Lewis v Secretary, Department of Communities and Justice
[2023] NSWPICMP 328
•18 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lewis v Secretary, Department of Communities and Justice [2023] NSWPICMP 328 |
| APPELLANT: | Wayne Lewis |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 18 July 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Whether Medical Assessor (MA) correctly recorded her findings from her examination of the appellant worker; whether MA erred by assessing appellant had only 3% whole person impairment (WPI) with respect to the ilioinguinal nerve; whether MA erred by assessing appellant had only 2% WPI with respect to the pudendal nerve; Appeal Panel found that when the Medical Assessment Certificate (MAC) considered as a whole, the MA correctly recorded her findings from her examination and that her findings were clear; Appeal Panel found that the MA was correct to assess the appellant had 3% WPI for the ilioinguinal nerve as the appellant had neurogenic pain and sensory alteration in the distribution of the ilioinguinal nerve on the left side only; Appeal Panel found that the MA erred by assessing the appellant had 2% WPI for the pudendal nerve as the appellant had neurogenic pain and sensory alteration bilaterally in the distribution of the pudendal nerve; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 May 2023 Wayne Lewis, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Margaret Gibson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 April 2023.
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.
Rule 128 of the Personal Injury Commission Rules 2021 (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
The appellant suffered a left abdominal injury on 6 December 2006 due to the work he performed in his employment with the Secretary, Department of Communities and Justice (the respondent). Relying on a report of specialist general surgeon, Dr Neil Berry, dated 27 May 2021 he claimed compensation from the respondent’s insurer under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $23,000 for 17% whole person impairment (WPI) that Dr Berry had assessed he had from his injury. Dr Berry explained in his report that his assessment comprised 1% WPI for sensory loss from the ilioinguinal nerves on each side, 3% WPI for dysaesthesia in the distribution of the pudendal nerve on the left and right side, and 9% WPI for multiple recurrent hernias on the left side.
Following receipt of the appellant’s claim the respondent’s solicitor organised for the appellant to be examined by surgeon Dr Phil Truskett on 8 August 2022. In a report of 17 August 2022 Dr Truskett advised he assessed the appellant had 7% WPI. Dr Truskett advised this comprised 1% WPI for loss of sensation due to ilioinguinal nerve damage, 3% WPI for current left inguinal hernia and 3% WPI for recurrent umbilical hernia. Dr Truskett had previously assessed the appellant on 5 July 2019 and in a report of that date advised he had assessed the appellant then had 8% WPI, comprising 2% WPI for ilioinguinal nerve damage (being 1% WPI for each of the left and right side), 3% WPI for recurrence of the left ilioinguinal hernia and 3% WPI for recurrent umbilical hernia. Dr Truskett in his subsequent report of 17 August 2022 explained that the appellant’s ilioinguinal nerve damage was no longer bilateral, and hence why he assessed 1% WPI then, whereas earlier he had assessed the appellant had 2% WPI for this.
On 25 August 2022 the respondent’s insurer wrote to the appellant, care of his solicitors, notifying him under s78 of the 1998 Act that it disputed he was entitled to compensation for permanent impairment. It advised him its reason for that was because Dr Truskett had assessed his permanent impairment to be 7% WPI, which was below the threshold of 10% WPI he was required to have in order to receive compensation for permanent impairment under s 66(1) of the 1987 Act.
Consequently, a medical dispute arose between the parties. On 4 November 2022 the appellant initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation for permanent impairment.
MEDICAL ASSESSMENT CERTIFICATE
As noted, the Medical Assessor issued a MAC in response to that referral on 24 August 2023, in which she certified the appellant had 13% WPI from his injury. The Medical Assessor summarised the appellant’s injury in Part 7 of the MAC in the following terms:
“Mr Lewis is a 66 year old man who had developed a left inguinal hernia after lifting a heavy door a work. He underwent multiple surgical procedures to address the hernia with his recovery being complicated by mesh inguinodynia and chronic groin and perineal pain. He was also diagnosed and treated for incarcerated Spigelian hernia, indirect right inguinal hernia and umbilical hernia. Both the left inguinal and the umbilical hernias had recurred.”
The Medical Assessor made the following findings from her examination of the appellant’s abdomen:
“On examination of the abdomen, there was a well healed 8 cm scar over the lower abdomen and there were barely visible groin incisions. In relation to the scarring there was no visible suture marks, no adherence and no contour defect. There were no masses felt and there was no cough impulse either in the supine position or when standing. There was reduced sensation over the left groin. There was dysesthesia in the perineal region.”
The Medical Assessor provided the following explanation of how she calculated her assessment of the appellant’s permanent impairment:
“Section 16.6 of the WorkCover Guides state that ’A person who has suffered more than one work-related hernia recurrence at the same site and who now has limitation of activities of daily living should be assessed as herniation class 1 (AMA5 Table 6-9, p 136).’
Mr Lewis had suffered multiple and recurrent hernias. Section 16.6 of the WorkCover Guides direct reference to AMA5 Table 6-9 providing an impairment rating of between 0% and 9% WPI.
I would rate Mr Lewis at 8% WPI for recurrent hernias.
I have chosen this rating due to the multiple procedures he has required, and the reported frequent discomfort and ongoing limitations in terms of heavy lifting and activities of daily living.
Section 16.2, 16.3 and Table 5.1 of the WorkCover Guides allow up to 2-3% for mild to moderate neurogenic pain and sensory alteration in the anatomic distribution of the ilioinguinal nerve. Pain and sensory alteration of moderate severity was appropriate based on my history and clinical findings, I would allow 3% WPI.
Section 5.16 of the WorkCover Guides allow 2-3% for mild to moderate neurogenic pain and sensory alteration in the anatomic distribution of the pudendal nerve. Pain and sensory alteration of moderate severity was appropriate based on my history and clinical findings, I would allow 2% WPI for bilateral involvement.”
(Italics and bold as per original.)
The Medical Assessor compared the assessment she made with the assessments that Dr Berry and Dr Truskett respectively made, and also an assessment that Dr John Garvey had made, Dr Garvey being the appellant’s treating surgeon.
Relevant to the issues that have been raised in the appeal, the Medical Assessor noted, when comparing her assessment to Dr Berry’s assessment, said:
“[I] note that objective ilioinguinal sensory loss was now unilateral. I did find dysesthesia in relation to pudendal nerve”.
When comparing her assessment with the assessment Dr Garvey made, the Medical Assessor noted that Dr Garvey had assessed the appellant to have 16% WPI, which the Medical Assessor observed included 4% and 3% WPI for border nerve bilaterally. The Medical Assessor remarked “[I] note that objective sensory loss was now unilateral”.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the 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 Medical Assessor for the original medical assessment and has taken them into account in making this determination.
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 it is not apparent that the Medical Assessor examined his right groin because no mention is made in the MAC of whether sensation was reduced in his right groin and no mention is made in the MAC of whether the dysesthesia that the Medical Assessor found was bilateral or unilateral. The appellant submitted that the Medical Assessor did not adequately explain why the 3% WPI she assessed for neurogenic pain and sensory alteration in the distribution of the ilioinguinal nerve only applied to the left side.
The appellant submitted that the Medical Assessor did not adequately explain her assessment for the 2% WPI she assessed for moderate neurogenic pain and sensory alteration in the distribution of the pudendal nerve because the Medical Assessor did not indicate whether the dysesthesia she found was bilateral or unilateral. The appellant submitted that if it was bilateral then 2% WPI should have been assessed for each side.
The appellant submitted that the clinical findings the Medical Assessor made and the reasons the Medical Assessor provided do not provide a rational explanation regarding the assessments the Medical Assessor made.
In reply, the respondent submitted that the Medical Assessor provided clear reasons for assessing the appellant had 3% WPI relating to the ilioinguinal nerve because the Medical Assessor found that the appellant suffered a sensory loss in the ilioinguinal nerve distribution unilaterally.
The respondent submitted that the Medical Assessor’s assessment of 2% WPI with respect to the pudendal nerve incorporated both left and right sided symptoms.
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 Appeal Panel notes that neither party raised any issue regarding the Medical Assessor’s assessment that the appellant has 8% WPI for recurrent hernias. Noting the several recurrences the appellant has had and the multiple procedures he has undergone and the effect this has had on his life, the Appeal Panel considers, in any event, the Medical Assessor’s assessment is correct.
The Appeal Panel considers that when the MAC is read as a whole there is no confusion or ambiguity regarding the Medical Assessor’s findings relating to the ilioinguinal nerve and the pudendal nerve. The Medical Assessor found that the appellant had reduced sensation over the left groin only and had dysesthesia bilaterally in the perineal region. The Medical Assessor also noted that the appellant reported sensation and swelling in his left groin, constant left lower abdominal pain, cramping and discomfort in the left lower abdomen and perineal discomfort which was sharp and stabbing at times.
The Medical Assessor also noted when comparing her assessment with the assessment that Dr Berry made that she found objective ilioinguinal sensory loss unilaterally and dysesthesia in relation to the pudendal nerve.
The Medical Assessor when comparing her assessment with the assessment Dr Garvey had made noted that Dr Garvey had assessed 4% and 3% WPI for border nerves bilaterally whereas she found objective sensory loss was unilateral. In context, that can only be a reference to the ilioinguinal nerve.
The Medical Assessor when explaining how she calculated the appellant’s WPI from his injury noted that she was assessing the appellant’s WPI with respect to the ilioinguinal nerve on the basis that the appellant had mild to moderate neurogenic pain and sensory alteration on the left side only and found with respect to the pudendal nerve that the appellant had mild to moderate neurogenic pain and sensory alteration in the distribution of the pudendal nerve bilaterally.
Table 5.1 of the Guidelines provides for 1% WPI where there is sensory loss only in the anatomic distribution of the ilioinguinal nerve and pudendal nerve. The table allows 2-3% WPI where there is mild to moderate neurogenic pain and sensory alteration in the anatomic distribution of those nerves.
As said, the Appeal Panel considers that when the MAC is read as a whole that the Medical Assessor found that the appellant had mild to moderate neurogenic pain and sensory alteration in the anatomic distribution of the ilioinguinal nerve on the left side only, that is unilaterally. Consequently her assessment that the appellant’s impairment with respect to his ilioinguinal nerve is 3% WPI is not an error.
With respect to the Medical Assessor’s assessment of the appellant’s impairment due to the pudendal nerve, the Medical Assessor found that the appellant had mild to moderate neurogenic pain and sensory alteration in the distribution of that nerve bilaterally. That allowed for a rating of 2-3% WPI for each side involved. The Medical Assessor assessed 2% WPI only. That is an error. The Appeal Panel does not accept the respondent’s submission to the effect that the Medical Assessor’s assessment incorporated both left and right side symptoms, and this is because the Medical Assessor expressly found the appellant had bilateral neurogenic pain and sensory alteration. Accordingly, the assessment should have been 2% WPI for each side involved.
As a consequence of that the Appeal Panel must revoke the MAC and correct the error. When that is done the appellant’s permanent impairment from his injury is assessed at 15% WPI, which is a combination of the uncontested 8% WPI for the digestive system (being the recurrent hernias), 3% WPI for mild to moderate neurogenic pain and sensory alteration in the anatomic distribution of the ilioinguinal nerve on the left side, 2% WPI for mild to moderate neurogenic pain and sensory alteration in the distribution of the pudendal nerve on the left side and 2% WPI for mild to moderate neurogenic pain and sensory distribution in the anatomic distribution of the pudendal nerve on the right side.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 April 2023 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
Matter number: | W7258/22 |
Applicant: | Wayne Lewis |
Respondent: | Secretary, Department of Communities and Justice |
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 Dr Margaret Gibson 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, | 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) |
| Digestive system (Hernias) | 6/12/2006 | Paragraph 16.6 | Table 6-9 | 8% | - | 8% |
| Nervous system Left side ilioinguinal nerve Right side pudendal nerve Left side pudendal nerve | 6/12/2006 | Paragraphs 5.16, 16.2, 16.3 Table 5-1 | - | 3% 2% 2% | - | 3% 2% 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0