Laws v Crystal Pools Pty Ltd
[2022] NSWPICMP 333
•19 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Laws v Crystal Pools Pty Ltd [2022] NSWPICMP 333 |
| APPELLANT: | Trevor Laws |
| RESPONDENT: | Crystal Pools Pty Ltd |
| Appeal Panel: | Member Marshal Douglas Medical Assessor James Bodel Medical Assessor Gregory McGroder |
| DATE OF DECISION: | 19 August 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appellant worker referred for assessment of whole person impairment (WPI) resulting from lumbar spine injury; appellant submitted in his appeal against the Medical Assessment Certificate (MAC) that the Medical Assessor (MA) did conduct adequate examination and that MA’s explanation for assessment did not adequately expose MA’s reasons for finding criteria of [4.27] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) not met and why the effect of injury on ADLs warranted 2% WPI rather than 3%; Held — MA did not examine appellant with respect to one criterion of [4.27] but that error did not affect outcome as appellant did not meet any of the other criteria; Appeal Panel found that MA provided no explanation for assessing appellant’s ADLs as 2% WPI but that error also did not affect outcome as evidence only warranted 2% WPI; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 June 2022 Trevor Laws, 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 (MA), who issued a Medical Assessment Certificate (MAC) on
11 May 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, 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.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Crystal Pools Pty Ltd, the respondent, employed the appellant as a pool technician. The appellant injured his lumbar spine as a consequence of incidents that occurred on
16 February 2015 and 20 March 2017 whilst he was working for the respondent.Relying on a report of orthopaedic and spinal surgeon Dr Charles New dated 21 June 2021, who had examined the appellant on 16 June 2021 and who had assessed the appellant to have 12% whole person impairment (WPI) from his injury, the appellant, through his solicitors, claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act). The respondent, relying on a report from orthopaedic surgeon Dr Alexander Woo dated 30 October 2021, who had examined the appellant on 26 October 2021 and assessed the appellant to have 6% WPI from his injury, declined the appellant’s claim.
On 15 February 2022 the appellant commenced proceedings in the Personal Injury Commission (the Commission) seeking determination of his claim against the respondent for compensation under s 66 of the 1987 Act for 12% WPI.
On 4 March 2022 a delegate of the President issued a referral to the MA to assess the medical dispute between the parties was defined in the referral in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
·the degree of permanent impairment of the worker as a result of an injury
(s319(c))
·whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
·whether impairment is permanent (s319(f))
·whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 20 March 2017
Body part/s referred: Lumbar Spine
Method of assessment: Whole Person Impairment”
The MA examined the appellant on 29 April 2022 and, as mentioned issued the MAC in response to the referral on 11 May 2022. In that he certified that the appellant had 6% WPI resulting from the injury to his lumbar spine.
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 WorkCover Medical Assessment Guidelines 2006.
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. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.
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.
MEDICAL ASSESSMENT CERTIFICATE
The MA set out a brief history in the MAC relating to the circumstances in which the appellant suffered injury to his lumbar spine. The MA noted that the appellant no longer works because of the pain from his injury and that the appellant suffers pain all day long predominantly in his lower back and left hand side and that the pain radiates up towards his shoulders. The MA noted that the appellant also experiences pain radiating down the lateral aspects of his legs and intermittently gets symptoms into his arms. The MA noted that the appellant’s walking endurance was limited to 10 minutes, at which time the appellant has to stop walking because of aching in his back and a feeling of tightness in his legs. The MA noted that the appellant struggles to mow his lawns.
The MA noted that the appellant did not bring to the examination any imaging but the MA was able to review an MRI study done on 7 June 2019 through the PRP PACS site. The MA noted that study revealed generalised degenerative disease in the appellant’s lumbar spine, L4/5 lateral recessed stenosis and lesser L2/3 central stenosis.
The MA recorded making the following findings from his examination of the appellant:
“On examination Mr Laws stands with a slightly flexed position. Trendelenburg’s test was normal. Heel-toe stance was normal. Neurological examination of the lower limbs
demonstrated symmetrical knee and ankle reflexes with downgoing Babinski. Peripheral power was intact. Straight leg raise was to 80° bilaterally without tension signs. Hip range of motion and Faber’s test were non-irritable. Peripheral pulses were present.”
The MA assessed the appellant to have an overall WPI of 7% WPI due to his lumbar spine and provided the following explanation for that assessment:
“Mr Laws has restricted asymmetrical range of motion in his lumbar spine with a history of injury consistent with aggravating underlying degenerative disease seen on his imaging. According to AMA 5 page 384, Table 15.3, I assess him as DRE Lumbar Category II (5% whole person impairment).
According to SIRA Guidelines page 28, paragraph 4.34 I assess a further 2% impairment for restrictions of activities of daily living. Whilst Mr Laws has some symptoms radiating into his legs which are consistent with claudication, he does not meet the criteria listed on SIRA page 27, paragraph 4.27 for the assessment of radiculopathy.”
The MA considered that the appellant had a pre-existing condition of degenerative spondylosis in his lumbar spine and that a proportion of the appellant’s overall WPI was due to that condition. The MA considered it would be difficult and costly to determine the exact extent to which that prior condition contributed to the appellant’s overall WPI and, in accordance with s 323(2), he assumed the proportion was 1/10th. Consequently, the MA assessed the appellant’s WPI from his injury to be 6%.
The MA noted that his assessment of the appellant’s WPI differed from the assessment
Dr New had made and the reason for that difference was that he had not detected radiculopathy on his assessment of the appellant, whereas Dr New had, and he had assessed the appellant as having 2% WPI for the restriction of the appellant’s activities of daily living whereas Dr New had assessed that to be 3% WPI. The MA also noted that his assessment of the appellant also differed from Dr Woo in that Dr Woo had also assessed the appellant to have 3% WPI due to the restrictions of daily living.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the MA failed to provide adequate reasons for finding that he did not meet the criteria for radiculopathy. The appellant submitted that the MA did not provide any reason for correlating his impairment with the criteria for DRE Lumbar Category II. The appellant submitted the MA did not provide adequate reasons for assessing him to have only a further 2%, rather than 3% WPI, for the effect of his injury on his activities of daily living. The appellant submitted that the MA’s examination of him was inadequate and that the only testing the MA undertook during examination of him was to request him to take off his shoes, to stand on his toes and to hold his hands whilst assisting him to balance on a foot. The appellant contended that the MA advised him that he did not believe in MRI scans. The appellant contended that the examination lasted approximately 20 minutes.
In reply, the respondent submitted that the submissions of the appellant relating to the inadequacy of the examination should be disregarded as they constitute “hearsay evidence” and are inappropriate. The respondent submitted that the appellant’s submissions only cavil with the clinical findings and judgment of the MA regarding whether there was evidence of radiculopathy. The respondent submitted that the MA provided adequate reasons for finding the appellant did not have radiculopathy. The respondent submitted that the MA provided reasons for his assessment that the appellant’s impairment with respect to activities of daily living was 2% WPI.
The Appeal Panel observes that there is no evidence before it, such as a signed statement from the appellant, relating to the submissions the appellant made regarding the MA’s examination of him and regarding the MA saying that he did not believe in MRI scans. Even if there was, the Appeal Panel would not have received it into evidence. That is because notwithstanding such evidence, if it existed, being fresh evidence that was not available to the appellant before the medical assessment, the Appeal Panel nevertheless retains a discretion under s 328(3) of the 1998 Act not to receive such evidence[1] and such evidence would lack prohibitive value. It would lack prohibitive value because the appellant has no experience in clinical matters or clinical expertise so as to know what is required to conduct a clinical examination. Further, it is apparent to the Appeal Panel, as will be explained more fully below, that with the exception of one issue, the MA examined the appellant with respect to all matters necessary for the purpose of assessing the medical dispute referred to him.
[1] Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA per Handley AJA at [102].
Further, it is apparent that the MA obtained access to a relevant MRI scan, seemingly relying on his power under s 324(1) of the 1998 Act, to ensure he was able to assess the medical dispute referred to him. That defies the contention of the appellant that the MA did not believe in MRI scans.
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.
Section 325(2)(c) and (d) of the 1998 Act requires a MA to set out within the MAC his or her reasons for the assessment he or she has made of the matters referred for assessment and to set out the facts on which the assessment is based. The reasons must be sufficient to reveal the actual path by which the MA arrives at his or her assessment.[2]
[2] See Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA43 at [55] (Kocak) and Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC1320 at [73] – [79].
The MA’s reasons for assessing the appellant’s impairment of his lumbar spine met the criteria of DRE Lumbar Category II were that the appellant had asymmetrical range of movement of his lumbar spine and had a history of injury. The MA explained that the injury was the aggravation of pre-existing underlying degenerative disease, which disease was revealed by the MRI scan to which the MA obtained access. The MA explained that the appellant had some symptoms radiating into his legs, consistent with claudication, but those signs do not meet the criteria stipulated in [4.27] of the Guideline to allow a finding to be made that the appellant had radiculopathy.
Paragraph 4.18 of the Guidelines reads as follows:
“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.”
The MA’s reasoning as to why the appellant met the criteria of DRE Lumbar Category II was brief but his reasoning clearly revealed why he found the appellant fell within DRE Lumbar Category II. The MA addressed all elements required for an assessment to be made that the appellant fulfilled the criteria for DRE Lumbar Category II.
With respect to the MA’s conclusion that the appellant did not fulfil the criteria for a finding of radiculopathy, the Appeal Panel observes that [4.27] and [4.28] of the Guidelines stipulate the criteria to enable such a finding to be made. Those paragraphs read as follows:
“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 (Box 15-1, p 382, AMA5)
• Muscle wasting – atrophy (Box 15-1, p 382, AMA5)
• Findings on an imaging study consistent with the clinical signs (p 382, AMA5)
4.28 Note that radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain), do not alone constitute radiculopathy.”
(Bold as per original)
The MA found from his examination of the appellant that the appellant had symmetrical knee and ankle reflexes with downgoing Babinski. That finding indicates that the MA examined the appellant to determine whether the appellant had loss or asymmetry of reflexes. The MA found from his examination of the appellant that the appellant’s peripheral power was intact. That finding indicates that the MA examined the appellant to determine whether the appellant had muscle weakness that was anatomically localised to an appropriate spinal nerve root distribution and whether the appellant had muscle wasting. The fact that the appellant’s peripheral power was intact means that the appellant exhibited neither of those signs at examination. The MA found that the appellant had demonstrated straight leg raising to 800 bilaterally without tension signs. That finding demonstrates that the MA examined the appellant to determine whether the appellant had positive nerve root tension and his finding demonstrates that the appellant did not.
The MA viewed the MRI of the appellant’s lumbar spine done on 7 June 2019 which revealed degenerative disease in the lumbar spine L4/5 lateral recess stenosis and less at L2/3 central stenosis. That imaging study does not indicate any pathology affecting the appellant’s spinal nerve roots.
The Appeal Panel notes that nowhere within the MAC did the MA indicate any finding he made from examination relating to whether the appellant had any impairment of a sensation anatomically localised to an appropriate spinal nerve root distribution.
The fact that the MA set out in the MAC his findings with respect to all the criteria stipulated in [4.27] of the Guidelines relating to whether a finding could be made that the appellant has radiculopathy, other than the criteria for reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution, indicates, in the Panel’s view, that the MA did not consider the specific criterion of reproducible impairment of sensation. That is, the MA overlooked it.
All of the criteria listed in [4.27] must be considered. The fact that the MA overlooked the specific criterion of impairment of sensation was an error on the part of the MA.[3] As a consequence of that, the MAC contains a demonstrable error.
[3] See Peachey v Bildon Pty Ltd (Quality Siesta Resort Ltd & Quality Hotel) [2020] NSWSC 781 at [50]; SZCBT v Minister for Immigration & Multicultural Affairs [2017] FCA 9 at [26].
However, that error on the part of the MAC does not result in an error in the outcome. The fact that the MA erred by not examining the appellant for that particular sign means it cannot be known whether at the time of the assessment the appellant exhibited that sign or not. But even if he had exhibited the sign the MA would still have been unable to make a finding that the appellant had radiculopathy, because even if the appellant exhibited the sign he would still have only met one criterion only of all the criteria specified within [4.27] whereas [4.27] requires that two criteria be met.
With respect to the appellant’s submission regarding the MA’s inadequate reasoning for the MA assessing him to have 2% WPI for the effect of his injury on his activities of daily living, the Appeal Panel observes that the relevant criteria by which that matter must be assessed is contained within [4.33] – [4.35] of the Guidelines. The MA, in the Appeal Panel’s view, did not disclose his reasoning as to why he assessed the appellant to have 2% WPI for restrictions of activities of daily living. All the MA did was merely state that 2% WPI is what he assessed the appellant’s impairment was with respect to this. That explanation did not comply with the requirement of s 325(1) of the 1998 Act or with the authority of Kocak. That also amounts to an error on the part of the MA, and a demonstrable error within the MAC.
However, in the Appeal Panel’s view, that error also does not result in an error in the ultimate outcome.
The Appeal Panel observes that the MA noted that the appellant struggles to mow his lawns and is no longer able to renovate houses and restore cars that the appellant previously enjoyed doing. In his statement that he signed on 10 February 2022 the appellant noted that he previously enjoyed driving cars, building sheds and gardening. He said that he can no longer engage in those activities as a consequence of his injury. He said that he was unable to perform any strenuous domestic duties.
The Appeal Panel also observes that Dr Woo obtained a history that included the appellant having no problem with his personal care, but being unable to perform household tasks and building sheds. Dr Woo’s history included that the appellant was able to do a little gardening. The Appeal Panel notes that the history Dr New obtained regarding the appellant’s ability to engage in activities of daily living revealed the appellant was able to attend to his personal care but had restricted ability to engage in recreational activities as a consequence of the pain from his injury.
In the Appeal Panel’s view, and bearing in mind the criteria set out in [4.33] – [4.35] the effect of the appellant’s injury on his activities of daily living is such that he has a 2% WPI. This is because the appellant is able to undertake personal care activities, but has restricted ability to engage in household and domestic tasks and engage in gardening and recreational activities.
In summary, the Appeal Panel considers the MAC does contains demonstrable errors, in that the MA did not have regard to one of the criterion required to be considered to assess whether the appellant had radiculopathy and did not provide any reasoning with respect to his finding that the appellant’s impairment with respect to his activities of daily living was 2% WPI. Notwithstanding those errors, the Appeal Panel is satisfied that the findings the MA did record from his examination of the appellant coupled with what the MRI study revealed was such that the criteria of [4.27] of the Guidelines could not be met to enable a finding to be made that the appellant had radiculopathy. The appellant was correctly assessed within DRE Lumbar Category II. Based on the evidence before the Appeal Panel, the effect of the appellant’s injury on his activities of daily living is such that he has 2% WPI relating to that.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 May 2022 should be confirmed.
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