Matthews v Australian Motor Homes Pty Ltd
[2023] NSWPICMP 352
•25 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Matthews v Australian Motor Homes Pty Ltd [2023] NSWPICMP 352 |
| APPELLANT: | Ben Matthews |
| RESPONDENT: | Australian Motor Homes Pty Ltd |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 25 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal against finding of 0% whole person impairment (WPI) for the lumbar spine; whether Medical Assessor (MA) read all the material referred to him; whether he gave adequate reasons; Held – both medicolegal experts found a Diagnosis Related Estimate II lumbar category; presumption of regularity that administrative action done properly, including reading the material; Bojko v ICM Property Service Pty Ltd considered and applied; MA not required to choose between competing opinions but to form own independent opinion; Western Sydney Local Health District v Chan and Wingfoot Australia Pty Ltd v Kocak considered and applied; however in these circumstances MA did not give adequate reasons where both experts concurred; Campbelltown City Council v Vegan and Vitaz v Westform (NSW) Pty Ltd considered and applied; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 December 2022 Ben Matthews, 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, who issued a Medical Assessment Certificate (MAC) on
7 December 2022.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 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 (the 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
On 10 November 2022 the delegate of the President referred this matter to the Medical Assessor for an assessment of whole person impairment (WPI) caused by injury to:
· thoracic spine;
· lumbar spine;
· right upper extremity (shoulder);
· left supper extremity (shoulder), and
on 19 November 2018.
Mr Matthews was employed as a technician and was engaged in replacing batteries in a motorhome when the strap used to lift the batteries broke causing Mr Matthews to lose his balance and fall out of the motorhome. He fell onto a door and thence down two stairs into an adjacent motorhome.
He received treatment from a pain management specialist and relied on THC oil to manage his pain.
The Medical Assessor assessed 8% WPI for the thoracic spine from which he deducted 1/10th. He found no WPI in the lumbar spine. The right and left shoulder injuries he found not to have reached maximum medical improvement.
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.
There was a request that the appellant be re-examined by a Medical Assessor from the panel. The panel is satisfied that a demonstrable error has been made, and a re-examination was arranged with Medical Assessor Roger Pillemer.
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.
Further medical examination
Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 15 May 2023 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submission which have been considered by the Appeal Panel.
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. 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.
Mr Matthews’ sole ground of appeal was the finding of 0% impairment with respect to the lumbar spine.
THE MAC
The Medical Assessor took a consistent history of the accident. He described Mr Matthews’ present symptoms at [4] of the MAC:
“Present symptoms: Mr Matthews describes ‘nerves on fire’ in the thoracic region of his spine where he says his muscles regularly tighten and spasm. The pain radiates from his mid back up into his neck associated with headaches. The pain also extends into his lower back. He reports intermittent discomfort in the front of his thigh. He has a standing and
sitting endurance of 10-15 minutes. He reports disturbed sleep due to pain in his back.”
(Emphasis added).
He found Mr Matthews to be consistent in his presentation. The Medical Assessor made the following findings, relevantly, on examination at [5]:
“Rotation of the spine is to 90° to the left and right. Lateral flexion is to the mid calves. A symmetrical movement of muscle guarding was observed.”
At [10b] the Medical Assessor explained his calculations as to the lumbar spine. He said:
“For the lumbar spine, assessment according to AMA-5, page 384, Table 15-3, I assess DRE Lumbar Category I (0% whole person impairment). This is on the basis of there being no significant clinical findings, particularly observed muscle guarding or spasm, or documentable neurological impairment.”
The Medical Assessor made some brief comments regarding the other medical opinions submitted by the parties. At [10c] he said relevantly:
“With respect to the report by Dr Hyde Page dated 25/03/2022, I am in agreement with the assessment of the thoracic spine as DRE Category II. I am not in agreement with his assessment of the lumbar spine as DRE Category II, given that I observed no restriction of lumbar movements or muscle spasm. The pathological findings he refers to are incidental findings unrelated to injury.
…
With respect to the report by Dr Kleinman dated 20/07/2022, again I agree with the assessment of 5% whole person impairment for the thoracic spine, but disagree with the assessment of 5% whole person impairment for the lumbar spine…”
SUBMISSIONS
Mr Matthews submitted that the Medical Assessor had neither considered all of the medical evidence nor adequately explained “the basis for disagreeing with the opinions of Dr Hyde-Page and Dr Kleinman”. In that regard reference was made to Lederer v Insurance Australia Limited t/as NRMA Insurance,[1] a decision made pursuant to the Motor Accidents Compensation Act 1999.
[1] [2022] NSWSC 322.
It was submitted that the Medical Assessor had failed to consider all of the evidence specifically “the treating professionals including GP and physiotherapist and clinical notes”. These evidenced a history of radiculopathy, it was claimed, and the Medical Assessor erred in finding there was no radiculopathy.
Mr Matthews contrasted the findings by Dr Hyde-Page and Dr Kleinmann, who both found an entitlement to compensation for the lumbar spine, with that of the Medical Assessor, who found none. It was submitted that the Medical Assessor had fallen into error as he had not adequately explained why he differed. Mr Matthews cited portions of Lederer as authority for his submission.
Mr Matthews submitted that the Medical Assessor had failed to give reasons which explained why he rejected their opinions.
Mr Matthews then submitted that the Medical Assessor’s reasons were not adequate regarding his assessment of the lumbar spine at 0%.
We were referred to Chapter 4.18 of the Guides and it was submitted that the medico-legal experts had complied with that guideline, which summarised the effect of the relevant criteria pursuant to AMA5 whereby the lumbar spine is assessed. It was submitted that the Medical Assessor did not find any spasm but that it was uncertain as to what his findings were regarding muscle guarding.
Mr Matthews advised that the Medical Assessor had been unclear and ambiguous in his report that “A symmetrical movement of muscle guarding was observed”.
Mr Matthews addressed the question of radiculopathy. He said that the Medical Assessor noted “intermittent discomfort in the front of the thigh”. It followed Mr Matthew argued that radiculopathy was “suggested”, which would entitle him to at least a 5% WPI.
Respondent’s submissions
The respondent summarised Mr Matthews’s submissions regarding the finding as to the lumbar spine. It submitted that the Medical Assessor had in fact adequately considered all of the available evidence. He had confirmed that documents as listed in the referral had been provided to him and he took a detailed history of the clinical records from Mr Matthews’s general practitioner (GP) which recorded the various complaints regarding his thoracic and lumbar spine.
The respondent referred to Stramit Corporation Pty Ltd t/as Stramit Building Products v Holl.[2] The Medical Assessor had adequately specified the basis for his disagreement with the opinions of the medico-legal specialists, the respondent submitted.
[2] [2009] NSWWCC MA 32.
The Medical Assessor stated clearly that he was not in agreement with Dr Hyde-Page and gave reasons for doing so. Associate Professor Kleinman’s opinion was the same as z
Dr Hyde-Page and therefore, the respondent submitted, there was no necessity to expressly deal with that opinion.We were referred to Painter v Bi-Lo Pty Ltd [2009][3] which was, it was asserted, authority for the proposition that a Medical Assessor was not bound by the assessments contained within the material referred to him.
[3] [2009] NSWWCC MA 351.
The respondent submitted that the guidelines had been correctly applied.
The respondent then raised an issue that might not have properly been before us. From [4] of its submissions, it submitted that the Medical Assessor had also made an error (in its favour) with regard to the calculation of the entitlement for the thoracic spine. The MAC should also be “reconsidered,” it was argued.
Discussion
We decline to consider the respondent’s application to revoke the MAC by reducing the appellant’s entitlement. No appeal has been lodged by the respondent, and Mr Matthews has had no proper opportunity to respond, notwithstanding the steps that the respondent outlined in bringing this issue to its attention. We do not have jurisdiction to interpolate an employer’s appeal into that of an injured worker. We are restricted to confirming or revoking the MAC pursuant to s 328(5) of the 1998 Act, which provides:
“(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.”
Turning to the substantive appeal, we would observe that the authority relied on of Lederer is not persuasive. Lederer was concerned with the operation of the Motor Accident scheme, which differs from that in the Workers Compensation scheme. A claim in the Workers Compensation scheme that a Medical Assessor did not consider the evidence before him faces an evidential presumption that, in attending to his administrative function, he would have done all that was necessary, including a reading of the material referred to him.[4] Presumptions can of course be rebutted, but nothing in Mr Matthews’ arguments is of sufficient probative value to do so in this case.
[4] See Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36].
There is no obligation per se for a Medical Assessor to refer to the evidence before him. In Western Sydney Local Health District v Chan[5] Adams J held that dicta in the High Court regarding the function of Medical Appeal Panels also applied to Medical Assessors. His Honour said:
“13. In Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, the High Court considered the task of a Medical Panel responsible for determining a medical dispute pursuant to s 68 of the Accident Compensation Act 1985 (Vic). The Medical Panel’s task in that case is analogous to the role of the AMS under the [1998] Act, insofar as both are responsible for determining medical disputes by forming medical opinions based on their own inquiries as well as reports provided by both parties to the dispute. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that –
‘[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel will may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions [authority omitted]. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[48] ……What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself’.”[5] [2015] NSWSC 1968 at [13].
There are, however, some situations where the opinions of the competing medical opinions need to be addressed in order for a Medical Assessor to satisfy his obligation to give adequate reasons . At the outset of these reasons we referred to the decision of Vegan, and the obligation to give reasons. It is necessary, as much for a Medical Assessor, as for a Medical Panel to give reasons. The extent of the reasons will vary depending on the nature of the dispute, but where more than one conclusion is open on the evidence an adequate explanation is required. In Vitaz v Westform (NSW) Pty Ltd[6] Basten JA, with whom McColl JA and Handley A JA agreed, said at [43]:
“…..An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
[6] [2011] NSWCA 254.
In the present case the Medical Assessor found that 0% WPI had been caused by the lumbar injury. His explanation for doing so relied on his findings on examination. He found that
Mr Matthews had sustained a DRE lumbar category I, on the basis that there were “no significant clinical findings, particularly observed muscle guarding or spasm, or documentable neurological impairment”. The medico legal experts on both sides of the record, Dr Hyde-Page and Dr Kleinman, both assessed Mr Matthews as having a DRE lumbar category II, which entitled him to 5% WPI.Dr Hyde-Page, consultant orthopaedic surgeon, reported on 25 May 2022 to the applicant’s solicitors.[7] He recorded the following complaints:[8]
“Overall, Mr Matthews does not consider there has been any improvement in his back condition. He has constant thoracolumbar back pain. The worst pain is in the mid-thoracic area and lower lumbar area. The pain is aggravated by any bending and lifting or constant sitting. He has to be careful with everything he does.
….
The radiation into his legs and thighs has improved and he no longer has any numbness in his left thigh. There is no shooting pain or numbness below his knees either.”
[7] Appeal papers page 59.
[8] Appeal papers page 61.
The findings on examination of the thoracolumbar spine said:
“On examining the thoracolumbar spine, he has localised tenderness in the mid thoracic area as well as the lower lumbar area. He was very stiff and had minimal movement with rotation and tilt, and flexion and extension. He has evidence of thoracolumbar muscle guarding. Today, he complained of no radicular symptoms.
….
On examining his lower limbs, he had normal straight leg raise with negative sciatic tension. He had normal hips and knees. There was no evidence of any radiculopathy and he had normal power, sensation and reflexes.
…
In particular, there was of no evidence of any altered sensation in his left thigh and there was no evidence of lateral femoral cutaneous nerve numbness.”
In explaining his assessment of the lumbar spine in the DRE lumbar category II, Dr Hyde-Page said:
“In the lumbar spine, there is evidence of muscle guarding, and he has radicular symptoms. With reference to AMA Guides 5th Edition page 384, he has DRE Category II lumbar spine injury…”
Dr Kleinman, orthopaedic surgeon, wrote three reports for the respondent, of which the relevant report was dated on 20 July 2022. On examination of Mr Matthews’ lumbar spine
Dr Kleinman said:[9]“On examination of his back, he has a small thoraco-lumbar scoliosis, convex to the left.
His back is very stiff with virtually no motion in any direction in his lumbar spine. When attempting to flex his back, he twists to the right as he says that his back feels as though it wants to move in that direction.
He has spasm in the thoracic and lumbar muscles.”
[9] Appeal papers page 216.
Dr Kleinman explained his calculations, saying:[10]
“Using the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, Chapter 15, Page 384, Table 15 3, his lumbar spine falls into DRE Lumbar Category II. This is equivalent to a 5% whole person impairment.”
[10] Appeal papers page 221.
The lumbar DRE categories are set out at p 384, Table 15-3, of AMA5. The relevant criteria for categories I and II are as follows. DRE Category I provides:
“no significant clinical findings, no observed muscle guarding or spasm, no documentable neurological impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures.”
DRE Category II provides relevantly:
“Clinical history and examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or nonverifiable radicular complaints of radicular pain defined as complaints of radicular pain without objective findings; no alteration of structural integrity and no significant radiculopathy.”
Chapter 4.18 of the Guides provides:
“4.18 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 deciding category DRE II, the assessor must provide detailed reasons why the category was chosen.”
It can be seen that more than one conclusion as to the appropriate lumbar category was open on the evidence before the Medical Assessor, as both medicolegal experts had found a DRE II category. An alternative conclusion was clearly presented by the evidence and accordingly adequate reasons were needed to show his path of reasoning.
We do not regard the reasons given, with respect, as having that effect. It can be seen that the criteria for DRE II include non-verifiable radicular complaints of radicular pain, defined as complaints of radicular pain without objective findings. The intermittent discomfort in the front of Mr Matthews’ thigh was a complaint identified by both the medical Assessor and
Dr Hyde-Page. Whilst Dr Hyde-Page clearly found that there was no radiculopathy present, and particularly that there was no evidence of any altered sensation in the left thigh, nonetheless he found a DRE II category was applicable even though the radiation symptoms into his legs and thighs had improved. We read his statement that there were radicular symptoms as being an acknowledgement of the presence of non-verifiable radicular symptoms.Moreover, the Medical Assessor’s comment that the pathological findings referred to by
Dr Hyde-Page were incidental, and unrelated to injury, we had some difficulty in following. Dr Hyde-Page’s report was 10 pages in length, and his opinion covered not only injury to the lumbar spine, but also the cervical and thoracic spine, and to both shoulders. It is not clear what “pathological findings” the Medical Assessor was referring to, nor why he thought they were incidental and not related to injury.Further, the Medical Assessor, whilst acknowledging Dr Kleinman’s finding of DRE category II simply said he disagreed with Dr Kleinman. Whilst such a dismissal might be sufficient in a case where there was no alternative possible on the evidence, in the light of Dr Hyde-Page’s similar assessment to that of Dr Kleinman, more reasons were required from the Medical Assessor.
Accordingly we determined that the Medical Assessor has fallen into error, and that a re-examination was required.
Medical Assessor Roger Pillemer’s report follows:
“1. The workers medical history, where it differs from previous records.
I read Mr Matthews the history that he gave to the MA at the time of his consultation on 22 November 2022, and he agreed with this. He does say however that the specialist suggested that he had to sell his old car that he was doing up ‘as he is no longer able to keep working on it’. Mr Matthews says this is not correct, and he was able to complete working on the car but was simply unable to drive it because it aggravated his symptoms.
Otherwise, he was happy with the history as given.
2. Additional history since the original Medical Assessment Certificate was performed.
Mr Matthews continues to complain of pain in the lower lumbar region on a daily basis and can go for a few hours at a time without any particular discomfort. He feels his lumbar symptoms are actually brought on by his thoracic symptoms, and when these get bad, that is when the low back gets bad. On specific questioning symptoms in his low back can go as high as 10/10 but usually average 6/10. He finds the low back symptoms are aggravated by excessive walking or rotation of his body, and he avoids bending and lifting because of the pain mainly in the thoracic area. He does get some relief by using heat packs and using his THC oil, and he has stopped taking the very strong medications.
His main symptoms seem to arise from an area on the right side of his thoracic spine, some 5cm from the midline in an area the size of ‘a golf ball’.
On specific questioning with regard to Past History, Mr Matthews does recall an injury in approximately 2014 when he fell off a ladder and he feels he had four to six weeks off at that time, and was eventually able to get back to normal duties, and he says those symptoms settled completely.
3. Findings on clinical examination
Mr Matthews is an adult male who undresses and dresses without much of a problem and walked with a slight limp on the right side today, which he felt was due to an aggravation of his symptoms, having driven down to Sydney from Newcastle. He is able to walk on heels and toes and shows significant restriction of back movement, only getting his fingertips as far as his knees in flexion, and lateral flexion to the left is more restricted than to the right. Extension was very restricted.
Straight leg raising was present to 70° bilaterally, reflexes are present and equal, sensation is intact and motor power was good in all groups tested.
There was no particular discomfort to palpation in the lower lumbar region today, but he does have marked discomfort to palpation on the right side of his thoracic spine, particularly in relation to the 7th and 8th ribs, some 5cm from the midline. There was also an area of hyperaesthesia to pinprick extending from the midline to the posterior axillary line.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Matthews has not had any further investigations carried out.”
The Panel adopts Medical Assessor Pillemer’s report. Mr Matthews was found to have a decreased lateral flexion to the left in his lumbar spine and a significant loss of extension. These asymmetric findings satisfy the criteria necessary for a DRE II lumbar category and
Mr Matthews is accordingly entitled to 5% WPI. Mr Matthews has underlying degenerative changes with facet joint arthritis, as found by Dr Hyde-Page. Accordingly a 1/10th deduction is called for.For these reasons, the Appeal Panel has determined that the MAC issued on 7 December 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | M1-W6429/22 |
Applicant: | Ben Matthews |
Respondent: | Australian Motor Homes Pty Ltd |
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 Robert Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body part | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre- existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Thoracic spine | 19/11/18 | Chapter 4 Page 24-29 | Chapter 15 Page 389 Table 15-4 | 8% | 1/10 | 7% |
| Lumbar spine | 19/11/18 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 5% | 1/10 | (4.5) 5% |
| Right upper extremity (shoulder) | 19/11/18 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | Not reached MMI | ||
| Left upper extremity (shoulder) | 19/11/18 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | Not reached MMI | ||
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
0
7
0