Mills v Martin Brower (Australia) Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Mills v Martin Brower (Australia) Pty Ltd [2022] NSWPICMP 327
APPELLANT:	Peter Mills
RESPONDENT:	Martin Brower (Australia) Pty Ltd
APPEAL PANEL:	Member Paul Sweeney Medical Assessor Margaret Gibson Medical Assessor Drew Dixon
DATE OF DECISION:	17 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Worker appeals against the assessment by Medical Assessor (MA) of diagnosis-related estimates (DRE) I respect of lumbar spine; MA found asymmetry which he related to the worker’s hip pathology but no other clinical signs of lumbar impairment; worker argued that the MA had not assessed the dispute in accordance with the determination of the Commission that he suffered a consequential medical condition of the lumbar spine and that he or failed to give reasons for his decision; Held — that MA had assessed the injuries referred for assessment as he found no structural abnormality and no clinical signs of injury to the lumbar spine there was no error in assessing DRE I; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 May 2022, Peter Mills (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 (MA), who issued a Medical Assessment Certificate (MAC) on
29 April 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,
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 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 was previously employed by Martin Brower (Australia) Pty Ltd (the respondent) as a storeman. In the course of that work, he suffered an injury to his right hip when lifting a box on 14 July 2016. He was treated by Dr Parikh, a general practitioner who prescribed rest and physiotherapy.
The appellant’s hip pain initially improved enabling him to return to his full duties. However, in January 2017, while performing his ordinary work he experienced increasing pain in his hip, thigh, buttock and lower back. After a long period of conservative treatment, he came under the care of Dr Dewar, an orthopaedic surgeon, and underwent arthroscopic surgery on his right hip at Lake Macquarie Hospital on 29 May 2017.
Because of continuing pain in his right hip, the appellant obtained a second opinion from
Dr Randhawa, an orthopaedic surgeon, who recommended that he undergo a total hip replacement. That surgery was ultimately undertaken by Dr Dewar at Lake Macquarie Private Hospital on 12 November 2018.
Although the appellant experienced some improvement in his symptoms, he continued to suffer pain in his hip and back following the surgery. Dr Dewar referred him to Dr Dunkley, another orthopaedic surgeon, for a further opinion.
Dr Dunkley diagnosed an iliopsoas tendinopathy and, after injecting the tendon sheath, he suggested a psoas tendon release procedure. The appellant underwent this surgery at John Hunter Hospital on 16 July 2020. Unfortunately, he has continued to experience symptoms in his hip and back. He has been unable to return to employment.
The appellant also states that since the original injury on 14 July 2016, he has walked with an altered gait. He asserts that this has resulted in increased pain in his low back, right groin, and buttock. He has seen Dr Abson, a neurosurgeon, in relation to his lower back pain. He has also been treated by Drs Russo and Prickett, pain management specialists.
The appellant saw Dr Leon Kleinman, an orthopaedic surgeon, on two occasions at the request of his solicitor. In his report of 15 December 2020, Dr Kleinman noted the appellant’s history of surgery and his complaints of continuing hip and low back pain. He recorded:
“He now continues to complain of ongoing pain in his right hip and groin for which there is no specific diagnosis. On examination of his back today he has an absent right ankle reflex consistent with a right S1 radiculopathy and the MRI scan of his lumber spine performed on 8 March 2019 suggests that there is an internal derangement with a small, extruded fragment impinging on the nerve root just to the right of the midline.”
Dr Kleinman assessed the appellant as suffering from 10% whole person impairment (WPI) in respect of his lumbar spine and 27% WPI in respect of his right hip condition. On applying the combining tables he found 36% WPI.
Dr Richard Powell, an orthopaedic surgeon, saw the appellant on several occasions at the request of the respondent. On 24 May 2021, he recorded a history of the appellant’s surgeries and noted that he continued to suffer pain in the lateral aspect of the hip “onto the posterolateral buttock and the midline region of the lumbar spine”. He also recorded that the appellant complained of stiffness and restriction in the range of motion in his right hip and back.
Dr Powell expressed the opinion that while the appellant continued to suffer from irritability in his right hip, he had not suffered “any significant structural injury to the lower back in the course of his employment”. He assessed 18% WPI relating solely to the condition of the right hip.
By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The respondent disputed liability in respect of the appellant’s lumbar spine. In essence it denied that he suffered injury or a consequential medical condition of his low back as a result of the accepted injury to his hip.
A liability dispute between the parties was heard by the Personal Injury Commission (the Commission) and determined in favour of the appellant. On 1 March 2022, a Member of the Commission found that the appellant suffered a consequential medical condition of his low back as a result of the hip injury.
As there remained a medical dispute, as that term is used in s 319 of the 1998 Act, between the parties concerning the degree of the appellant’s WPI as a result of the injuries to his hip and low back, a delegate of the President referred the dispute for assessment by a Medical Assessor. It is from the assessment of Dr Kuru that the appellant appeals.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the Panel determined that as it was unable to find error in the MAC it was inappropriate to appoint a further medical examination.
The Panel noted that the appellant’s solicitor sought a re-examination of the worker by a member of the Panel. However, the case law, which is discussed further below, instructs that it is not open to the Panel to undertake a further medical examination if it has not been able to establish prima facie error in the MAC.
The panel also noted the appellant’s request to be heard further if the panel did not appoint a re-examination. As the appellant has had the opportunity in his initial submissions to raise any argument relevant to a potential error in the MAC, the panel concluded that it was inappropriate to order further submissions.

EVIDENCE

The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the MAC given by the MA which are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated here in full but have been considered by the Panel. In summary, the appellant submits that the MA erred in four respects. First, the appellant alleged that the MA “did not adopt, as mandated, the PIC member’s determination of causation” namely that the appellant suffered a consequential medical condition of his lumbar spine as a result of the accepted injury. The submission continued:
“Illogically (and illegally) Dr Kuru determined, that as the lumbar spine rating was attributable to the primary hip injury, it should not be scored and added to the rating for the right hip. The MAC, and its reasoning, demonstrate constructive failure to exercise jurisdiction:”
Secondly, the appellant alleged that the MA had failed to apply the Guidelines or, alternatively, “decided that they were irrelevant to the assessment”. He stated that:
“The asymmetry that Dr Kuru found, was properly rateable at 5% under AMA 5.”
Thirdly, the appellant alleged that the MA should have found in the material provided to him:
“Reasonable and cogent ‘medical’ and ‘non-medical’ explanation for determining that claimed spinal injury was related to the primary injury and was, therefore, separately rateable for combination under AMA 5.”
As the Panel understands this contention, it asserts that the MA determined that the condition of the appellant’s lumbar spine did not result from the employment injury.
Fourthly, the appellant alleges that the MA “failed to provide the minimum standard of reasoning” required by law. He submitted that if the Panel was to determine the issue without re-examination, he wished to be heard further, although it is difficult to understand what further submission the appellant might make, that he has not had the opportunity to make in the submissions attached to this appeal.
By its Reply, the respondent notes that the Guidelines require evaluation of permanent impairment of spinal segments by the diagnosis-related estimates (DREs) method. They specifically state that the range of motion model discussed in chapter 15 of AMA 5 is not to be used.
Given the legislative requirement to apply the method, it could not be established that the MA fell into error by disregarding “symmetry” found in relation to the lumbar spine. On the contrary:
“‘The AMS had expressly opined that the asymmetry was not attributable to spasm or guarding; and therefore, had opined that the asymmetry was not asymmetry of spinal motion’ pursuant to the DRE method.
Clearly, the asymmetry derives from a separate pathological process unrelated to the lumbar spine (the right hip, for which the Appellant has received a separate permanent impairment assessment).”
The respondent submitted that the third and fourth grounds of appeal made by the appellant were “without merit”.

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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.
The role of the medical Appeal Panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the Appeal Panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners PtyLtd v Kocak [2013] HCA 43 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an Appeal Panel to determine whether there is error in its findings. In Wingfoot it was said that:
“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 give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
By the MAC, the MA recorded that the “Body parts/systems” referred for assessment were the “right lower extremity (hip) iliopsoas muscle and lumbar spine”. He recorded the appellant’s surgical history concluding with the arthroscopic procedure on the iliopsoas tendon in July 2020 noting that “again unfortunately this has not helped”. He carefully recorded the appellant’s present symptoms relating to these body parts. Included in his summary is the following:
“If he spends a long time sitting or on his feet, he will get pain in his back. He mobilises without aids. He avoids stairs but is able to manage them. He has difficulty putting his shoes and socks on and cutting his toenails. He can sit for 20-30 minutes before being limited by back and buttock pain.”
On his physical examination, the MA recorded the following:
“Thigh circumference was 47 cm and calf circumference was 38 cm and symmetrical. The lower limbs were neurovascularly intact. Reflexes were symmetrical with down going Babinskis. Heel-toe stance was normal.
There was no muscle spasm observed in the lumbar spine asymmetry of movement was attributed to the hip.”
The MA proceeded to assess impairment of the hip as 20%. This is not in issue. In respect of the lumbar spine, he said this:
“Lumbar spine is assessed according to AMA-5, page 384, Table 15-3. Mr Mills is assessed as DRE lumbar category I (0% whole person impairment) on the basis there is no significant clinical finding and no observed muscle guarding or spasm with no documented or neurological impairment or documentation in structural integrity of the spine. Asymmetry of movement is attributable to hip replacement rather than the lumbar spine.”
The quotations from the MAC set out above establish beyond doubt that the MA accepted that the injuries referred for assessment included the lumbar spine, that the appellant had pain in his back, and that it was necessary to assess the degree of permanent impairment of the lumbar spine at the assessment and, if necessary, combine it with WPI found in respect of the right hip. There is nothing to suggest that the MA approached the assessment on a basis which was inconsistent with the determination of the Commission that the appellant had suffered an injury to his right hip in the course of his employment and as a result of that injury suffered a consequential medical condition of his lumbar spine.
In a claim for permanent impairment compensation, the jurisdiction of the Commission extends to the determination of liability disputes. While it could find that the applicant suffered a consequential medical condition/injury of the lumbar spine, the question of whether that condition was transient or permanent and whether it gave rise to permanent impairment was within the prerogative of the MA: see Bindah v CarterHolt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 (14 August 2014) and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (10 March 2015) at [249] to [264].
To the extent that the appellant alleges that the MA erred in that he did “not adopt, as mandated, the PIC Member’s determination of causation”, the appeal is not made out. In the opinion of the Panel, the MA plainly performed the task referred to him to assess a medical dispute of the appellant’s right hip and lumbar spine. It is, therefore, necessary to consider whether the appellant has established error in the manner in which the MA carried out the assessment of the lumbar spine.
Chapter 4.5 of the Guidelines states:
“The DRE model for assessment of spinal impairment should be used. The range of motion model (AMA 5 sections 15.8-15.13 inclusive, pp 398-427) should not be used.”
It is common ground that it was appropriate for the MA to assess impairment of the lumbar spine by reference to the criteria in Table 15-3 of AMA 5. The appellant argues that given the findings of the MA, he should have been assessed as DRE Lumbar Category II and not DRE Lumbar Category I . Underlying the appellant’s criticism of theMA is his assertion that the finding of asymmetry of movement must lead to a conclusion that the criteria set out in DRE II were met.
It is evident from the MAC that the MA carried out a thorough neurological assessment of the appellant’s lower limbs. He found no neurological signs on this examination. In particular he did not find an absent ankle jerk reported by Dr Kleinman on his examination on
15 December 2020. Save for asymmetry of motion, he found no other clinical sign or indication of impairment on his examination.
Asymmetry of spinal motion is defined in chapter 15 of AMA 5 as follows:
“Asymmetric motion of the spine in one of the three principal planes is sometimes caused by muscle spasm or guarding. That is, if an individual attempts to flex the spine, he or she is unable to do so by moving symmetrically; rather, the head or trunk leads to one side. To qualify as true asymmetric motion, the finding must be reproduceable and consistent and the examiner must be convinced that the individual is cooperative and giving full effort.”
In the opinion of the Panel it was open to the MA to reach a conclusion that the asymmetry of movement of the spine found on his examination was attributable to the appellant’s hip. In the opinion of the medical practitioners on the Panel, it would have been evident to the MA on examination whether the asymmetry of spinal movement resulted from the hip injury or from pathology in the lumbar spine. There is nothing to suggest that the MA erred in his examination or was wrong in his opinion at the cause of spinal asymmetry. If he was correct in this conclusion, none of the criteria for DRE Lumbar Category II were met and the MA did not err in rating the appellant as DRE Lumbar Category I.

The Diagnosis -Related Estimates Method mandated by the Guidelines relies upon “symptoms, signs and appropriate diagnostic test results” in respect of the spinal region to be assessed. Where there are no signs on examination or diagnostic tests suggestive of lumbar pathology, a finding of DRE Lumbar Category I is likely to be the correct category. In this case, the MA found no signs of lumbar pathology and the radiological evidence did not suggest structural damage in the appellant’s spine. While Dr Kleinman expressed a different opinion the MA’s assessment was remarkably similar to that of the treating spinal surgery.
Dr Abson saw the appellant on 26 February 2020 at the request of his general practitioner. His opinion is entirely consistent with that of the MA. He reported that:
“On examination he has an antalgic gait. He is quite hesitant in ranging the right hip and it is certainly irritable reproducing some groin symptoms. There is no pain over his greater trochanter and he certainly has no sacroiliac joint pain on stressing bilaterally. His myotomes in the lower limbs are 5/5 power. He has no sensory deficit in the leg and his reflexes are brisk and symmetrical. An MRI scan done recently through Hunter Radiology shows a stable spine with normal disc appearance. There is no foraminal narrowing or any area of nerve compression to explain his symptoms.
I have been through the scans with Peter and I suspect that due to his altered gait he is having some loading of the lower back and this is resulting in lower back pain. There is no radicular nature and there is certainly no pathology that can be corrected with surgery. I am hopeful that correcting his antalgic gait as dictated by Dr Dewar will alleviate some of his back symptoms as well. He should be focusing on core strengthening exercises and low impact activities such as swimming and riding a bike.”
Finally, the panel notes that on the on the 27 April 2021 the appellant underwent nerve conduction studies which did not show any neurological lesions in the right lower limb resulting from spinal pathology.
The last argument raised by the appellant is that the MA failed to give reasons for his decision. But as Wingfoot instructs it is the role of the MA to form and give his own opinion based upon his experience and expertise. It is only necessary that the actual path of the reasoning by which he formed that opinion is sufficiently evident to enable a Court or Medical Appeal Panel to ascertain whether there is error of law. In the opinion of the panel the MA has clearly set out the reasoning by which he found DRE 1 in respect of the appellant’s lumbar spine. Accordingly, each of the grounds of appeal propounded by the appellant fails.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 April 2022 should be confirmed.

[2022] NSWPICMP 327

17 August 2022