Meetke v Ready Workforce (A Division of Chandler Macleod) Pty Ltd
[2024] NSWPICMP 870
•18 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Meetke v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2024] NSWPICMP 870 |
| APPELLANT: | Vikramjit Singh Meetke |
| RESPONDENT: | Ready Workforce (A Division of Chandler Macleod) Pty Ltd |
| APPEAL PANEL | |
| SENIOR MEMBER: | Elizabeth Beilby |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 18 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for impairment of the lumbar spine; Medical Appeal Panel determined that the appellant should undergo a further medical examination because there has not been clear exposure of the Medical Assessor’s reasoning process; Held – following re-examination, Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 August 2024 Vikramjit Singh Meetke (the appeallant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 25 July 2024.
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):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
· 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant sustained an injury to his lumbar spine whilst employed by Ready Workforce (A Division of Chandler Macleod) Pty Ltd (the respondent) on 20 June 2016. He makes a claim for whole person impairment (WPI) of the lumbar spine,
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 the appellant should undergo a further medical examination because there has not been clear exposure of the Medical Assessor’s reasoning process.
The Medical Assessor reported his findings on examination as follows:
“…he was a well looking man in no obvious distress. Trendenleburg’s test was normal. Heel-toe stance was normal. Neurological examination of the lower limb demonstrated symmetrical knee and ankle reflexes with downgoing Babinskis. Peripheral power was intact. Straight leg raise was to 90° in the sitting position without tension signs. The range of motion in the lumbar spine was a full range, symmetrical and without restriction.”
It was noted by the Appeal Panel that in his examination the MA had not considered all of the criteria available to determine whether or not radiculopathy was present.
Specifically, there was no mention of any sensory testing (a major criterion) nor of muscle wasting. On the basis of his clinical findings the MA placed the appellant in the diagnosis-related estimate (DRE) category II with 5 % WPI. His clinical findings however to not exclude the possibility that radiculopathy was present, and that the correct category would be DRE category III. The Appeal Panel concluded that a re-examination was required to determine this.
After considering the MAC, the Appeal Panel formed the view that the MA has failed to Include all the criteria needed to distinguish between DRE category II and DRE category III. Whilst it is understood that the MA is not required to provide extensive detailed reasoning, it must be seen and observed by the reader that the actual path of reasoning is in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.[1] The Appeal Panel formed the view that this has not been done.
[1] State of New South Wales (NSW) Department of Education v Kaur [2016] NSWSC 346; and Wingfoot Australia Partners Pty Limited v Kocac [2013] HCA 43.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA 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.
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.
Further medical examination
Dr Roger Pillemer of the Appeal Panel conducted an examination of the worker on 2 December 2024 and reported to the Appeal Panel. The contents of the report are attached to this determination.
Conclusion regarding re-examination
The Appeal Panel adopts the findings and conclusions reached by Dr Roger Pillemer in his report to the Appeal Panel.
Dr Pillemer found clear evidence of L5 radiculopathy on the left side as outlined in his report.
Based upon the report and findings, Mr Meetke falls into DRE category III of his lumbar spine with 10% WPI, and an additional 2% for interference with activities of daily living, giving a total of 12% WPI. The Appeal Panel referred to paragraph 4.35 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment noting that the appellant can manage personal care, but is restricted with usual household tasks, especially those requiring bending and heavy lifting.
It therefore follows that the MAC issued on 25 July 2024 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: | W2262/24 |
Applicant: | Vikramjit Singh Meetke |
Respondent: | Ready Workforce (A Division of Chandler Macleod) 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:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | 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 | 20/6/16 | P28 4.34 | P384 15.3 | 12% | none | 12% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
|
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W2262/24 |
Appellant: | VIKRAMJIT MEETKE |
Respondent: | Ready Workforce (A Division of Chandler Macleod) Pty Ltd |
Date of Determination: | 16 December 2024 |
Examination Conducted By: | Roger Pillemer |
Date of Examination: | 2 December 2024 |
The workers medical history, where it differs from previous records
I read Mr Meetke the history that was taken by Dr Kuru at the time of his original examination on 21 June 2024. Mr Meetke pointed out that under the heading “Present symptoms”, the MA had suggested that ‘…currently he has no symptoms. He has some intermittent discomfort. He said his last bad period of pain was in December 2022’. Mr Meetke said that that was not correct at all, and that his last very severe episode was in December 2022 where he had to take a month off work. In late 2023 while working as a driving instructor, his work colleague was not available and he had double the workload, and on this occasion he was stretching in a flexed position and developed significant increased pain in his low back, and referred pain down his left lower limb which lasted for about 3 days.
Under the heading “Social activities/ADL”, the MA has indicated that ‘Mr Meetke reports that he has no current restrictions of activities of daily living’. Once again Mr Meetke disagrees with this and this will be discussed below.
Additional history since the original Medical Assessment Certificate was performed
Mr Meetke has ongoing problems with his low back and left lower limb, and although he can go for a day or two without any particular discomfort if he is being very careful, symptoms can still flare up and go as high as 9/10. They extend from his low back, down his left lower limb, going as far as his shin and into his left foot, particularly into the medial three toes. He only gets the foot discomfort on an average of once or twice a week, depending on the extent of his activity.
He realises that symptoms are aggravated by doing anything for too long including sitting or standing, or doing a lot of walking or a lot of driving, as this is part of his job as a driving instructor. He has to be very careful with bending and lifting.
He does get some relief by changing position and also by doing stretching.
Treatment
He says he was taking strong medication but found that these were not helping so he stopped, and at the moment he just has ointment rubbed in by his wife who also gives him a massage.
Work History
Mr Meetke moved to Perth in 2020 where he has been working as a driving instructor, 3 to 4 hours a day, 4 to 5 days a week. He also subcontracts to teach driving, and he can sometimes work 6 days a week. Unfortunately, prolonged sitting aggravates his symptoms, and recently he did two 8-hour days in a row, which significantly increased his back pain and took 2 days to settle.
General Health
He feels this is otherwise good although he has put on 20kg.
Activities of Daily Living
He feels he has had to ‘change my lifestyle’, and he has lost many job opportunities. At the present time he is studying engineering on a part time basis and has one year to go.
He lives at home with his wife and can help with the housework, doing mainly cooking but would avoid any heavy lifting, and he avoids general cleaning activities such as cleaning the bathroom, which his wife will do. He manages with his self-care.
Findings on clinical examination
Mr Meetke is a tall, strongly built adult male with a moderate to significant increase in his body mass index. He presents in a very straight forward and open fashion.
He undresses and dresses without a problem, walks without a limp and is able to walk on heels and toes.
He gets his fingertips one-third of the way down his shins in flexion, extension was satisfactory, and lateral flexion to the left was more restricted than to the right.
Straight leg raising was present to 80° on the right and limited to 60° on the left. Reflexes are all present and equal. Importantly, Mr Meetke does have mild weakness of his left big toe (extensor hallucis longus – EHL), associated with softening of extensor digitorum brevis (EDB). He also has hypoaesthesia to pinprick over the dorsum of his left foot extending slightly up the lateral leg in a very specific L5 distribution. His left calf is 1cm less than the right side, and his left thigh is 1½cm less than the right side.
Mr Meetke complains of mild discomfort in the lower lumbar region with a very genuine response. He felt today was a reasonable day for him. He had a flight to Sydney from Perth yesterday which aggravated his symptoms.
Results of any additional investigations since the original Medical Assessment Certificate
He has not had any further investigations carried out.
I do note that an MRI carried out on 8 September 2016 of his lumbar spine showed an acute posterocentral disc protrusion with disc bulging at the L4/5 level with a suggestion of implication of the left transiting L5 nerve root. The radiologist suggests that ‘…the patient is likely to have left L5 radiculopathy given the mass effect on the left transiting at L4/5’.
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