he had any muscle spasm or guarding in that region, or whether he had any lack of sensation in the skin of his chest wall, or whether he had any asymmetric loss of range of movement of the thoracic spine.
In reply, the respondent submits that:
(a)    the Appeal Panel should not consider the appellant’s 13 June 2023 statement – the Appeal Panel has already dealt with this matter (see paragraphs 19-20 above);
(b)    in relation to the appellant’s submission that the Medical Assessor failed to conduct a proper examination of him - “the manner in which the assessment was conducted ought to be presumed to have been conducted in accordance with appropriate practices imposed by the Commission”;
(c)    the Medical Assessor (in accordance with State of NSW (NSW Department of Education) v Kaur [2016] NSWSC 346) does not need to provide extensive reasons and is only required to explain his actual path of reasoning - the MAC must not be scrutinised in a “fine or minute manner”, and
(d)    the Medical Assessor did not need to follow the opinions of either Dr Bodel or
Dr Bosanquet - he is entitled to provide a separate opinion.
Interestingly, the respondent ignored in its submissions the appellant’s position that in his motor vehicle accident, he sustained thoracic spine transverse process fractures with displacement.

FINDINGS AND REASONS

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 Appeal Panel notes that the appellant has undergone significant radiology since
11 March 2014, mainly in relation to his lumbar spine. The first radiology in relation to the thoracic spine occurred on 12 March 2014 at Dubbo Base Hospital, and the report (of
Dr Travis) from that CT scan is found at page 73 of the ARD. The report inter alia states:
“On the left, there is an oblique fracture of the 7th rib which is undisplaced in the posterior axillary line. Similar Injury in the left 8th rib. There is an undisplaced fracture of the left T8 transverse process. Further fracture to the left 9th rib. The left 9th rib is fractured in multiple places posteriorly. In addition, there is a fracture through the left T9 transverse process. Posterior displaced fracture of the left 10th rib. Fracture of the left T10 transverse process. There is a fracture through the neck and mid part of the left 11th rib. The thoracic vertebral bodies, pedicles and laminae are maintained. Normal manubrium and sternum. No spinous process fracture in the thoracic spine.”
The Medical Assessor refers to this radiology (see paragraph 24 (a) above) and notes (see paragraph 27 above) that “no comment is made with respect to displacement”.
The appellant then underwent further radiology in relation to the thoracic spine on
12 June 2014 at Dubbo Base Hospital, and the report (of Dr Ho) from that CT scan is found at page 78 of the ARD. The report inter alia states:
“There appears to be fractures noted in the left transverse processes of T8, T9, T10, T11 and T12…There are also fractures noted in the left ribs posterolaterally from T6 to T12. There is some displacement noted at the transverse process fractures…Bony union is not complete at these fractures of the ribs and the transverse processes…There are fractures of several of the ribs from T6 to T12 in the left side and also at the transverse processes with displacement in the left side from about T8 to T12.”
The Medical Assessor does not refer to this radiology in the MAC.
The second radiology referred to by the Medical Assessor (see paragraph 24 (b) above) seems to correlate with the MRI whole spine and left shoulder report of Dr Tsung dated
15 July 2023 (found at page 87 of the ARD). In relation to the thoracic spine, the report only notes:
“In the thoracic spine, alignment is normal. Vertebral body heights are preserved. Mild disc desiccation. No significant canal or foraminal stenosis. There is a haemangioma in T12 vertebral body.”
The Appeal Panel cannot find a report regarding the third radiology referred to by the Medical Assessor (see paragraph 24 (c) above) that the appellant underwent on 8 February 2019. However, the CT radiology clearly took place, as Dr Bodel refers to it in his 28 February 2020 report (at page 61 of the ARD). Dr Bodel refers to the radiology as demonstrating:
“The transverse process fractures have healed on the left hand side and there is no major external rupture of the discs at any level.”
The final radiology referred to by the Medical Assessor (see paragraph 24 (d) above) seems to correlate with the X-ray spine and MRI lumbar spine report of Dr George dated
9 May 2019 (found at page 110 of the ARD). The report states that the scanning only considered levels from T11 downwards, and in relation to the thoracic spine, it only notes:
“The visualised discs are degenerative at all levels showing slight loss of signal but no reduction in height…Intraosseous haemangioma noted in T12 vertebral body on the left…At T11/12 and T12/L1 no posterior disc bulge or protrusion is seen. The spinal canal and foramina remains patent.”
The appellant points to the clear radiological findings in Dr Ho’s 12 June 2014 report of displacement at the appellant’s thoracic spine transverse process fractures. The Medical Assessor did not take into account these radiological findings.
Instead, the Medical Assessor seems to have relied mainly upon the earlier radiological findings in Dr Travis’ 12 March 2014 report. It is worthy of note that those findings specifically mentioned an undisplaced fracture of the T8 transverse process, but made no comment as to whether the T9 or T10 transverse process fractures were displaced or undisplaced.
The remainder of the radiology relied upon by the Medical Assessor does not record whether the relevant transverse process fractures were displaced or undisplaced (although according to Dr Bodel the 8 February 2019 radiology refers to those fractures as having healed), and is relied upon by the Medical Assessor in order to demonstrate a lack of “significant pathology” in the appellant’s thoracic spine.
In the circumstances, the Appeal Panel is willing to accept the clear findings in Dr Ho’s
12 June 2014 report of displacement at the appellant’s thoracic spine transverse process fractures. The report is only inconsistent with Dr Travis’ 12 March 2014 report in relation to the T8 transverse process fracture, which it finds to be displaced and which Dr Travis finds to be undisplaced. Otherwise, the report is more detailed in relation to the transverse process fractures as it deals with levels T8 to T12 (whereas Dr Travis’ report only deals with levels T8 to T10) and as it specifically deals with whether the transverse process fractures were displaced or undisplaced (which Dr Travis only deals with in relation to the T8 transverse process fracture).
Apart from Dr Ho’s 12 June 2014 report and Dr Travis’ 12 March 2014 report, the Appeal Panel does not find the remainder of the radiological evidence to be persuasive in relation to the specific issue as to whether the appellant’s thoracic spine transverse process fractures were displaced or undisplaced. That issue is not adequately addressed in the remainder of the radiological evidence.
In accepting the radiological findings of Dr Ho, the Appeal Panel finds that the Medical Assessor has made a demonstrable error, in not accepting those findings, or even mentioning them in the MAC.
Clause 4.1 of the Guidelines provides as follows:
“The spine is discussed in Chapter 15 of AMA5 (pp 373–431). That chapter presents two methods of assessment, the diagnosis-related estimates method and the range of motion method. Evaluation of impairment of the spine is only to be done using diagnosis-related estimates (DREs).”

Section 15.5 of AMA 5 deals with the DRE evaluation of impairment of the thoracic spine. It requires the use of Table 15-4 of AMA 5, which states that the following is to be assessed in DRE Thoracic Category II:
“fractures: (1) less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation that has healed without alteration of motion segment integrity or radiculopathy; (3) a spinous or transverse process fracture with displacement, but without a vertebral body fracture.”
Clause 4.31 of the Guidelines also states:
“Displaced fractures of transverse or spinous processes at one or more levels are assessed as DRE category II because the fracture does not disrupt the spinal canal (AMA5, p 385) and does not cause multilevel structural compromise.”
Due to the Appeal Panel’s acceptance that in his motor vehicle accident the appellant sustained thoracic spine transverse process fractures that were displaced, the Appeal Panel finds that his thoracic spine whole person impairment should be assessed as in DRE Thoracic Category II. This was the extent of the appellant’s submissions (see paragraph 31 above) and the Appeal Panel accepts those submissions regarding the finding of the displaced transverse process fractures.
Under Table 15-4 of AMA 5, DRE Thoracic Category II requires an assessment of 5%-8% whole person impairment. In accordance with cl 4.33 of the Guidelines, the extra percentage impairment (from the base of 5%) is to be added having regard to the effect of the appellant’s injury on his activities of daily living. However, cl 4.36 of the Guidelines requires that where more than one spinal region has been injured, the effect of an injury on activities of daily living is assessed only once.
In relation to the appellant’s thoracic spine, there will be no assessment as to the effect of his injury on his activities of daily living, as the Medical Assessor has already (in an unchallenged assessment as to the whole person impairment in the appellant’s lumbar spine) considered that effect and assessed it at 2%.
The level of the appellant’s whole person impairment in his thoracic spine will therefore be assessed at 5% in accordance with the Guidelines and AMA 5.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 May 2023 should be revoked, and a new MAC should be issued. The new MAC maintains the Medical Assessor’s unchallenged whole person impairment findings in relation to the appellant’s lumbar spine, left upper extremity (shoulder), and scarring/TEMSKI; but it substitutes the findings of the Appeal Panel in relation to the whole person impairment to the appellant’s thoracic spine. The new MAC is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7503/22
Applicant:	Jonathan William Lane
Respondent:	Ashley M Fretwell & Miriam S Fretwell t/as A M & M S Fretwell

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 Rob 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	11 March 2014	Page 28 Para 4.34 Page 27 Para 4.27	Page 384 Table 15-3	22	0	22
2.Thoracic spine	11 March 2014	Page 27 Para 4.31	Page 389 Table 15-4	5	0	5
3.Left upper extremity (shoulder)	11 March 2014	Page 12 Para 2.16	2	0	2
4.Scarring/ TEMSKI	11 March 2014	Page 74 Table 14.1	1	0	1
Total % WPI (the Combined Table values of all sub-totals)					28%

[2023] NSWPICMP 456

14 September 2023