LWB Disability Services South Limited v Apps
[2023] NSWPICMP 457
•15 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | LWB Disability Services South Limited v Apps [2023] NSWPICMP 457 |
| APPELLANT: | LWB Disability Services South Pty Limited |
| RESPONDENT: | Virginia Ann Apps |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 15 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of permanent impairment resulting from injury respondent suffered to cervical spine; respondent had cervical laminoforaminotomy shortly after suffering injury as treatment for her injury; substantial degeneration in cervical spine was found at surgery and in radiological investigation done before surgery; respondent continued to suffer symptoms and had clinical signs of radiculopathy after surgery and at time of assessment; Medical Assessor (MA) found that no proportion of respondent’s permanent impairment was due to pre-existing condition; Appeal Panel held MA was wrong to so find; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 June 2023 Stefanutti Construction Pty Limited, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr J Brian Stephenson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 June 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 s328 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
Virginia Anne Apps, the respondent, injured her cervical spine on 21 September 2018 while working for the appellant.
An MRI scan of the respondent’s cervical spine done on 17 October 2018 was reported to reveal multi-level spondylotic change, with the changes most marked at C6/7 where there was central canal narrowing as well as exit foraminal flaring.
Neurosurgeon and spinal surgeon Associate Professor Ali Ghahreman performed a cervical laminoforaminotomy on 17 January 2019 at C6/7 and C7/T1 by way of treatment of the appellant’s injury. A/Prof Ghahreman noted in the operation record he issued for that surgery that at the time of surgery he found the respondent had severe foraminal stenosis at C6/7 and C7/T1 secondary to uncovertebral joint hypertrophy and had a disc bulge with compression of the C7 and T1 nerve roots.
An X-ray done of the respondent’s cervical spine on 22 May 2019 was reported to reveal moderate degenerative narrowing of the C6/7 disc space with associated spondylotic changes and mild degenerative narrowing of the C5/6 level with marked anterior spondylosis and mild osteophytic encroachment on the C6/7 neural exit foramina bilaterally with likely impingement of the nerve roots.
The respondent’s solicitors arranged for surgeon Dr David Millons to examine the respondent and prepare a forensic medical report relating to her injury. In reports dated 1 June and
6 September 2022, he advised he assessed the respondent had 30% whole person impairment (WPI) from her injury, comprising 29% WPI relating to the respondent’s cervical spine and 1% for scarring. The respondent then claimed compensation of $82,880 from the appellant pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 30% WPI resulting from her injury.Thereafter the appellant’s solicitors organised for the respondent to be examined by neurosurgeon Dr Vidyasagar Casikar. He reported to the appellant’s solicitors that he assessed the respondent had 16% WPI relating to cervical pathology. He considered the pathology in the respondent’s cervical spine was not related to her work place injury. He reported to the respondent’s solicitors that “as far as deductions for pre-existing degenerative disease is concerned the insurers have accepted that degenerative disease is related to a work place incident then 10% deduction is applicable”. He considered that the respondent did not have any permanent impairment relating to scarring from her surgery. He accordingly assessed the respondent had 14% WPI based on an assumption he was obviously asked to make that the respondent had suffered an injury to her cervical spine on 21 September 2019.
On 31 January 2023 the appellant’s solicitors wrote to the respondent’s solicitors advising them that the respondent’s instructions were that it would pay the respondent compensation of $33,120 for 14% WPI for the injury to her cervical spine.
That offer was obviously unacceptable to the respondent, who initiated proceedings in the Personal Injury Commission (Commission) by lodging an Application to Resolve a Dispute dated 28 March 2023 seeking determination of her claim for compensation for permanent impairment from her injury. Thereupon a delegate of the President of the Commission referred the matter to the Medical Assessor to assess.
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 respondent to undergo a further medical examination. This is because neither party challenged the examination the Medical Assessor conducted of the respondent and the findings the Medical Assessor made from his examination. The issue raised in the appeal relates only to whether the Medical Assessor erred and, or alternatively, applied incorrect criteria by finding that no proportion of the respondent’s permanent impairment was due to a pre-existing condition. That issue can be dealt with by the Appeal Panel based on the material before the Appeal Panel. There is simply no need for the Appeal Panel to re-examine the respondent as no further useful clinical data relating to the issue raised in the appeal would be obtained by doing so.
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
As mentioned, the issue raised by the appellant in the appeal against the MAC relates to whether the Medical Assessor erred by finding that no proportion of the respondent’s permanent impairment was due to a pre-existing condition. Relevant to that issue, the Medical Assessor recorded in the MAC that Dr Ghahreman had found when operating on the respondent’s cervical spine that there was severe foraminal stenosis at C67 and C7/T1 due to uncovertebral hypertrophy and disc bulge. Further, the Medical Assessor summarised in the MAC the findings from the MRI scan the respondent had done on 17 October 2018 and the X-ray of the cervical spine done on 22 May 2019. The Medical Assessor recorded that the respondent’s present symptoms included neck pain and radicular pain that affected the respondent’s right upper extremity.
The findings that the Medical Assessor recorded from his examination of the respondent included the respondent had sluggish reflexes in her right upper extremity, weak grip strength of her right hand in contrast to her left hand, positive nerve root tension in her right upper extremity when traction was applied, and muscle wasting of the first web space of her right hand. The Medical Assessor noted that the findings on imaging studies were consistent with those clinical signs.
The Medical Assessor concluded that the respondent met the criteria of cl 4.27 of the Guidelines for a finding of radiculopathy to be made.
The Medical Assessor assessed the respondent’s permanent impairment to be 22% WPI, comprising 21% WPI relating to her cervical spine and 1% WPI relating to scarring. No issue is raised in the appeal regarding the Medical Assessor’s assessment of the respondent’s overall permanent impairment.
The Medical Assessor said at part 8e of the MAC that no proportion of the respondent’s WPI was due to a previous injury, pre-existing condition or abnormality. At part 11 of the MAC the Medical Assessor said “there is no deductible proportion”. Consequently the Medical Assessor certified he assessed the respondent’s permanent impairment resulting from her injury was 22% WPI.
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 Medical Assessor erred by not making a deduction under s 323(1) of the 1998 Act in the circumstance where there is a documented history of degenerative changes in the respondent’s cervical spine. The appellant submitted that the Medical Assessor erred by not providing “reasoning to displace the assumption under s323 that a deduction should be applied when there is documented evidence of degenerative changes in the cervical spine at the time of the work place injury”.
The appellant submitted that the imaging the Medical Assessor reviewed demonstrated the respondent had degenerative changes in her neck at the time of the work place injury, and the Medical Assessor in such circumstance should have provided fuller reasons why no proportion of the respondent’s permanent impairment was due to the pre-existing changes in her neck.
In reply, the respondent submitted that for a deduction to be made under s 323(1) of the 1998 Act it is necessary to demonstrate that the baseline assessment of 15% for DRE Cervical Category III was due not merely to the decompression surgery but also to the pre-existing pathology. The respondent submitted that there is no evidence which establishes that the pre-existing pathology contributes to the impairment and that it is necessary that such a contribution be found for a deduction to be made. The respondent submitted that it cannot be assumed that a pre-existing condition necessarily contributes to an impairment resulting from an injury.
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 considers that the evidence in this case clearly establishes that the respondent had pre-existing and extensive degenerative changes in her cervical spine at the time she injured her cervical spine. That degeneration was revealed by the MRI of her cervical spine done on 17 October 2018, by the findings of Dr Ghahreman when he performed the cervical laminoforaminotomy on 17 January 2019, and by the X-ray of her cervical spine done on 22 May 2019. The extent of the degeneration in the respondent’s cervical spine from those radiological investigations and as found by Dr Ghahreman at the time of surgery was substantial and it can be inferred from the extent of the degeneration that it would have been present in the respondent’s cervical spine as at the date of her injury. In other words, the extent of the degeneration was such that it could not have developed subsequent to her injury or progressed after her injury other than a miniscule amount.
The injury the respondent suffered resulted in significant symptoms manifesting from that degeneration. The surgery the respondent had was necessary to treat the degeneration in the respondent’s cervical spine in order to provide her some relief from her symptoms consequent upon her injury. Her surgery however has not resolved her symptoms or her clinical signs. The degeneration in her cervical spine, from which symptoms manifested as a consequence of her injury, still results in the respondent suffering significant symptoms, including radicular symptoms.
The situation therefore is that the respondent’s pre-existing degeneration in her cervical spine contributes to her permanent impairment from her injury. Without her having the pre-existing degeneration in her cervical spine, her symptoms and clinical signs, which her injury precipitated, would not exist. Without the degenerative changes in the respondent’s cervical spine, her current permanent impairment would not be as great. Her pre-existing degeneration in her cervical spine consequently makes a difference in the outcome for the respondent in terms of the degree of permanent impairment she has.
Consequently, in accordance with s 323(1) of the 1998 Act, a deduction must be made in the assessment of the degree of the respondent’s permanent impairment resulting from her injury for the proportion of her permanent impairment that is due to that pre-existing condition.[1] The Medical Assessor erred by not making a deduction under s 323(1) of the 1998 Act. The Appeal Panel must therefore correct that error.
[1] Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45].
In the Appeal Panel’s view, it is too difficult to determine precisely the proportion of the respondent’s permanent impairment that is due to a pre-existing condition. In that circumstance, the Appeal Panel assumes in accordance with s 323(2) of the 1998 Act that the proportion is 10%, which the Appeal Panel considers is not at odds with the evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 June 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: | W2347/23 |
Applicant: | Virginia Ann Apps |
Respondent: | LWB Disability Services South Limited |
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 J Brian Stephenson 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) |
| Cervical spine | 21/09/2018 | Chapter 4, Table 4.2 | Chapter 15, Table 15-5 | 21% | 1/10 | 19% |
| Scarring | 21/09/2018 | Chapter 14, Table 14.1 | Chapter 8 | 1% | - | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
0
2
0