MJS Quality Constructions Pty Ltd v Yacoub
[2023] NSWPICMP 27
•31 January 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | MJS Quality Constructions Pty Ltd v Yacoub [2023] NSWPICMP 27 |
| APPELLANT: | MJS Quality Constructions Pty Ltd |
| RESPONDENT: | Fadi Yacoub |
| Appeal Panel | |
| MEMBER: | Brett Batchelor |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 31 January 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appeal against assessment of a Medical Assessor (MA) of 15% whole person impairment (WPI) as a result of injury to the right lower extremity; the MA found two separate injuries to the right lower extremity, an injury to the muscle of the right thigh and a separate peripheral nerve injury to the saphenous nerve; the appellant submitted that Table 17-2 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) prevented an assessment of the peripheral nerve injury and loss of muscle strength in the right lower extremity; the respondent submitted that the two separate injuries permitted them both to be assessed in reaching a total assessment of WPI for the right lower extremity examination of relevant Tables in Chapter 7 of AMA 5 and also Chapter 3 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; Held – the MA was correct in his diagnosis of two separate injuries to the right lower extremity, and that Table 17-2 of AMA 5 did not prevent the two separate injuries to the right lower extremity being assessed, and combined to give the total assessment in respect of injury to the right lower extremity as found by the MA; Medical Assessment Certificate of the MA confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 October 2022 MJS Quality Constructions Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns (the MA), a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 September 2022.
The appellant 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 (the incorrect criteria ground), and
· the MAC contains a demonstrable error (the demonstrable error ground).
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel (the 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
On 9 March 2016 Fadi Yacoub (the respondent/Mr Yacoub) suffered an injury to his right leg when cutting timber using a circular saw in the course of his employment with the appellant. The saw blade became jammed in the timber causing the saw to bounce back towards him, causing a deep laceration in his right thigh on the lateral side just above the knee. Mr Yacoub used the strap on his tool belt to torniquet the right leg above the laceration, following which he was transported to Liverpool Hospital.
X-rays at the hospital revealed no evidence of bony injury, but it was noted that the respondent had significantly lacerated the vastus lateralis and vastus intermedialis components of the quadriceps. He came under the care of an orthopaedic surgeon who carried out a surgical repair of both muscles. On his release from hospital Mr Yacoub’s right leg was placed in a Zimmer splint which remained in place for about 13 – 15 weeks. Thereafter he underwent physiotherapy treatment and strengthening exercise at a gym which was of little assistance to him. He continued to feel weakness in the right quadriceps and noted a degree of numbness in the anterior aspect and lateral aspect of his right leg going down to the dorsum of the foot and into his toes. This did not improve with physiotherapy and has continued to the present time.
The respondent suffered a condition in his lumbar spine consequent upon the injury to his right leg. This was caused by the altered gait that he was obliged to adopt. Mr Yacoub came under the care of another orthopaedic surgeon, Dr Rosenberg, and MRI scans of the right leg and lumbar spine were organised. These revealed that the quadriceps repair was intact, and mild facet joint hypertrophy in the lumbar spine, but no nerve root compression. Nerve conduction studies revealed no abnormality in the right leg. Dr Rosenberg recommended surgery which was declined by the respondent. He has undergone no physiotherapy or other treatment for the lumbar spine.
The respondent continues to see his general practitioner on a weekly to fortnightly basis for prescriptions and for certificates of capacity. He is no longer having physiotherapy or seeing Dr Rosenberg. He takes an anti-inflammatory, paracetamol, and medication for insomnia and depression.
PRELIMINARY REVIEW
The 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 it was not necessary for the worker to undergo a further medical examination because neither the appellant nor the respondent sought such further medical examination, and the Panel considers that there is sufficient material in the Appeal Papers (AP) on which to base its decision.
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.
Attached to the respondent’s submissions summarised hereunder is a report of
Dr Drew Dixon dated 5 October 2022 which contains a comment by the doctor on the MAC of the MA. The respondent at [20] of his submissions states:“20. We attach report of Dr Drew Dixon who has fulfilled advisory roles in respect to the use of AMA V and the Guidelines. He confirmed that Assessor Burns’ assessment is of an injury to the muscle itself and not a nerve supplying that muscle.[1]”,
before quoting an excerpt from the report. The respondent does not make any submission that this report should be received as fresh evidence.
[1] Appeal Papers p 24.
On the face of it, the report of Dr Dixon dated 5 October 2022 satisfies the requirements of
s 328(1) of the 1998 Act. It is “…fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against”, and that “…was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment”. The report was created to comment on the assessment of the MA. However, in the view of the Panel, that does not necessarily mean that it should be admitted into evidence in this case.Deputy President Gabriel Fleming in the Workers Compensation Commission in Ross v Zurich Workers Compensation Insurance[2] discussed the principles regarding the admission of ‘fresh evidence’ into an appeal. At [11] – [12] thereof the Deputy President said:
“11. A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly, that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan[1955] HCA 16; (1955) 93 CLR 435; McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418; Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.
12. The principles developed by the common law for appellate court review are relevant, but not determinative of the exercise of discretion to admit fresh evidence pursuant to the statutory right of appeal under Section 352(6) of the Act. The factors relevant to the exercise of this particular discretion must be determined as a matter of statutory construction (CDJ v VAJ [1998] HCA 67)”
[2] [2002] NSWWCCPD 7 (Ross).
Deputy President Fleming then went on to discuss at [13] “The introduction of a new system of dispute resolution for…” matters, which is “…embodied in the establishment of the Workers Compensation Commission”. She was referring here to the resolution of disputes before arbitrators of the Commission in respect of claims of compensation by way of weekly benefits, medical expenses and lump sum payments. She concluded that paragraph by saying “There is a public interest in ensuring accessible procedures for the final and binding determination of injured worker’s entitlements under the worker’s compensation scheme”.
Acknowledging that Deputy President Fleming’s comments in Ross were made in the context of consideration of an appeal from an arbitrator of the Workers Compensation Commission to a deputy president, nevertheless the common law principles to which she referred can be considered when deciding on the admission of fresh evidence in an appeal from a Medical Assessor to a Medical Panel.
In this case the Panel does not consider that the probative value of the report of Dr Dixon dated 5 October 2022 is such that it is likely to change the outcome of the appeal. The Panel will consider the appeal on the basis of all of the documents that were sent to the MA for the original medical assessment.
The report of Dr Dixon dated 5 October 2022 is therefore not admitted into evidence.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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.
Appellant
In summary, the appellant submits that the MA incorrectly applied Table 17-2 of AMA 5 and [3.34] of the Guidelines in assessing impairment of the right lower extremity by combining lower extremity impairment due to muscle strength with lower extremity impairment due to peripheral nerve injury. The appellant submits that these impairments cannot be combined.
The appellant submits that the MA ought to have utilised the impairment rating assessed due to muscle strength (17% lower extremity impairment (LEI)) resulting in 7% whole person impairment (WPI) of the right lower extremity.
The appellant seeks to appeal the assessment of the right lower extremity only.
In support of the incorrect criteria ground, the appellant refers to what was said by Basten JA in Campbelltown City Council v Vegan[3] in which his Honour held that ‘incorrect criteria’ “…must refer to such matters as the tests set out in the Guidelines, where they are applicable”. (emphasis in submission)
[3] [2006] NSWCA 284 (Vegan).
In support of the demonstrable error ground the appellant refers to Merza v Registrar of the Workers Compensation Commission[4] in which it was held that a demonstrable error is considered to be an error that is readily apparent from an examination of the MAC.
[4] (2006) NSWSC 93.
The appellant notes that the MA assessed 17% LEI due to muscle strength and 10% LEI due to peripheral nerve injury. It submits that the error in the MA’s assessment is contained in a paragraph on p 6 of the MAC in which he notes “…that muscle weakness or strength evaluation cannot be combined with range of movement. It can though be combined with peripheral nerve injury”.[5] The MA assessed 2% LEI due to sensory change.
[5] AP p 32.
The appellant notes that the MA combined the 17% LEI due to muscle weakness/strength with the 2% LEI rating due to peripheral nerve injury, to assess 19% LEI, or 8% WPI. The appellant submits that this is not permissible in accordance with Table 17-2 of AMA 5, which is confirmed in [3.34] of the Guidelines.
The appellant submits that the MA was able to combine the LEI of 10% due to loss of range of motion (ROM) with the 2% LEI due to peripheral nerve injury, which results in 12% LEI or 5% WPI. However [3.5] of the Guidelines provides that in the assessment process, the evaluation giving the highest impairment rating is selected. That may be a combined assessment in some cases, in accordance with Table 17-2 of AMA 5 using the Combined Values Chart on pp 604-505 of AMA 5.
The appellant submits that, noting the higher assessment found by the MA was 17% LEI due to muscle strength and applying [3.5] of the Guidelines, the MA ought have used this assessment to find a total of 7% WPI of the right lower extremity rather than the 8% WPI he assessed.
When that 7% WPI is combined with the WPI as a result of the lumbar spinal condition and scarring, the final WPI should have been assessed at 14%.
The appellant submits that the MAC dated 7 September 2022 should be revoked and a fresh MAC issued containing an assessment of 14% WPI in respect of the right lower extremity, lumbar spine and scarring.
Respondent
In reply, the respondent submits that [9] and [10] of Chapter 17.3 on p 555 of AMA 5 makes it clear that Table 17-2, “…the cross-usage Table”, ensures that only the proper methods are combined. The WPI for each injury of the same extremity should be combined using the Combined Values Chart.
The respondent submits that the MA carefully noted that with respect to the muscle injury and loss of muscle function, there was no involvement of peripheral nerve injury, and thus no peripheral nerve injury to combine with the muscle function impairment. There was thus no scope to contravene Table 17-2 of AMA 5.
The respondent draws attention to what Basten JA said in Vegan that incorrect criteria must refer to such matters as the tests set out in the Guidelines, “…where they are applicable”.
The respondent submits that the MA has carefully followed the procedure set out for applying Table 17-2, and only used one method of assessment. There was no further relevance in Table 17-2 as there was no other impairment arising from that injury or part. The direction found within Table 17-2 of AMA 5 had no other application to the muscle injury.
The respondent submits that the MA found injury to the muscle of the thigh and another injury to the saphenous nerve below the knee. He assessed muscle function in the thigh muscle injury (the first part), and the injury below the knee, the saphenous nerve, and assessed the sensory loss (the second part).
The respondent submits that in effect, the appellant invites an essentially illogical interpretation of the application of the Table (that is, Table 17-2 of AMA 5) that would lead to unjust outcomes, by forbidding the combination of separate and distinct injuries or parts of the lower extremity to be combined. According to the respondent, this is clearly not the intent of the guidance as to the application of the Table within AMA 5, nor within the Guidelines.
The respondent submits that the MA carefully noted that, with respect to the muscle injury and the loss of muscle function, there was no involvement of peripheral nerve injury and thus no peripheral nerve injury impairment to combine with the muscle function impairment. There was no scope to contravene Table 17-2.
The respondent submits that the MA found in the lower extremity two injuries or parts, and consequently two distinct impairments that needed to be combined to ensure a just outcome. One caused by the muscle laceration in the thigh, and one caused by the saphenous nerve injury below the knee. He further differentiates those two injuries of the lower extremity from the injury to the lumbar spine when he notes that the sensory change and weakness in the right leg is associated with peripheral nerve injury and muscle injury, and not due to the lumbar spine. The report of sensory change in the left foot does not follow a nerve root pattern.
The respondent relies on a number or extracts from the MAC to submit that the interpretation suggested by the appellant would lead to all manner of injustices and would render incapable AMA 5 and the Guidelines of providing a just form of assessment. The purpose of Table 17-2 is to eliminate the likelihood of duplication or doubling up of impairments. Its purpose is not to exclude distinct injuries or parts of the lower extremity from the calculation of overall impairment.
The respondent submits that the appeal should be dismissed and the Certificate of Determination issued without further delay.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. (see Siddik v Workcover Authority of NSW[6] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[7]).
[6] [2008] NSWCA 116.
[7] [2013] NSWCA 1792.
In 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.
Clause [3.2] of the Guidelines provides:
“3.2 Assessment of the lower extremity involves physical evaluation, which can use a variety of methods. In general, the method should be used that most specifically addresses the impairment present. For example, impairment due to a peripheral nerve injury in the lower extremity should be assessed with reference to that nerve rather than by its effect on gait.”
Clause [3.34] provides:
“3.34 Peripheral nerve injury impairments can be combined with other impairments, but not those for gait derangement, muscle atrophy, muscle strength or complex regional pain syndrome, as shown in AMA5 Table 17-2 (p 526). Motor and sensory impairments given in Table 17-37 are for complete loss of function and assessors must still use Table 16-10 and 16-11 in association with Table 17-37.”
Chapter 17 of AMA 5 (The Lower Extremities) contains a cross-usage chart, Table 17-2 (Guide to the Appropriate Combination of Evaluation Methods), which indicates which methods and resulting impairment ratings may be combined. That chart does not allow combination of impairment ratings for peripheral nerve injury and muscle strength. It does allow combination of impairment ratings for peripheral nerve injury and loss of ROM.
Clause 3.5 of the Guidelines provides:
“3.5 In the assessment process, the evaluation giving the highest impairment rating is selected. That may be a combined impairment in some cases, in accordance with the AMA5 Table 17-2 ‘Guide to the appropriate combination of evaluation methods’, using the Combined Values Chart on pp 604–06 of AMA5.”
The appellant’s argument is that, having regard to [3.5] of the Guidelines and the assessment of the MA of 17% LEI due to muscle strength, he should have used this 17% LEI assessment, equivalent to 7% WPI, as the total WPI for the right lower extremity. The MA should not have combined the 17% LEI with the 2% LEI he assessed for peripheral nerve injury, resulting in a total of 19% LEI, equivalent to 8% WPI for the right lower extremity.
The appellant then submits that, when 7% WPI for the right lower extremity is combined with the WPI for the lumbar spine and scarring in accordance with the Combined Values Chart, the final WPI is 14%, not 15%.
The respondent however submits that the error in the appellant’s reasoning is that the MA diagnosed two separate injuries, the injury to the right thigh muscle, and a separate injury to the saphenous nerve, a branch of the femoral nerve. This is apparent from the MA’s summary of injuries and diagnoses on p 4 of the MAC:
“Mr Yacoub sustained a deep laceration to the anterolateral aspect of his right thigh just above the knee. He lacerated both the vastus lateralis and the vastus intermedialis and also sustained injury to the saphenous nerve, a branch of the femoral nerve. The muscles were surgically repaired but he has continued to have significant weakness in extension of the right knee. This would currently be classified as grade 3 weakness.
Due to altered gait over time he has sustained a soft tissue injury to the lumbar spine. He has ongoing pain and discomfort as well as dysmetria.”[8]
[8] AP p 29.
In assessing muscle weakness at [10.b.] “REASONS FOR ASSESSMENT” the MA says on p 6 of the MAC[9] that:
“With respect to the strength in his right knee extensors from Table 17-7 he has grade 3 strength, which would give him 17% lower extremity impairment. This is due to direct injury to the muscles of the quadriceps rather than being due to a peripheral nerve injury.”
….
“I note that muscle weakness or strength evaluation cannot be combined with range of movement. It can though be combined with peripheral nerve injury. A combination of 17% lower extremity impairment due to muscle weakness with 2% lower extremity impairment due to sensory change would be 19% lower extremity impairment. This would be converted to 8% whole person impairment. Thus the higher of the two would be taken, which is 19% lower extremity impairment or 8% whole person impairment (rather than 10% lower extremity impairment for range of movement).”
[9] AP p 31.
The Panel accepts that the MA is here stating that muscle weakness or strength evaluation cannot be combined with ROM although it can be combined with peripheral nerve injury, because the latter injury is a separate injury. This confirms what the MA said in his summary of injuries and diagnoses set out at [52] above. Therefore Table 17-2 does not prevent the impairment from the peripheral nerve injury sustained by the respondent being combined with the impairment from the injury to the right thigh muscle.
This interpretation of the MA is consistent with the respondent’s submission at [34] above relying on what is stated at [9] and [10] of Chapter 17.3 on p 555 of AMA 5. Relevant parts of [9] and [10], which appear under the heading “17.3 Lower Extremity Impairment Evaluation Procedure Summary and Procedure” are as follows:
“9. Select the most appropriate method(s) based on the history and physical examination. Use the cross-usage table (Table 17-2) to ensure only the proper methods are combined. Although diminished muscle function can be evaluated by means of four methods (peripheral nervous system impairment, atrophy, manual muscle testing or gait) use only the method that has the greatest specificity (eg, a peripheral nerve injury, if present)….
10. If there are several alternatives, use the grouping that provides the greatest impairment percent. Convert lower extremity impairment rating to whole person impairment using appropriate tables. Combine whole person impairments for each injury/illness for the same extremity using the Combined Values Chart.”
Only one method of assessing muscle function can reasonably be utilised, and in this case the MA has used muscle strength (manual muscle testing). Peripheral nerve injury is not contributory in the present case. It is a separate injury (sensory). The methodologies utilised by the MA do not impact upon each other.
At [5] and [8] of his submissions, summarised at [38] and [41] above, the respondent describes the injury to the saphenous nerve as “...the saphenous nerve injury below the knee”. The Panel is of the view that this injury should correctly be described as “…injury to the saphenous nerve as manifest below the knee”.
In the second paragraph of the MAC set out at [53] above, the MA has combined the 17% LEI with 2% LEI to obtain 19% LEI which, in accordance with Table 17-3 on p 527 of AMA 5, is equivalent to 8% WPI. When the 8% WPI is combined with the 6% WPI in respect of the condition in the lumbar spine and 1% WPI for scarring, in accordance with the Combined Values Chart on p 604 of AMA 5, the final figure of 15% WPI is obtained.
For these reasons, the Appeal Panel has determined that the MAC issued on
7 September 2022 should be confirmed.
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