Leslie v Bidaid (Tamworth) Pty Ltd
[2022] NSWPICMP 95
•22 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Leslie v Bidaid (Tamworth) Pty Ltd [2022] NSWPICMP 95 |
| APPELLANT: | Mervyn James Leslie |
| RESPONDENT: | Bidaid (Tamworth) Pty Ltd |
| APPEAL PANEL: | Member Marshal Douglas Dr James Bodel Dr Margaret Gibson |
| DATE OF DECISION: | 22 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant worker suffered injury to his lumbar spine and subsequently had a right sided L5/S1 foraminotomy and discectomy; Medical Assessor (MA) assessed appellant’s impairment correlated with the criteria for DRE Lumbar Category III; MA assessed that the effect of the appellant’s injury on ADLs warranted an additional 2% whole person impairment (WPI); appellant submitted MA was in error by not concluding he met the criteria for DRE Lumbar Category IV and by not adding an additional 3% WPI for the effect of his injury on his ADLs; Appeal Panel held that appellant did not meet the criteria for DRE Lumbar Category IV and MA correctly assessed the appellant as being with DRE Lumbar Category III; Held- by the Appeal Panel that the effect of the appellant’s injury on his ADLs was such that the MA erred by not adding an additional 3% WPI; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 December 2021 Mervyn James Leslie (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 17 November 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The 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
The appellant commenced employment with Bidaid (Tamworth) Pty Ltd (the respondent) around 2002, working as an egg collector. On 20 December 2005 he was working at a fast tempo when he lost his footing whilst stepping over a feed trail lying on the ground. This caused him to strike his lower back on a waterline, and suffer an injury to his lumbar spine. He was treated conservatively until 23 January 2018, at which Professor Ghabrial undertook surgery in the form of a right sided L5/S1 foraminal disc excision.
On 20 December 2019 the appellant’s solicitors notified the respondent’s insurer that the appellant claimed compensation from the respondent in the amount of $40,000 for 25% whole person impairment (WPI) resulting from his injury. The appellant relied upon a report of Dr Hopcroft, a general surgeon, who had examined the appellant on 13 June 2019 and assessed the appellant’s permanent impairment from his injury to be 25% WPI. In that report Dr Hopcroft explained that he accepted an assessment Professor Joe Ghabrial had made of the appellant’s permanent impairment. That was a reference to an assessment Professor Ghabrial had made on 20 February 2018, and which he detailed in a report of that date addressed “to whom it may concern”, wherein Professor Ghabrial said the following:
“Mr Leslie has been suffering from lower back pain and right sciatica.
He had right LS/S 1 disc excision with improvement of his acute symptoms.
His x-rays performed prior to surgery showed no movement at all at the LS/SI segment.
I have assessed the Whole Person Impairment according AMA 5, DRE Category 4 (loss of movement at ·the LS/SI segment) at 22%.
Another I% is added for scar, assessed according to TEMSKI.
That equates to a total of 23% Whole Person Impairment.”
Dr Hopcroft in his report of 13 June 2019 did not assess the appellant to have WPI from scarring but explained the appellant, with gradually increasing post operative radicular symptoms, had accrued “a further whole person impairment of 3%” which explained why his assessment of the appellant’s WPI was higher than the assessment Professor Ghabrial had made.
Subsequent to the appellant making his claim, the respondent’s solicitors arranged for the appellant to be examined by orthopaedic surgeon Dr Frank Machart on 30 March 2020. Dr Machart reported to the respondent’s solicitors on that date that he assessed the appellant had an overall impairment relating to his lumbar spine of 15% WPI. He provided the following explanation:
“DRE Ill category, lumbar laminectomy. Impact on AOL's 2%. Subtotal 12%.
Radiculopathy persist after surgery at 3% combined with 12% at 15%.”
Dr Machart further advised that he considered the appellant’s symptoms and pathology were not purely the result of the injury the appellant had suffered on 20 December 2005 and that part of it was due to “three level disc disease”. He made an allowance for that and advised that he considered the appellant’s WPI resulting from his injury was 14%.
On 27 April 2020 the insurer wrote to the appellant care of his solicitors offering to pay him $18,500 as compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 14% WPI relating to the impairment of his lumbar spine and scarring from his injury. The insurer advised that it relied upon Dr Machart’s report of 30 March 2020.
The appellant then filed in the Personal Injury Commission (the Commission) an Application to Resolve a Dispute seeking determination of his claim against the respondent. The matter was referred to the MA to assess several medical disputes, the key one being the degree of the appellant’s permanent impairment from his injury.
As indicated above, the MA issued the MAC on 17 November 2021. He certified the degree of the appellant’s permanent impairment resulting from his injury to be 15% WPI.
The Appeal Panel also notes by way of background that in proceedings the appellant previously initiated against the respondent in the then Workers Compensation Commission, bearing matter number 2085/18, a medical dispute relating to whether the degree of the appellant’s permanent impairment from his injury is fully ascertainable had twice been referred to the MA. The MA in response to both those prior referrals certified that the appellant’s condition had not stabilised and that the appellant had not reached maximum medical improvement such that the degree of his permanent impairment was not fully ascertainable.
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, notwithstanding that the Appeal Panel found, for reasons explained below, the MAC did contain a demonstrable error, the Appeal Panel considered the material before it was sufficient for it to determine the appeal and to correct that error.
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.
MEDICAL ASSESSMENT CERTIFICATE
The MA obtained a history with respect to the appellant’s injury that included the treatment he had undergone. The MA noted the surgery the appellant had on 23 January 2018 when Professor Ghabrial performed a right sided L5/S1 foraminotomy and discectomy. The MA noted that that surgery provided the appellant initial improvement but as time went on the appellant’s condition deteriorated and the appellant experienced radiation down both his right leg and left leg. The MA noted that subsequent to the times he had previously examined the appellant, so as to determine whether the appellant’s permanent impairment was fully ascertainable, a further MRI scan had been done of the appellant’s lumbar spine but the results of that investigation were not available to him. The MA noted that some of the details of that MRI scan were detailed in the various reports that had been provided to him by the Commission and these suggested “that there is scar tissue on the right side causing irritation of the right S1 nerve root”.
The MA recorded the following findings from his examination of the appellant:
“Mr Leslie was of average stature and build. With his current height of 1.67m and weight of 69kg, he currently has a body mass index of 24, which is within the healthy level of BMI. He was physically very deconditioned and also was in a great deal of discomfort with his lower back. Every effort was made to place him at his ease.
Back. As described before, the longitudinal surgical scar in his lumbar spine had healed well. The spinal curvatures were normal. There was no scoliosis or muscle spasm. The lower back was tender. On forward flexion he could only reach his mid-thighs with a McRae-Wright movement of 3cm. This is very stiff. 5cm is the lower limit of normal.
Extension was minimal. Lateral flexion and rotation to each side were all grossly reduced to one-third of the range.
Lower Limbs. Mr Leslie walked reasonably normally, although very cautiously. He was
just about able to stand on his heels and toes but could not squat.
The legs were equivalent in length. The right thigh was 1cm less in circumference than the left. The right calf was 0.5cm less. Sensation to pinprick was globally reduced in the right leg (as before) and also over the medial side of the left lower leg. The only place where he had reasonable sensation was over the dorsum of his left foot and over the lateral surface of the left lower leg and ankle.
Reflexes were present and equivalent at the knees (L4). At the ankles, the right sided reflex (S1) was just present. On the left side, the reflex was completely absent.
Power of the extensor hallucis longus was present and equivalent.
He was unable to carry out a straight leg raise in the supine position. While sitting on the edge of the couch he did his best to extend his knees but was unable to manage full extension due to increasing tension signs in his lower back.”
The MA provided the following explanation for his assessment that the appellant had 15% WPI resulting from his injury to his lumbar spine:
“Mr Leslie has had surgery at one level (L5/S1) for a discectomy and foraminotomy. This places him into DRE Lumbar Category III, which carries a whole person impairment ranging between 10% and 13%, depending on the activities of daily living. These are grossly reduced and a further 2% is assessed as appropriate. This therefore gives him a whole person impairment of 12%.
According to the SIRA Guidelines Page 29 Table 4.2, with continuing radiculopathy there is a further 3% WPI. This is combined with the 12%, which gives a total of 15%.”
The MA noted that Dr Machart had made a deduction of 1/10th when assessing the appellant’s WPI from his injury on account of the appellant having a pre-existing degenerative condition. The MA said, with respect to that, that “I am not persuaded that this is appropriate”. The MA explained that prior to the appellant suffering injury in December 2005 he had “absolutely no issues at all with his back”. The MA said that because of that he was “not persuaded” that there was any prior condition contributing to the appellant’s WPI.
The MA said that he had “studied in detail” all the documents that the Commission had referred to him, and he listed certain of those documents he considered were of particular relevance. The MA said that he had based his assessment on a “detailed review of the file”, his “detailed clinical assessment” and his “review of the description of recent radiological investigation”. The MA did not in the MAC made any specific reference to the assessments that Dr Hopcroft or Professor Ghabrial had made of the appellant’s impairment in their respective reports of 13 June 2019 and 22 February 2018.
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 did not take into account the assessments that both Dr Hopcroft and Professor Ghabrial had made of his permanent impairment and the MA did not explain in the MAC why he did not do so. The appellant submitted that the MA also did not explain “why the approach of Professor Ghabrial is erroneous”. The appellant submitted that Table 15-3 of the AMA 5 allowed for an assessment to be made based on the DRE Lumbar Category IV because there is “a complete loss or near complete loss of a motion segment due to developmental fusion”. The appellant submitted that there was evidence on MRI scanning that there was a reduction in height of his L3/4 and L5/S1 disc.
In the alternative, the appellant submitted that if his impairment was to be assessed by reference to DRE Lumbar Category III then the MA erred by not adding 3% WPI for the effect his injury has on his activities of daily living.
In reply, the respondent submitted that there was no requirement for the MA to make specific reference to each piece of evidence before him. The respondent submitted that there was no evidence to substantiate that the MA failed to have regard to the assessments Dr Hopcroft and Professor Ghabrial. The respondent submitted that the Guidelines require that motion of individual spine segments be evaluated by reference to flexion and extension radiography and in the material before the MA there was no flexion and extension radiography such that an assessment of impairment due to loss of motion segment integrity could be made.
The respondent submitted that the MA correctly assessed the appellant’s WPI by reference to the criteria for a DRE Lumbar Category III.
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.
The Guidelines at [4.14]-[4.16] instruct as follows:
“4.14 Motion of the individual spine segments cannot be determined by a physical examination, but is evaluated with flexion and extension radiography.
4.15 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.
4.16 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.”
The criteria listed within Table 15-3 of AMA 5 for an assessment of a worker’s permanent impairment to fall within DRE Lumbar Category IV based on loss of motion segment are as follows:
“Loss of motion segment integrity defined from flexion and extension radiographs as at least 4.5 mm of translation of one vertebra on another or angular motion greater than 15° at L1-2, L2-3, and L3-4, greater than 20° at L4-5, and greater than 25° at L5-S1 (Figure 15-3); may have complete or near complete loss of motion of a motion segment due to developmental fusion, or successful or unsuccessful attempt at surgical arthrodesis.”
The respondent’s submissions are correct insofar as the material before the MA did not contain any flexion or extension radiography or any reports on the same. Further there was nothing within the material that revealed that the appellant had complete or near complete loss of motion segment due to development fusion or due to successful or unsuccessful attempts at surgical arthrodesis. Indeed, the evidence indicated that surgical arthrodesis had not been attempted.
Consequently, the appellant did not comply with the relevant paragraphs of the Guidelines or the criteria specified with DRE Lumbar Category IV in order to be assessed within DRE Lumbar Category IV.
The fact that an MRI scan shows a reduction in height of the appellant’s L3/L4 and L5/S1 disc does not demonstrate that the appellant has loss of motion segment integrity.
A MA is required by s325(2)(c) to set out his or her reasons for the assessment of a worker’s permanent impairment. That requires the MA to reveal the reasoning by which he or she arrived at his or her assessment.[1] If the opinions of other assessors or examiners have influenced the MA’s assessment, then the MA would be required to explain that. But in the Appeal Panel’s view, if the opinion of another had no relevance or had no influence in how the MA arrived at his or her opinion, the MA does not need to, and moreover is not required to explain why his or her opinion differs from the other examiner’s assessment. To repeat, in slightly different words, the obligation of the MA is only to reveal the pathway by which she or he formed his or her opinion with respect to the assessment the MA has done, and the MA does not need to explain why that might differ from the reasoning of others.
[1] See Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA43, 22 CLR 480 applied by Harrison AJ in Broad Spectrum (Australia) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
In this case the MA has said that he has studied in detail all the documents the Commission sent him and he highlighted those that were of particular relevance with respect to his assessment. The clear inference from that is that he did not consider the assessments Dr Hopcroft and Professor Ghabrial had made of the appellant’s assessment were relevant to his assessment of the appellant’s impairment. And indeed, that is obviously the case given the MA considered that the appellant’s impairment correlated with the criteria of DRE Lumbar Category III, rather than DRE Lumbar Category IV that Dr Hopcroft and Professor Ghabrial considered it did.
In the Appeal Panel’s view the MA did not err by not specifically referring to the assessments of Dr Hopcroft and Professor Ghabrial. The MA’s obligation to expose the actual part of his reasoning did not require him to explain explicitly why his assessment differed from the assessments of Dr Hopcroft and Professor Ghabrial.
With respect to the MA only adding 2% WPI to the baseline of 10% WPI provided for an assessment based on DRE Lumbar Category III, the Appeal Panel considers that the MA did make an error. In the statement that the appellant signed on 13 May 2021 he detailed at [23]-[26] the effects that his injury has had on his ability to undertake activities of daily living. This included that he is unable to perform any domestic task around his home and can no longer maintain his property. He said he has difficulty dressing himself including difficulty putting on his shoes and socks. He said that he needs assistance from a carer to shower and has had handrails installed in his bathroom. He said that he experiences difficulty in washing his cloths and hanging them out to dry. He said that he is unable to mop, sweep or vacuum or make beds.
In those circumstances, the Appeal Panel considers that it was not open to the MA only to include 2% for the effect that the appellant’s injury has on his activities of daily living. In the Appeal Panel’s view, and consistent with the instructions provided within [4.33]-[4.35] of the Guidelines, the correct and only assessment to have made was that 3% WPI be added to baseline 10% allowed under DRE Lumbar Category III.
The Appeal Panel considers that the MA was correct to add 3% WPI in accordance with Table 4.2 in [4.37] as the appellant has continuing radiculopathy after his surgery, Neither party contended otherwise. Hence, the Appeal Panel assesses the appellant has 16% WPI from his injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 November 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Tim Anderson 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) |
| Lumbar spine | 20/12/05 | Chap 4 | Chap 15; T15-03 | 16% | - | 16% |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
Marshal Douglas
Member
James Bodel
Medical Assessor
Margaret Gibson
Medical Assessor
22 April 2022
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