McDermott v AEM Fisheries Pty Ltd (deregistered)
[2022] NSWPICMP 33
•2 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | McDermott v AEM Fisheries Pty Ltd (deregistered) [2022] NSWPICMP 33 |
| APPELLANT: | Mark Anthony McDermott |
| RESPONDENT: | AEM Fisheries Pty Ltd (deregistered) |
| APPEAL PANEL: | Member Catherine McDonald Dr Mark Burns Dr Roger Pillemer |
| DATE OF DECISION: | 2 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Commercial fisherman suffered a lumbar spine injury (L3/4) lifting a box of fish and underwent surgery; previous lumbar spine injury at a different level (L5/S1) treated conservatively; Medical Assessor did not make allowance for radiculopathy but also did not make a deduction under section 323 Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker did not fulfil requirements in Guidelines for allowance for radiculopathy; no basis for section 323 of the 1998 Act deduction when surgery was at a different level and assessment was appropriate application of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed and Guidelines; Held– Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 December Mark Anthony McDermott lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 December 2021. On 23 December 2021 AEM Fisheries Pty Ltd (AEM) lodged a Notice of Opposition in Mr McDermott’s appeal and lodged an appeal of its own.
Mr McDermott relied 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.
AEM relied only on the ground of demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error with respect to the assessment of radiculopathy and the application of s 323 of the 1998 Act. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2018 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 2018.
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
Mr McDermott worked as a commercial fisherman. He suffered an injury to his lumbar spine in 1998 with another employer for which he received compensation.
On 18 November 2016 he suffered an injury to his lumbar spine lifting a box of fish. On 23 February 2017 Dr D Al Khawaja undertook a right L3/4 microdiscectomy, rhizolysis, periradicular injection and graft.
The Medical Assessor was asked to assess the impairment arising from the 2016 injury. He assessed Mr McDermott in DRE Lumbar category III which results in 10% whole person impairment (WPI). He added 2% for the impact of the injury on the activities of daily living, resulting in a total of 12% WPI. He did not make an allowance for any radiculopathy persisting after surgery and did not make any deduction under s 323 of the 1998 Act.
The parties accept the assessment of 12% WPI but differ as to whether an allowance for radiculopathy should be made or a deduction made under s 323 of the 1998 Act.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for the worker to undergo a further medical examination because there is no error in the assessment made by the Medical Assessor.
EVIDENCE
We have all of the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
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 submissions. They are not repeated in full, but we have considered them. Though there are two appeals, the issues are narrow and the submissions can be summarised briefly.
In summary, Mr McDermott submitted that the Medical Assessor was in error not to make an allowance for radiculopathy persisting after the surgery. He said that the Medical Assessor should have done so because his findings describe two of the criteria for the assessment of radiculopathy in paragraph 4.27 of the Guidelines. He sought to be re-examined.
AEM denied that there were grounds to assess radiculopathy.
In reply, AEM submitted that the Medical Assessor should have made a deduction under s 323 because there was definite evidence of pre-existing pathology in the medical evidence relating to the 1998 injury.
Mr McDermott said that the Medical Assessor explained that there should not be a deduction because the 1998 injury did not contribute to the impairment suffered as a result of the 2016 injury, the injuries being at different levels of the lumbar spine
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 an 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.
It should be noted that the brief to the Panel and presumably that to the Medical Assessor contained material which should not have been included. On 13 July 2021, a Personal Injury Commission Member resolved a dispute about the provision of material regarding the 1998 injury to the Medical Assessor. He held that only part of the Applications to Admit Late Documents dated 18 May 2021 and 21 June 2021 should be included and that submissions provided for the purpose of that dispute should not be sent to the Medical Assessor. Despite that order, the whole of the Applications to Admit Late Documents were included as well as the submissions.
The panel has not considered the documents which the Member ordered should not be sent to the Medical Assessor. A CT scan report dated 2 May 2000 which was to be sent to the Medical Assessor in fact relates to somebody else and has been disregarded.
The MAC
The MAC is said to be an amended certificate but the parties agreed in the submissions that the only amendment was to the date.
The Medical Assessor set out the history he obtained from Mr McDermott. He noted that Mr McDermott has pain in his lower back radiating down the left leg to the shin. He described the 1998 injury. He set out his findings on examination which included:
“The legs were equivalent in length and in circumference at the thighs. The right calf was 1cm less in circumference than the left.
No significant features were identified with the hips, knees or ankles. Sensation to pinprick was reduced over either side of the left thigh although there was no loss of sensation in the left lower leg. In general, sensation was perceived more on the right side than on the left.
Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.
Straight leg raising was conducted in the sitting position on the edge of the couch. He could fully extend each knee without difficulty.”
The Medical Assessor summarised the injuries and his diagnoses:
“Mr McDermott gives a history of a previous injury to his lower back which occurred in 1998. It was demonstrated that this resulted in discogenic pathology at the L5/S1 articulation.
This was managed conservatively, and he achieved a reasonable result. More recently, in late 2016 (almost exactly five years ago) he experienced further discogenic pathology although this was at the L3/4 articulation. The reason for this was again lifting a box of fish.
This was managed by a micro-discectomy under the care of Specialist Spinal Surgeon, Dr Darweesh Al-Khawaja. Mr McDermott experienced a reasonable result although still has some features of lower back dysfunction with radiation down the lower limbs, although this was insufficient to demonstrate a diagnosis of radiculopathy.”
With respect to the previous injury, the Medical Assessor said:
“It is acknowledged that Mr McDermott has previously experienced dysfunction of his lower back although this was at the L5/S1 articulation. This was managed conservatively, and he achieved a fairly good result and was able to get back to his physically very arduous occupation of commercial fishing. He was able to continue with this right up until the time of this most recent event. Therefore, although there is a history of a pre-existing lower back condition and that is around the lower part of the lumbar spine and now has a lot of degenerative changes, from a functional point of view Mr McDermott did not experience any specific difficulty right up until the time of this event. I am therefore persuaded that it would be inappropriate to apply a deduction.”
The Medical Assessor set out his calculations:
“There has been discogenic pathology at the L3/4 articulation. This has been managed by a micro-discectomy. This immediately places Mr McDermott into DRE Lumbar Category III. This provides a whole person impairment ranging between 10% and 13%, depending on activities of daily living (AMA 5 Page 384, Table 15-03). For his activities of daily living, he would comfortably qualify for a further 2%, raising his whole person impairment to 12%.
As advised, I am not persuaded that a deduction should be applied. His whole person impairment therefore remains at 12%. Also, I was unable to demonstrate sufficient features which would confirm a diagnosis of radiculopathy.”
The Medical Assessor set out his reasons for disagreeing with the doctors qualified for the parties. He did not agree with Dr Bodel that Mr McDermott suffered demonstrated sufficient features to conclude a diagnosis of radiculopathy, noting that “[a]lthough there were some neurological features down the left leg, I was unable to convincingly demonstrate sufficient features to conclude a diagnosis of radiculopathy”. He agreed with Dr Miniter as to the assessment of whole person impairment but did not agree that it was appropriate to deduct 25% under s 323 because Mr McDermott had been able to return to a “physically very arduous occupation” and had no symptoms before the 2016 injury.
Medical evidence
The tenor of the evidence is that the 1998 injury was an injury to Mr McDermott’s lumbo-sacral disc. There are no relevant radiological reports in the file but there are several contemporaneous reports. Dr Stephen described a CT scan dated 3 July 1998 in his report dated 21 September 1998. The text of the report appears to be set out in Dr Davis’ report also dated 21 September 1998:
“CT Scan Lumbar Spine - There is no evidence of a disc lesion at the L2/3 or L3/4 levels. At the L4/5 level, there is moderate bulging of the annulus fibrosis causing narrowing of the inferior portions of the nerve root exit canals.
At the L5/S1 level, there is central posterior disc bulge displacing the normal epidural adipose tissue and also causing a mild impression on the anterior aspect of the thecal sac locally.
The bony spinal canal is normal in contour. There is no evidence of canal stenosis. The facet joints are normal.”
The 1998 injury was treated conservatively. Mr McDermott returned to work.
After the 2016 injury. Mr McDermott underwent an MRI scan and the report dated 5 January 2017 reads in part:
“At the L3/4 level there is a large posterior disc protrusion, causing compromise of the anterior aspect of the theca and each L4 nerve root. This is slightly more marked to the left of mid line. Marked acquired canal stenosis is present at the level of this disc protrusion.
At the L4/5 level there is a small left lateral disc protrusion into the left neural exit foramen encroaching on the inferior surface of the left L4 nerve root within the foramen.
At the L5/S1 level there is a left lateral disc protrusion encroaching on the left L5 nerve root in the left neural exit foramen. There is a smaller right posterolateral disc protrusion at this level encroaching on the right S1 nerve root without nerve root displacement, Right lateral bulging of the disc annulus is noted, with minimal encroachment on the right L5 nerve root in the right neural exit foramen.”
Dr Al Khawaja’s operation report dated 23 February 2017 states in part:
“… The L4 nerve root was very tight. It was released completely. The dura and the nerve root were retracted medially. The L3/4 disc space was identified again. There was a significant bulge coming out of this space pushing the right L4 nerve root at the entry zone. The disc fragment was removed and a proper discectomy was done using magnification. Loose fragments were removed completely. There were no more loose fragments at all. The nerve root was free and pulsating. The left side was checked through the right approach, no more disc fragments found.”
Dr Al Khawaja described Mr McDermott’s injury and his examination in a report dated 12 April 2017:
“Mr McDermott … came to me with right leg pain. On the 18th November last year, he was lifting a box of fish from the back of the boat and after that he felt his back give way, and then he started getting significant lower back pain going to the right leg at L4 distribution. This is at work and part of his duties. He was in agonizing pain in the beginning, but his symptoms improved slightly, but he kept having significant pain around L4 distribution with numbness. His examination showed absent right knee jerk and decreased sensation on the right L4 distribution. He had partial weakness of his foot, dorsiflexion of power 4/5. He had an MRI done which showed large disc herniation at L3/4 pushing the right L4 nerve roots. The diagnosis of his condition is acute L3/4 disc herniation and the cause of it is a work related injury when he was lifting the box of fish from the back of the boat.”
Radiculopathy
The Medical Assessor accepted that Mr McDermott suffered some radiation of pain down his left leg but considered it was not sufficient to diagnose radiculopathy.
Dr J G Bodel prepared a report at the request of Mr McDermott’s solicitors dated 30 November 2020. He noted that Mr McDermott complained of intermittent referred pain into the left buttock and thigh. He said:
“He has wasting of the left calf which is 1.2 cm smaller than the right. He reaches forward in flexion with his hands to the knees and he has increasing back and left buttock pain at this point and also pain on extension.
Straight-leg-raising is 80 degrees on the right and 70 on the left and there are mild positive nerve root tension signs. There is mild weakness on resisted knee extension on the left hand side and the knee reflex is diminished when compared to the right. There are sensory losses in the L4 distribution on the left hand side. There are positive signs of persisting radiculopathy although these are relatively mild.”
On the basis of those findings, Dr Bodel allowed 3% under Table 4.2 of the Guidelines for radiculopathy persisting after surgery. Mr McDermott submits that the Medical Assessor was in error not to make a similar allowance.
Dr P Miniter saw Mr McDermott for AEM and reported on 8 March 2021. He did not assess radiculopathy as a result of the 2016 injury. He said:
“You will note that the latest scan indicates that the L4 nerve roots have been decompressed effectively but there appears to be some pathology at the level below, this being at the L4/5 level. There is likely also pathology at the L5/S1 level.
ln effect, it appears that the matter is largely one of longstanding pathology. lt is possible that he has had an L3/4 disc rupture but it appears that this has been adequately decompressed and that the current problem relates to further degenerative change at the L4/5 level and perhaps at the L5/S1 level. The matter is complicated, and it is not likely that he will be symptom free in the longer term.”
Paragraphs 4.27 and 4.28 of the Guidelines provide:
“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 (AMA5 Box 15-1, p 382)
· muscle wasting – atrophy (AMA5 Box 15-1, p 382)
· findings on an imaging study consistent with the clinical signs (AMA5, p 382).
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.”
Mr McDermott submitted that the Medical Assessor found a reproducible impairment of sensation on either side of the left thigh and positive muscle wasting and had therefore identified two of the criteria in paragraph 4.27 to confirm radiculopathy. Mr McDermott submitted that Dr Bodel’s findings were the same and that the Medical Assessor had failed to give reasons explaining the difference between his physical findings and his conclusion.
Mr McDermott’s submissions do not take account of the requirement that the impairment of sensation that is a feature of radiculopathy must be anatomically localised to an appropriate spinal nerve root distribution. The relevant injury was to L3/4 so that the loss of sensation must correspond to the nerve roots relevant to that disc. The Medical Assessor noted the areas in which loss of sensation was experienced and they do not correspond to the L4 nerve root distribution. A loss of sensation on the inside of the left thigh corresponds with L2 or L3. While the outside of the left thigh corresponds to L4, Mr McDermott did not complain of a loss of sensation below the knee, which would be anticipated if the L4 nerve root was impacted. The Medical Assessor said that there was no loss of sensation in the left lower leg.
The Medical Assessor was required to assess Mr McDermott on the day of the examination[1] and he was not required to agree with the assessment made by Dr Bodel over a year earlier.[2]
[1] Guidelines paragraph 1.6.
[2] See State of New South Wales v Kaur [2016] NSWSC 346 at [25]-[26].
The muscle wasting observed by the Medical Assessor was in Mr McDermott’s right calf, rather than the left (as Dr Bodel recorded). Muscle wasting in Mr McDermott’s right calf is consistent with the 1998 injury and with the findings on the MRI scan on 5 January 2017 in respect of the L5/S1 disc. It also corresponds with the description in Dr JPH Stephen’s report dated 21 September 1998 that the chief pain was in Mr McDermott’s calf. It is also consistent with the complaints to Dr TP Davis set out in his report dated 8 February 1999. Dr Davis recorded that Mr McDermott still had pain in the right calf which was present all the time with intermittent shooting pain.
Dr Miniter accepted that Mr McDermott had residual radiculopathy at a different level resulting from pre-existing pathology. That observation appears correct.
While it would have been appropriate for the Medical Assessor to explain in a little more detail why his findings did not provide a basis to diagnose radiculopathy as a result of the 2016 injury, his finding is correct. The examination findings do not support an assessment in respect of radiculopathy.
Section 323
Section 323(1) of the 1998 Act requires that when assessing the degree of permanent impairment resulting from an injury, there be a deduction for any proportion of the impairment that is due to a previous injury or due to a pre-existing condition or abnormality.
In Cole v Wenaline Pty Limited[3] (Cole), Schmidt J said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”[4]
[3] [201] NSWSC 78.
[4] At [29]-[30].
In Elcheikh v Diamond Formwork (NSW) Pty Limited[5], Schmidt J summarised the task of the Medical Assessor:
“As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
Firstly, what the extent of the resulting impairment is.
Secondly, whether the pre-existing condition contributed to the impairment.
Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition."
[5] [2013] NSWSC 365.
In Ryderv Sundance Bakehouse[6] Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”[7]
And
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”[8]
[6] [2015] NSWSC 526.
[7] At [45].
[8] At [54].
Paragraph 1.27 of the Guidelines reads:
“The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.”
The report of the MRI scan dated 5 January 2017 is set out above as are Dr Al Khawaja’s operation findings. Those documents show that Mr McDermott suffered an injury to the L3/4 disc. The Medical Assessor, and both of the independent medical examiners, agreed that was the site of the injury.
The Medical Assessor assessed that injury as he was required to do under AMA 5 and the Guidelines. An injury resulting in surgery to the L3/4 disc required assessment in DRE Lumbar Category III. As required by paragraph 1.27 of the Guidelines, the Medical Assessor made that assessment without regard to the previous injury at L5/S1 and the degenerative changes at L4/5 shown on the 2017 scan.
Dr Miniter accepted that the 2016 injury was to the L3/4 disc. His primary assessment was the same as the Medical Assessor. His reason for making a deduction of 25% was pre-existing pathology. However, that pathology was at a different level to the site of the injury which he was asked to assess. He did not explain why the deduction was warranted in those circumstances and his assessment is inconsistent with the Guidelines. It cannot be said that the pre-existing pathology made a difference to the assessment required as a result of the L3/4 injury.
The Medical Assessor in this case did what was required of him and the assessment made in respect of the 2016 injury was warranted. There was no basis for a deduction under s 323.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 December 2021 should be confirmed.
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