Mehr v Bulk Recovery Solutions Pty Ltd
[2021] NSWPICMP 220
•23 November 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mehr v Bulk Recovery Solutions Pty Ltd [2021] NSWPICMP 220 |
| APPELLANT: | Harry Mehr |
| RESPONDENT: | Bulk Recovery Solutions Pty Ltd |
| APPEAL PANEL: | Member Catherine McDonald Dr John Ashwell Dr Mark Burns |
| DATE OF DECISION: | 23 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Deterioration resulting in increase in impairment; worker underwent lumbar spine surgery; Riverina Wines Pty Ltd v The Registrar considered; assessment on appeal in respect of lumbar spine only; Held – Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 August 2019 Harry Mehr lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Home, who was, under the legislation then in force and Approved Medical Specialist (AMS). The AMS issued a Medical Assessment Certificate (MAC) on 15 August 2019.
The appellant relies on the grounds of appeal under s 327(3)(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, and
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
The delegate was satisfied that, on the face of the application, the ground of appeal in
s 327(3)(a) has been made out. The Appeal Panel has 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 2006 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 2006.
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 Mehr suffered an injury to his lumbar spine and left knee on 16 April 2018 while working for Bulk Recovery Solutions Pty Ltd (Bulk Recovery). He was referred to the Medical Assessor (then an Approved Medical Specialist or AMS) who prepared the MAC dated 6 August 2019 in which he assessed 7% whole person impairment (WPI) in respect of Mr Mehr’s lumbar spine and 5% WPI in respect of his left lower extremity (knee), resulting in a total assessment of 12% WPI.
Mr Mehr underwent a posterior lumbar fusion at L4/5 on 30 August 2020.
Pursuant to orders made by the Commission on 11 June 2021, the purpose of the appeal is to resolve a threshold dispute and not to obtain further compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act).
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that Mr Mehr should undergo a further medical examination to ascertain the effects of the surgery he underwent and to confirm that he had reached maximum medical improvement.
Dr Burns of the Appeal Panel conducted an examination of Mr Mehr on 8 November 2021. Dr Burns’ report is appended to these reasons.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Mr Mehr sought to admit a report of Dr E Gehr, orthopaedic surgeon, dated 1 March 2020 in support of the appeal and submitted that the evidence is relevant to provide an assessment of WPI since the surgery.
It is self-evident that the evidence was not available and could not reasonably have been obtained before the previous assessment.
Bulk Recovery did not oppose the reliance on that report.
We agreed that Dr Gehr’s report should be received on the appeal.
However, we considered it equally important to have the reports provided to Dr Gehr which were held by Mr Mehr’s solicitor but not been included in the appeal application. We issued a direction calling for those documents. The radiological reports and the reports of Mr Mehr’s treating surgeon were particularly relevant.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
The parts of the medical certificate given by the AMS that are relevant to the appeal are set out, where relevant, in the body of this decision, as are extracts from the recent reports.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, Mr Mehr said that he had undergone a spinal fusion and would therefore now be assessed in DRE Lumbar Category IV, resulting in a higher level of permanent impairment. He said that this appeal was brought as a result of orders made by the Commission on 11 June 2021 and that he did not seek an assessment of body parts which were not the subject of the previous MAC.
In reply, Bulk Recovery submitted that Mr Mehr had not reached maximum medical improvement, noting that Dr Gehr said that he would require weekly rehabilitation treatment in the form of physiotherapy or hydrotherapy. Its solicitor Mr Lee noted that Dr Gehr had not said that Mr Mehr’s condition had reached maximum medical improvement and that surgeons did not generally consider that a condition had achieved that until one year after surgery.
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[1] 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.
[1] [2006] NSWCA 284
The MAC
The AMS recorded that Mr Mehr injured his lumbar spine and left knee and that he noted swelling in his left knee immediately after the incident. He described the treatment undertaken, including seeing three orthopaedic surgeons with respect to his knee. He said that Mr Mehr underwent an epidural injection into his spine and complained of increased pain following the injection. Mr Mehr had physiotherapy.
On examination, the AMS noted pain behaviour.
The AMS diagnosed:
“• left knee twisting injury with early imaging evidence of a ruptured Baker's cyst and knee synovitis and altered signal in the anterior cruciate ligament, reflecting an anterior cruciate ligament strain. Subsequent MRI scan imaging excludes an anterior cruciate ligament tear. There are no clinical signs of instability. There is a complaint of chronic pain in the knee with moderate wasting of the left thigh, due to relative disuse.
• soft tissue injury to the lumbar spine with underlying L3/4 and L4/5 discopathy. No clinical signs of radiculopathy.”
The AMS explained his calculations:
“Lumbar spine
The clinical presentation is consistent with a DRE Lumbosacral Spine Category II impairment rating. There is muscle guarding during active spinal motion.
The criteria for a diagnosis of radiculopathy are not met.
A 5% whole person impairment rating arises in accordance with the methodology set out in AMA5, Table 15-3, page 384.
A 5% whole person impairment baseline applies.
I have assessed a further 2% whole person impairment for the restriction of activities of daily living in accordance with the NSW WorkCover Guidelines Sections 4.33 to 4.35, as there is impairment of capacity for normal domestic chores and heavy manual handling in addition to sporting and recreational activities.The total whole person impairment rating for the lumbar spine equals 7% whole person impairment.
There is no Section 323 apportionment of the above impairment arising from any previous injury, pre-existing condition or abnormality.
Left knee
Impairment is assessed using Table 17-6, Impairment due to Unilateral Leg Muscle Atrophy. A 4cm wasting of the left thigh attracts a rating of severe impairment, giving a 5% whole person impairment rating.
There is no Section 323 apportionment of the above impairment arising from any previous injury, pre-existing condition or abnormality.
The workers condition has reached maximum medical improvement.
The combined whole person impairment rating equals 7% combined with 5%, which equals 12% whole person impairment.”
Further medical evidence
Mr Mehr saw Dr A Kam, neurosurgeon, on 20 November 2019. Dr Kam reviewed an MRI scan date 1 October 2019 which he said showed:
“evidence of loss of disc height, endplate changes and a subtle disc osteophyte complex on the right side in close proximity to the exiting L4 nerve root. There is also some early dehydration of the L3/4 disc space with a small area of annular tear centrally located.”
Dr Kam said:
“I have advised Mr Mehr to consider surgery as an option as he has been trying to put up with his symptoms for nearly 20 months now without any real improvement. Surgery would entail a posterior lumbar fusion at the L4/5 level to address his leg pain. The L3/4 in the future may also be a problem as there is early signs of dehydration.”
Surgery was undertaken on 30 August 2020.
Dr Gehr prepared a long report dated 1 March 2021. He assessed Mr Mehr in DRE Lumbar Category IV as a result of a one-level fusion resulting in an assessment of 20%. He assessed 2% in respect of the activities of daily living, combining that figure as a separate assessment and not including it in the assessment of the lumbar spine. He assessed 2% WPI in respect of scarring. He assessed Mr Mehr’s left knee under Table 17.10 of AMA5 at 12% WPI.
Dr Gehr also made assessments in respect of Mr Mehr’s cervical spine, left shoulder and left thigh, the latter in respect of muscle wasting.
Consideration
The concept of deterioration was considered by the Court of Appeal in Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission[2]. Campbell JA said[3]:
“Considering that submission involves, first, construing section 327(3)(a). ‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.
The conclusive presumption of correctness does not attach to every statement that is made in a MAC – in the present case, that conclusive presumption of correctness applies, under Part 18C Schedule 6 Clause 4(2) only to ‘the matters in dispute in any proceedings in respect of the claim for compensation concerned’. In the present case, that is the extent to which the Worker has suffered a percentage loss of efficient use of the right arm at or above the right elbow. Thus, in the present case, the relevant type of ‘deterioration’ for the ground in section 327(3)(a) is established if her present condition is such that she has a percentage loss of efficient use of the right arm at or above the right elbow of greater than 0%.”
[2] [2007] NSWCA 149.
[3] At [94]-[95].
Handley AJA said:[4]
“The relevant ground of appeal (s327(3)(a)) makes the certificate the starting point of the inquiry. The ground does not authorise a challenge to the correctness of the certificate as at the date it was given. It is entirely focused on what has happened to the worker since.”
[4] At [122].
Those body parts assessed by Dr Gehr which were not the subject of the MAC cannot be considered on this application.
Similarly, there is no evidence that Mr Mehr’s left knee has deteriorated. The AMS assessed 5% as a result of wasting, noting that it was difficult to examine Mr Mehr’s lower extremities. He relied on Table 17-6 of AMA 5, as amended by paragraph 3.14 of the Guidelines.
Dr Gehr assessed Mr Mehr’s left knee at 12% under Table 17.10 of AMA 5 and sought to include an amount for wasting of his left thigh under Table 17.6. Both of those assessments relate to his knee injury. Range of movement cannot be combined with muscle wasting[5] and if the loss of the range of movement resulted in a higher assessment, it is that assessment which would be used.
[5] AMA 5 Table 17-2
No appeal was brought in respect of the assessment of Mr Mehr’s left knee by the Medical Assessor. While the Certificate of Determination extracted in the submissions said that the appeal is limited to the body parts originally assessed by the AMS, there is no basis to revisit the assessment in respect of Mr Mehr’s knee in the absence of evidence of deterioration. There is nothing in Mr Mehr’s submissions to suggest that we should.
Mr Mehr underwent surgery to his lumbar spine in August 2020 and, by the time he saw Dr Burns, had been discharged from Dr Kam’s care. Dr Burns’ report describes his findings on examination of Mr Mehr’s lumbar spine and scar.
By the time a face to face examination could take place, it was more than a year since the surgery. The Guidelines do not prescribe the time it will take for maximum medical improvement to be reached though paragraph 1.15 provides:
“Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”
Based on the findings in respect of the lumbar spine and under Table 15-3 of AMA 5, Mr Mehr would be assessed in DRE Lumbar Category IV at 20% because he has undergone surgical arthrodesis. The impact of the injury on his activities of daily living results in an additional 2% under paragraphs 4.33 to 4.36 of the Guidelines.
Because there is no radiculopathy and Mr Mehr has undergone one operation at one level, none of the modifiers in Table 4.2 of the Guidelines apply. There is no deduction under s 323 of the 1998 Act.
Those assessments are unlikely to change and we consider that the assessment is not premature.
Because Mr Mehr has a surgical scar, the question of assessment under the Table for the Evaluation of Minor Skin Impairment would have been considered if it had been present at the time of the original assessment.
No claim has been made under the TEMSKI and the Panel cannot assess a body part which is not the subject of the referral – see Skates v Hills Industries Ltd.[6]
[6] [2021] NSWCA 142.
In any event and based on Dr Burns’ assessment, the best fit in accordance with paragraph 14.8 of the Guidelines is an assessment of 0% for scarring. The basis for that determination is that more of the features of the scar fit the criteria for 0% WPI than 1% WPI, coupled with the statement in paragraph 14.6 that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 August 2019 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
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 Dr Alan Home 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) |
| Lumbar spine | 16 April 2018 | Chapter 4, paragraphs 4.33 to 4.35 | Table 15.3 page 384 | 22 | 0 | 22 |
| Left lower extremity (knee) | 16 April 2018 | Chapter 3 | Table 17-6 | 5 | 0 | 5 |
| Total % WPI (the Combined Table values of all sub-totals) | 26% | |||||
Catherine McDonald
Member
Dr John Ashwell
Medical Assessor
Dr Mark Burns
Medical Assessor
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-1681/19 |
| Appellant: | Harry Mehr |
| Respondent: | Bulk Recovery Solutions Pty Ltd |
| Date of Determination: | 15 August 2019 |
| Examination Conducted By: | Dr Mark Burns |
| Date of Examination: | 8 November 2021 |
Mr Mehr attended unaccompanied. Mr Amin Barjooee, an Official interpreter was present via telephone for the entire examination.
The workers medical history, where it differs from previous records.
Mr Mehr confirmed the history taken by Medical Assessor Dr Alan Home in his Medical Assessment Certificate dated 15 August 2019.
Additional history since the original Medical Assessment Certificate was performed.
Mr Mehr reported that he changed to a new General Practitioner, Dr Mohammad Omer Mohmand in late 2019. The new General Practitioner noted that he continued to have severe pain in his low back as well as pain and discomfort in his left knee. It was recommended that he be referred to a new Neurosurgeon for a second opinion. He was referred to Dr Kam, Neurosurgeon whom he saw in November 2019. At that time, he reported that not only did he have severe pain in his low back, but he also had pain radiating down into his right leg. Dr Kam noted for the previous 20 months he had been struggling with daily pain whilst being treated by conservative means. He continued to have daily pain in his back, which had not improved with either physiotherapy, medications, or injections. He continued to use Panadeine Forte on a regular basis. Dr Kam recommended that he should consider having a spinal fusion at the L4/5 level. A request for approval of the surgical fusion was put into the insurance company and whilst he waited, he continued with physiotherapy.
He reported that the physiotherapy and ongoing Panadeine Forte medication gave him no improvement over the end of 2019 and early 2020. During this period, he also trialled chiropractic and hydrotherapy without benefit. In early 2020 the Covid-19 pandemic commenced prior to his receiving approval for surgery on his low back. At the time no surgery was being carried out in major hospitals, so he continued with conservative treatment.
He continued to be reviewed by Dr Kam and it was decided that the L4/5 fusion would go ahead and was eventually carried out on 30 August 2020. He stated that by the time of the operation the pain, which had previously been worse in his right leg was now mostly in his left leg. The pain was down into the left thigh, around through the back of the knee and down over the lateral aspect of the inside his ankle.
Following the surgery, he reported that his back pain persisted but the pain radiating down to his left leg was significantly better. He continued though to require ongoing analgesics and continued to attend physiotherapy and chiropractic. He reported with the lockdown procedures in 2021 that most of his treatment was put on hold except for the analgesics. He reported that he is looking forward to having hydrotherapy again now that the pools are re-opening.
With respect to his left knee, a bone scan was carried out that revealed no significant pathology. He stated though that he continued having physiotherapy for both his back and knee and that the insurance company was paying for this treatment.
Current symptoms
Mr Mehr reports that he continues to have pain across his low back, which he rates at 6-10 on the visual analogue scale. He states that the pain is constant and that he occasionally has pins and needles. He has difficulty with prolonged sitting and walking. The pain only occasionally radiates to both legs but is present for some of every day. He remains independent in self-care but restricted is domestic activities in the house and garden.
With respect to his left knee, he reported pain over the anterior aspect of the knee, which is constant. His knee pain also impacts upon his capacity to walk.
Current treatment
Mr Mehr was reviewed by Dr Kam approximately 3 months ago and discharged from his care. He was told though that he can return if any further problems arise. He continues to see his General Practitioner on a fortnightly basis, mostly to get either certificates of capacity or medication. He attends physiotherapy and chiropractic at the time that he sees the doctor as they work at the same address. He is now attending physiotherapy on a weekly basis and also chiropractic. Again, he believes that this treatment is currently being paid for by the insurance company.
He reported that he is currently taking Tramadol on a prescribed amount of 200mgs twice a day. I note this is the maximum recommended dose for acute back pain. I believe it is slightly above the amount that would normally be recommended for chronic pain. When discussing his medication, he reported that on some days when the pain is severe, he takes substantially above the prescribed dose.
Findings on clinical examination
Mr Mehr was 178cms tall and overweight at 110kgs. He was noted to walk with a slightly antalgic gait favouring his left leg.
Lumbar spine
Examination of the lumbar spine revealed tenderness in the midline at the L4/5 level. There was no evidence of muscle spasm or muscle guarding. His lumbar lordosis was slightly decreased. Flexion was 50% of predicted with a slight tilt to the right side. Extension was also 50% of predicted. Lateral tilt to the left and right was 50% of predicted and symmetrical.
Neurological examination of both lower limbs revealed normal knee, ankle, and medial hamstring reflexes on both sides. Normal tone was also noted. Power was slightly decreased in a relatively global fashion on the left leg associated with pain. Sensation was reported as being slightly decreased in the left thigh laterally and in the lower leg in a patchy distribution, which did not follow a nerve root pattern. The circumference of the right quadriceps was 50cms compared to 47cms on the left. The circumference of the right calf muscle was 41cms compared to 40cms on the left.
Lower extremity
Examination of both knees revealed no abnormality on the right side but clicking on bending the left knee. Mild tenderness was also noted anteriorly to the left knee. Active range of movement in both knees was measured using a goniometer. On the right side from full extension, he could flex to more than 110°. On the left side he was noted to lack 10° of extension and could flex to 100° only. He reported pain at end of range in both directions.
Both knees were noted to be approximately 5° valgus angulation. There was no patellofemoral crepitus or tenderness on the right side. There was no evidence of instability in the ligaments on either side. On the left side there was also no evidence of patellofemoral crepitus, but some mild swelling was noted above the patella.
Scarring
He was noted to have 2 lateral scars over the lower lumbar spine. On the left side there was a 3cm scar and on the right side a 5cm scar. When questioned on the scars he reported the following:
He stated that he was conscious and concerned about the scars because he was worried that they may break down.
The scars were not visible wearing normal clothing and only barely visible with his shirt off.
He can locate the scars by touch.
The centre of the scars on both sides showed a decrease in pigmentation with a slight increase around the outside of the scar.
No trophic changes were noted in the scar on either side.
Staple or suture marks bilaterally were barely visible.
There was no evidence of contour defect on the scar on either side.
Mr Mehr reported no treatment for either scar.
There was no adherence of either scar to the underlying structures.
When questioned about the scars he reported no impact of the scars on his activities of daily living.
From the TEMSKI table I believe he has 6 criteria at 0%WPI and 4 criteria at 1% WPI.
Results of any additional investigations since the original Medical Assessment Certificate
Mr Mehr did not bring any investigations with him.
Signed:
Dr Mark Burns
Date: 11 November 2021
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