Mitchell v Glenella Quarry Pty Ltd
[2023] NSWPICMP 137
•12 April 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mitchell v Glenella Quarry Pty Ltd [2023] NSWPICMP 137 |
| APPELLANT: | Peter David Mitchell |
| RESPONDENT: | Glenella Quarry Pty Ltd |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 12 April 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Lumbar spine injury; complaint of leg pain required assessment of radiculopathy persisting after surgery; assessment in accordance with the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021; paragraph 4.4, 4.27 and 4.28 required a more detailed history; impact of the injury on activities of daily living; TEMSKI; re-examination required; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 October 2022 Peter David Mitchell lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 October 2022.
Mr Mitchell relies 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, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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
Mr Mitchell was employed by Glenella Quarry Pty Ltd (Glenella) as a quarry worker. While reversing a dump truck on 19 September 2018, another dump truck travelling forwards struck the left rear corner of his truck. The impact was heavy and Mr Mitchell felt immediate pain and a pop in his lower back with pain going down both legs. After a period of conservative treatment, Mr Mitchell underwent a L5/S1 discectomy on 29 January 2020.
Dr Bodel saw Mr Mitchell at the request of his solicitors on 13 August 2021. Mr Mitchell told him that he had significant left leg pain and he included a loading in his assessment of permanent impairment for persisting radiculopathy. Dr Doig saw Mr Mitchell for Glenella and reported on 18 October 2021. While he did not consider that Mr Mitchell had clinical evidence of radiculopathy, he explained why he did not include it in his assessment.
The Medical Assessor assessed 11% whole person impairment, assessing Mr Mitchell in DRE lumbar category III and allowing 1% for the impact on his activities of daily living.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
We called for production of the report of an MRI scan dated 11 January 2021 which was referred to in the reports in the file but not included in the documents filed by the parties. A copy of the report was provided.
As a result of that preliminary review, we determined that the worker should undergo a further medical examination because Mr Mitchell has reported radiculopathy persisting after surgery but the Medical Assessor did not set out his observations of the criteria for assessment of radiculopathy. He also failed to adequately consider the impact of the impairment on Mr Mitchell’s activities of daily living.
Mr Mitchell is not vaccinated against COVID-19, which caused a delay in making suitable arrangements for an examination.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Dr Mastroianni of the Appeal Panel conducted an examination of the worker on
2 March 2023 and reported to us. His report is attached and forms part of these reasons.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 have been considered by the Appeal Panel.
In summary, Mr Mitchell submitted that when the Medical Assessor recorded his complaint of pain radiating to his left leg, he should have tested for radiculopathy. He said that the Medical Assessor did not explain how his examination differed from that of Dr Bodel who did diagnose radiculopathy. The relief sought was that we accept that the assessment in DRE lumbar category III was appropriate but combine it with an assessment of the left lower extremity.
Mr Mitchell also submitted that the Medical Assessor erred in making no assessment under the Table for the Evaluation of Minor Skin Impairments (TEMSKI) and that his assessment was so unreasonable that no reasonable decision maker could have reached the same conclusion. He attached a photograph of the scar in October 2022.
Mr Mitchell’s third ground of appeal was that the Medical Assessor’s assessment for the impact on his activities of daily living was inadequate and that the history established a basis for a 3% permanent impairment.
Mr Mitchell’s fourth ground of appeal was a failure to provide adequate reasoning. He submitted that the Medical Assessor failed in his statutory obligation to show the path of his reasoning for stating that there was no radiculopathy.
In reply, Glenella submitted that the Medical Assessor did test for radiculopathy and said that the difference between his opinion and that of Dr Bodel was not a demonstrable error. Glenella said that the inclusion of the photograph of Mr Mitchell’s scar infringed s 328(3) of the 1998 Act. In any event, the scar was consistent with an impairment of 0% WPI.
With respect to the activities of daily living, Glenella said that the assessment of 1% was open to the Medical Assessor, particularly when he did not diagnose radiculopathy. It said that the Medical Assessor had disclosed his reasoning, particularly when the MAC is read as a whole, citing the statement of the Court of Appeal in Vannini v World Wide Demolitions Pty Ltd[1] that:
“…it is important to keep in mind that the reasons of the Panel under challenge must be read as a whole, considered fairly and without ‘combing through the words with a fine appellate toothcomb, against the prospect that a verbal slip will be found warranting the inference of an error of law’.”
[1] [2018] NSWCA 324 at [94].
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[2] 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.
[2] [2006] NSWCA 284.
Radiculopathy
When describing Mr Mitchell’s current symptoms the Medical Assessor said:
“Subsequent to the surgery, Mr Mitchell reports a minor reduction in pinching pain in his back but no significant relief of his left sided leg symptoms. He also now reports that he has some pain radiating into his right leg.
…
He continues to have pain in his back. He has pain radiating posteriorly in his left leg into the calf. He has lesser pain radiating into his right leg.”
The Medical Assessor described his examination:
“Trendelenburg's test is normal. Heel-toe stance is normal. Neurological examination of the lower limbs demonstrates symmetrical knee and ankle reflexes with down going Babinskis. Peripheral power is intact. Straight leg raise is to 80° bilaterally without tension signs.”
The Medical Assessor noted the MRI scan dated 11 January 2021, saying that it showed a discectomy with residual disc protrusion. He diagnosed a left L5 disc protrusion and noted that Mr Mitchell had “undergone surgical discectomy with minimal relief of symptoms”. He assessed permanent impairment:
“Mr Mitchell has undergone surgical discectomy. According to SIRA, page 29, paragraph 4.37 decompressive procedures are categorised as DRE Category Ill (AMA-5, page 384, Table 15-3: 10% whole person impairment). According to SIRA, page 28, paragraph 4.34, I assess a further 1 % impairment for restriction of activities of daily living.”
The Medical Assessor commented on the other assessments in the file:
“With respect to the report by Dr Doig dated 18/10/2021, I agree with the assessment as Lumbar DRE Category III and have added 1% rather than 2% for restriction of activities of daily living. I agree that modifiers are not assessable as per SIRA Guidelines, page 27, paragraph 4.27.
With respect to the report by Dr Bodel dated 13/08/2021, I agree with the assessment of Mr Mitchell's DRE Lumbar Category III but again have assessed 1% rather than 2% for restriction of activities of daily living. I disagree with the assessment of an initial 3% for radiculopathy and note Dr Bodel's assessment was undertaken via Telehealth and he acknowledges difficulty in making that assessment.”
Paragraph 1.8 of the Guidelines provides that the impairment “that results from the injury/condition must be determined using the tables, graphs methodology given in the guidelines and the AMA 5, where appropriate”.
Paragraph 4.4 in the chapter on the spine reads:
“The assessment should include a comprehensive, accurate history, a review of all pertinent records available at the assessment, a comprehensive description of the individual’s current symptoms and their relationship to activities of daily living (ADL); a careful and thorough physical examination; and all findings of relevant laboratory, imaging, diagnostic and ancillary tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The assessor should record whether diagnostic tests and radiographs were seen or whether they relied solely on reports.”
Paragraph 4.4 required a more thorough description of Mr Mitchell’s symptoms and activities than the Medical Assessor provided. Paragraphs 4.27 and 4.28 required the Medical Assessor to consider if radiculopathy as defined in the Guidelines was present and to set out his reasoning by reference to the criteria in those paragraphs. The paragraphs read:
“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.”
The Medical Assessor’s failure to consider radiculopathy by reference to those criteria fails to disclose his path of reasoning and is a demonstrable error. Merely agreeing with Dr Doig does not disclose his reasoning, particularly when a Medical Assessor has an obligation to assess a worker as he presents on the day of the examination[3] and Dr Doig saw Mr Mitchell about a year before the examination by the Medical Assessor.
[3] Guidelines paragraph 1.6.
The MRI scan dated 11 January 2021 showed, according to the radiologist’s conclusion:
“• Posterior annular protrusion at L3-4, stable.
• Right paracentral focal protrusion at L4-5, increased since the previous scan.
• Left paracentral L5-S1 protrusion filling the left lateral recess and impinging on the descending left S1 nerve, which has developed since the previous scan.”
We adopt Dr Mastroianni’s findings in his attached report. Mr Mitchell does have radiculopathy as defined in paragraph 4.27. Mr Mitchell has two major criteria – muscle weakness and abnormal sensation appropriate to a spinal nerve distribution for L5/S1. He also has two minor criteria – positive nerve root tension sign and findings on imaging studies consistent with the clinical signs.
It is therefore appropriate to include a further 3% in the assessment of Mr Mitchell’s lumbar spine under paragraph 4.37 of the Guidelines because he has had spinal surgery with residual symptoms and radiculopathy as defined in paragraph 4.27.
Table 15-3 of AMA 5 makes clear that radiculopathy is assessed as part of the impairment of the spine. It is not appropriate to also assess radiculopathy as an impairment of the left lower extremity as Mr Mitchell sought.
Activities of daily living (ADLs)
It is appropriate to consider Mr Mitchell’s third ground of appeal next because it is part of the assessment of the lumbar spine. As noted above, the Guidelines require a comprehensive description of a worker’s symptoms and their relationship to the activities of daily living. The Medical Assessor merely said:
“Social activities/ADL: Mr Mitchell indicated he is generally restricted in all activities by his back. He has difficulty completing household tasks and sitting driving for long periods of time.”
The Medical Assessor added 1% for the impact on Mr Mitchell’s ADLs without exposing his reasoning.
The Guidelines provide a method for considering the impact of the impairment on ADLs which is more precise than AMA 5. In accordance with paragraph 1.1, the method in the Guidelines prevails. Paragraphs 4.34 and 4.35 provide:
“4.34 The following diagram should be used as a guide to determine whether 0%, 1%, 2% or 3% WPI should be added to the bottom of the appropriate impairment range. This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury.
…
4.35 The diagram is to be interpreted as follows:
Increase base impairment by:
· 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
· 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
· 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
Dr Mastroianni took a history which is set out in his attached report. Even though Mr Mitchell has some difficulty performing household duties, he is able to take care of them and to undertake his own personal care activities. In those circumstances an assessment of 1% for the impact of the impairment on his ADLs is appropriate.
TEMSKI
In the course of his report, the Medical Assessor said:
“There is a 6cm, well healed, midline surgical scar consistent with decompressive surgery. The wound is well healed without contour defects, suture lines or giving colour contrast.”
When making his assessment the Medical Assessor said:
“Scarring (TEMSKI): According to SIRA Guidelines, page 74, Table 14.1, I assess 0% whole person impairment for Scarring (TEMSKI). The wound is well healed without contrast or trophic signs and has no effect on activities of daily living.”
The TEMSKI required the Medical Assessor to consider nine criteria under five headings. The nine features are whether Mr Mitchell was conscious of the scar, colour, trophic changes, staple or suture marks, visibility, contour, effect on ADLs, whether treatment is required and whether the scar is adherent. The Medical Assessor only mentioned three in his assessment (though did refer to other observations on examination) and did not comment on any differences between his observation of the scar and those of the independent medical examiners.
Dr Bodel assessed 1%, noting that he observed a pigmented scar and that Mr Mitchell said that it was irritable and itchy. Dr Doig observed that the scar was discoloured.
We agree with Glenella’s submission that it was inappropriate to include a photograph of Mr Mitchell’s scar with the submissions. The photograph does not fulfil the criteria for fresh evidence in s 328(3) of the 1998 Act and we have not had regard to it. However, once we determined that it was necessary to re-examine Mr Mitchell, it was appropriate to consider his conclusions with respect to scarring.[4]
[4] Versace v Australia’s Best Tyres & Auto Pty Limited [2016] NSWSC 1540 at [37].
Dr Mastroianni observed colour contrast, as Drs Bodel and Doig did. The scar is visible if Mr Mitchell is not wearing a shirt. Mr Mitchell said that he is conscious of the scar and that it remains itchy. On that basis, the best fit under the TEMSKI is an assessment of 1%.
For those reasons, we have determined that the MAC issued on 5 October 2022 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
Matter number: | W6381/21 |
Applicant: | Peter David Mitchell |
Respondent: | Glenella Quarry 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 Dr Rob 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 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 | 19/09/18 | Chapter 4 Page 24-29 | Chapter 15 Table 15-3 | 14% | Nil | 14% |
| Scarring | 19/09/18 | Chapter 14 Pages 73-74 | 1% | Nil | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-W6318/21 |
| Appellant: | Peter David MITCHELL |
| Respondent: | Glenella Quarry Pty Ltd |
| Date of Determination: |
| Examination Conducted By: | Tommasino Mastroianni |
| Date of Examination: Attendance: | 2 March 2023 Peter David Mitchell |
The workers medical history, where it differs from previous records.
The Claimant confirms the history of the injury as per the Medical Assessment Certificate dated 5/10/22.
Additional history since the original Medical Assessment Certificate was performed.
The claimant was asked to describe his symptoms. He complains of constant back pain and intermittent left leg pain radiating to the left foot. The pain in the foot is associated with increased back pain. He states that his feet get cold and they feel numb.
I asked about his social activities. He is single and lives in a two-bedroom home on a property. He says he cannot do any outdoor maintenance but manages all the housework. He said he cannot do heavy work as this aggravates his back, but he manages to mop, clean the bath, do general housework, do the washing and cook. He is independent in self-care.
When examining the back and measuring the scar he asked how big the scar was. He is aware of the scar as it is itchy, and because of this he is conscious of the scar.
Findings on clinical examination
He is a man of stated age, tall and of slim build. He walks with a normal gait. He prefers to stand as the car trip to the rooms today aggravated his back. He can walk on heels and toes but complains of increased back pain on heel walking. He cannot squat and says that he usually gets down on one knee which he did without difficulty and supporting himself on the couch.
Back movements were restricted in all planes with flexion and extension being in the order of one-quarter, and rotation and tilt half the normal range.
Examination of the back reveals an 8cm surgical scar centrally over the lumbosacral spine. Proximally the scar is ½cm in width and it narrows to a fine line distally. There are suture marks evident and trophic changes throughout the scar. The scar is a little paler than the surrounding skin. There is no contour defect, no effects on ADLs, no adherence and no treatment required. The scar is visible with summer clothing and swimwear.
There was postural muscle guarding in the lumbar spine.
He gets on and off the couch with no difficulty is comfortable supine.
Examination of the lower limbs reveals normal and symmetrical reflexes (knee, ankle and hamstring jerks). There is decreased sensation on the outer aspect of the left lower leg and foot, both to light touch and sharp stimuli in the L5/S1 distribution. There is Grade 4 power in the left big toe compared to normal Grade 5 power in the right big toe. Straight leg raise supine: right leg is 70°, left leg is 50°. Nerve root tension signs are positive in the left leg.
Results of any additional investigations since the original Medical Assessment Certificate
The following x-rays were reviewed:
MRI lumbar spine, 1/11/18 – Dr Gunn
There is broad-based L5/S1 posterocentral/left paracentral disc protrusion. There are accelerated degenerative changes within the mid to lower lumbar spine. It is possible that this could be on the basis of previous Scheuermann’s disease.
MRI lumbosacral spine, 11/01/21 – Dr Jones
History – persistent low back pain 8 months post left L5/S1 discectomy.
Conclusion:
Posterior annular protrusion at L3/4 stable.
Right paracentral focal protrusion at L4/5, increased since the previous scan.
Left paracentral L5/S1 protrusion filling the left lateral recess and impinging on the descending left S1 nerve which has developed since the previous scan.
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