MKD Transcorp Pty Ltd v Risteski
[2024] NSWPICMP 82
•20 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | MKD Transcorp Pty Ltd v Risteski [2024] NSWPICMP 82 |
| APPELLANT: | MKD Transcorp Pty ltd |
| RESPONDENT: | Petar Risteski |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Ross Mellick |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 20 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) did not consider relevant evidence attached to appellant’s reply and thereby denied appellant procedural fairness; whether MA wrongly correlated respondent’s symptoms and signs relating to his cervical spine with DRE II; whether MA wrongly assessed respondent’s ADLs as 2% WPI; whether MA erred by not making deduction under section 323(1); Held – Appeal Panel found MA erred by not making deduction under section 323(1) but found no other error in Medical Assessment Certificate (MAC); MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 September 2023 MKD Transcorp 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, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 August 2023.
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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant employed Petar Risteski, the respondent, as a truck driver. On 7 October 2016 the respondent was preparing a trailer to take a load. That required him to construct a wall within the trailer using bars. Whilst undertaking that task he felt a click in his right shoulder and experienced significant pain. He suffered an injury to right shoulder. He subsequently had surgery on 10 March 2017 to repair the rotator cuff of his right shoulder.
The respondent claimed compensation for permanent impairment from his injury. His claim alleged that in the incident of 7 October 2016 he injured his right shoulder and his cervical spine, or alternatively suffered a condition to his cervical spine as a consequence of his right shoulder injury. He also claimed he suffered a consequential condition to his left shoulder and left hip.
The appellant’s insurer denied liability for the respondent’s claim on the bases that the respondent did not suffer an injury or consequential condition to his cervical spine, that the respondent did not suffer a consequential condition to his left shoulder and that the respondent did not suffer a consequential condition to his left hip. The appellant accepted the respondent suffered an injury to his right shoulder.
Following that denial by the insurer, the respondent instituted proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation. The matter was referred to Member Cameron Burge who conducted an arbitration on 10 July 2023. The Commission on 11 July 2023 issued a Certificate of Determination recording Member Burge’s determination of the dispute. That certificate was accompanied by Member Burge’s statement of reason in which the member specified that the issues about which the parties were in dispute and which required determination by him, were whether the respondent suffered injury or consequential condition to his cervical spine and whether the respondent suffered a consequential condition to his left hip. It is apparent therefore that subsequent to the respondent initiating proceeding in the Commission the parties agreed that the respondent had suffered a consequential condition to his left shoulder.
Member Burge was not satisfied that the respondent suffered an injury to his cervical spine.[1] Member Burge found that the respondent suffered a consequential condition to his cervical spine as a result of the respondent wearing a sling for a prolonged period after the respondent’s surgery to his right shoulder on 10 March 2017.[2] Member Burge also found that the respondent suffered a consequential condition to his left hip.[3]
[1] Risteski v MKD Transcorp Pty Ltd [2023] NSWPIC 334 at [23] and [30].
[2] Risteski at [31].
[3] Risteski at [51].
Member Burge remitted that the respondent’s claim for permanent impairment compensation to the President so that it could be referred to a Medical Assessor to assess the medical dispute between the parties relating to the degree of permanent impairment the respondent had from his injury and consequential conditions. That referral was done by a delegate of the President on 12 July 2023.
The Medical Assessor examined the respondent in response to that referral on 23 August 2023 and, as mentioned earlier, issued the MAC with respect to his assessment of the referred medical dispute on 22 September 2023.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. For reasons provided below the Appeal Panel did identify an error in the MAC and also found that the Medical Assessor did not apply correct criteria when making his assessment, but the Appeal Panel is able to correct these matters based on the material before the Appeal Panel. In other words, further clinical data to be obtained from a further of examination of the respondent would be of no utility.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s appeal raises issues with respect to the Medical Assessor assessment of the respondent’s impairment from the consequential condition to his cervical spine. No controversy has been raised regarding the Medical Assessor assessment of the respondent’s impairment relating to his right upper extremity, left upper extremity and left lower extremity.
The Medical Assessor recorded the following findings from his examination of the respondent’s cervical spine:
“Examination of the cervical spine revealed tenderness on the left side but no evidence of muscle spasm or muscle guarding. Flexion was full but extension was only 50% of predicted. Rotation to the left was full but to the right was decreased by 50% with reports of pain mostly on the left side. Lateral tilt to the left and right was 50% of predicted.
Neurological examination of both upper limbs revealed normal power, tone, and reflexes. He reported a patchy alteration in sensation in the left upper extremity, which did not follow a nerve root pattern. It was noted that he had a negative Tinel’s sign for carpal tunnel syndrome in both the right and left hands. The circumference of the right upper arm was 34cms, which was equal to the left upper arm. The circumference of the right forearm was 31cms compared to 30.5cms on the left.”
The Medical Assessor recorded that the respondent had reported he is unable to do gardening or outdoor activities due to pain and discomfort in his neck and in his shoulders. The Medical Assessor noted that the respondent was also unable to assist his wife with housework for the same reasons.
The Medical Assessor listed the radiological investigations the respondent had undergone. These included a CT scan of his cervical spine on 13 February 2018 and plain X-rays of his cervical spine done 29 July 2022.
Under the heading “Summary of injuries and diagnoses” the Medical Assessor noted that the respondent had aggravated “some pre-existing mild degenerate change in his cervical spine”.
The Medical Assessor correlated his findings from his examination of the respondent’s cervical spine with criteria within Table 15-5 of AMA 5 for DRE Cervical Category II. The Medical Assessor explained this was because the respondent had non-uniform loss of range of movement of his cervical spine, that is dysmetria. The Medical Assessor observed that that assessment based on that criteria allowed for a base rating of 5% whole person impairment (WPI). The Medical Assessor added 2% WPI to that for the impact the respondent’s impairment of his cervical spine had on his activities of daily living.
The Medical Assessor said that there was no evidence of pre-existing neck condition or impairment prior to the respondent’s injury on 7 October 2016. The Medical Assessor, having so concluded, did not make a deduction under s 323(1) of the 1998 Act for any pre-existing condition. Consequently, the Medical Assessor certified that he assessed the appellant had 7% WPI relating to his cervical spine. The Medical Assessor also certified that he assessed the appellant had 5% WPI relating the left upper extremity, 4% WPI relating to the right upper extremity and 2% WPI relating to left hip. The Medical Assessor combined those assessments to 18% WPI, He accordingly certified that was the respondent’s permanent impairment from his injury on 7 October 2016.
The Medical Assessor noted that his assessment of the respondent’s permanent impairment differed from what orthopaedic surgeon Dr Nabavi had earlier assessed it to be. Dr Nabavi was the medical specialist whom the respondent qualified to provide a forensic medical report to support his claim for compensation.
The Medical Assessor also observed that his assessment of the respondent’s permanent impairment differed from the assessment neurosurgeon and spinal surgeon Dr Khong made. Dr Khong was another medical specialist whom the respondent also qualified to provide forensic legal medical report.
The appellant had qualified orthopaedic surgeon Dr James Powell to provide forensic medical reports dated 14 May 2019, 10 July 2019, 14 April 2020 and 23 November 2020. All of those reports were before the Medical Assessor. The report of Dr Powell dated 23 November 2020 related only to Dr Powell’s examination of the respondent’s cervical spine. The Medical Assessor made no reference to that report in the MAC. Further, the Medical Assessor when identifying the material upon which his assessment was based listed the following:
“• The history I obtained from Mr Risteski
· My physical examination of Mr Risteski
· My review of his documentation
· My review of his relevant investigations”.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor denied the appellant procedural fairness because the Medical Assessor did not consider the reports of Dr Powell and had limited himself to a consideration of the evidence the respondent presented. The appellant submitted that it was unclear whether the Medical Assessor simply did not refer to the respondent’s evidence or failed to consider them entirely. The appellant submitted that its documents were relevant to the assessment the Medical Assessor undertook.
The appellant further submitted that the Medical Assessor erred with respect to his assessment of the respondent’s permanent impairment relating to the respondent’s cervical spine. The appellant submitted that the Medical Assessor findings from his examination of the respondent did not correlate with the criteria for DRE Cervical Category II and the Medical Assessor should have assessed the respondent as being within DRE Cervical Category I.
The appellant submitted that the respondent made no claim for the effect his impairment of his cervical spine had on his activities of daily living. The appellant further submitted that the Medical Assessor’s assessment of 2% WPI for activities of daily living was incorrect.
The appellant submitted that the respondent had a pre-existing condition in his cervical spine which was revealed by radiology. The appellant highlighted that Dr Powell in his report of 23 November 2020 expressed the view that the imaging demonstrated that the respondent had multilevel degenerative disease which was longstanding. The appellant submitted that the Medical Assessor should have made a deduction under s 323 for a proportion of the respondent’s permanent impairment that was due to that pre-existing condition.
In reply, the respondent submitted that it is unlikely that the Medical Assessor would have confined his review only to the documents he lodged. The respondent submitted that there is presumption that all documents that were referred to the Medical Assessor, which included the documents attached to the appellant’s reply, and the statement of reasons that Member Burge published for his findings. The respondent highlighted Member Burge rejected the opinion evidence of Dr Powell. The respondent submitted that the Medical Assessor’s assessment concurred with the statement of reasons of Member Burge.
The respondent submitted that he met the criteria for DRE Cervical Category II. The respondent highlighted that the Medical Assessor’s findings from his examination of him included his extension of his cervical spine was only to 50% and that his rotation was decreased by 50% on the right. The respondent highlighted that both Dr Khong and Dr Powell had assessed that he had 5% WPI relating to his cervical spine.
The respondent submitted that it did not matter that the medical specialists he qualified to provide reports to support his claim included any rating for the effect his cervical spine impairment had on his activities of daily living. The respondent submitted that the Medical Assessor was required to make an assessment in accordance with the Guidelines “which includes provision for an allowance for ADLs if within the SEC category range upon examination and interview”. The respondent submitted that because he was unable to do yard work and assist his wife around the house the Medical Assessor was correct to increase the base rating impairment allowed for DRE Cervical Category II by 2% for activities of daily living.
The respondent submitted that there is no clear evidence that the pre-existing degenerate condition in his cervical spine contributed to the impairment of his cervical spine until after he wore a sling. The respondent highlighted that there he did no complain of symptoms in his neck before the injury date. The respondent submitted that the existing pathology in his cervical spine at the time of injury did not then cause impairment.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The cervical spine and claim for activities of daily living
The Medical Assessor’s findings from his examination of the respondent’s cervical spine, as recorded in the MAC, reveal that the Medical Assessor conducted a thorough examination of the respondent’s cervical spine. The Medical Assessor’s findings included that the respondent could achieve full flexion of his cervical spine but could only achieve only 50% extension. Further, the Medical Assessor found that the respondent’s rotation of his cervical spine to the right was decreased by 50% whereas he had full rotation to the left. That reveals that the respondent had asymmetric range of motion of his cervical spine which is what the Medical Assessor concluded by stating that the respondent had “non-uniform loss of range of movement (dysmetria)”.
The criteria specified within Table 15-5 of AMA 5 for DRE Cervical Category II include finding from examination an asymmetric loss of range of motion. Accordingly, the Medical Assessor was correct to rate the respondent’s impairment of his cervical spine by reference to DRE Cervical Category II, which attracts a base rating of 5% WPI.
The Medical Assessor was also correct, in the Appeal Panel’s view, to add 2% WPI to that base rating, which the Medical Assessor did in accordance with the instructions of paragraph 4.33-4.35 of the guidelines. The Medical Assessor obtained a history that the respondent was unable to do gardening or outdoor activities due to the pain he had in his neck and shoulders and he was unable to assist his wife with the housework for the same reasons. The respondent’s impairment falls within the examples provided for a 2% WPI uplift within paragraph 4.35 of the Guidelines.
The Appeal Panel notes that the fact the respondent’s limitation in term of his activities of daily living is a consequence of both his impairment of his cervical spine and his impairment of his shoulders. The fact that his shoulders play a role is, however, no reason not to add or to reduce the amount to be added to the rating of the respondent’s impairment of his cervical spine pursuant to paragraphs 4.33-4.35 of the Guidelines, given that the impairment of the respondent’s cervical spine material contributes to his inability to undertake activities of daily living.
The fact that neither of the respondent’s qualified doctors included a component within their respective assessments a component for activities of daily living was no reason for the Medical Assessor not to do so. As the respondent submitted, the Medical Assessor was required to assess the respondent’s permanent impairment relating to the consequential condition he had in his cervical spine by reference to the criteria specified in the guidelines, which include paragraphs 4.33-4.35. That is what the Medical Assessor did. Had he not done so he would have based his assessment on incorrect criteria and also, as a consequence, been in error.
In any event, the Appeal Panel observes that whilst Dr Khong advised in his report dated 27 April 2022 that he assessed the respondent’s impairment relating to his cervical spine was 5% WPI, he also advised that he had not included in that assessment any rating for the effect the respondent’s permanent impairment had on his activities of daily living because he had assumed that had been added under the assessment that had been done of the respondent’s other affected body systems. He said:
“Note no percentage has been added ADLs assuming this was already added to other systems. If not, I would add 3% for capacity to undertake personal care activities affected”.
It must be noted that Dr Khong was only qualified by the respondent to assess his cervical spine. Dr Nabavi had been qualified to assess the respondent’s other body systems, and his assessments, based on the criteria by which he made his assessments, did not include any component for activities of daily living.
Simply put, the Medical Assessor was not in error in adding 2% WPI for the affect that the impairment of the respondent’s cervical spine had on his activities of daily living.
Section 323(1) deduction
The Appeal Panel considers that the Medical Assessor made an error by concluding that there was no evidence of a pre-existing neck condition as of the date of the respondent’s injury on 25 August 2023. Dr Sandeep Tiwari reported on a CT scan the respondent had done on his cervical spine on 12 February 2018, which was less than 18 months after the respondent’s injury on 7 October 2016. Dr Tiwari’s conclusion on what that scan revealed was as follows:
“Multilevel posterior disc bulge/osteophyte complexes indenting on the thecal sac but no canal stenosis. Multilevel neural exiting foraminal narrowing predominantly on the right side impinging on a number of exiting nerve roots. Multilevel facet joint arthritis as described.”
That is evidence that the respondent had degeneration in his cervical spine as of the date the CT scan was done. Noting the extent of the degeneration revealed by this scan and noting that the scan was done within 18 months of the date of injury, and noting too that the respondent was 59 years of age at the time he suffered injury, the likelihood is the degeneration that the CT scan revealed existed in the respondent’s cervical spine at the date of injury. There is little likelihood that that degeneration as revealed in the CT scan would have developed subsequent to the respondent’s injury. Further, the degeneration would not have deteriorated in any significant way between the respondent’s date of injury and the CT scan being done.
Member Burge found that with a “background of long established moderate to severe underlying cervical spine pathology” the respondent’s wearing of a sling following his shoulder surgery in March 2017 placed pressure on the respondent’s neck and precipitated the respondent’s cervical spine symptoms. In other words, the nature of the respondent’s consequential condition that Member Burge found the respondent had suffered was an aggravation of underlying pathology, which the Appeal Panel considers was in existence at the date the respondent suffered injury on 7 October 2016. Without that pre-existing degeneration in the respondent’s cervical spine the respondent’s impairment of his cervical spine as of the date of assessment would not be as great. Necessarily therefore the respondent’s pre-existing condition contributes to his cervical spine impairment.
Contrary to what the respondent submitted, it does not matter that the pre-existing degeneration in the respondent’s cervical spine was not causing him impairment immediately preceding the date upon which he suffered his shoulder injury. What is relevant is whether the pre-existing condition contributes to the respondent’s permanent impairment of his cervical spine at the time that permanent impairment is assessed. It does.
The extent to which the respondent’s pre-existing degeneration in his cervical spine contributes to his current permanent impairment is too difficult or costly to assess. In accordance with s 323 (1) of the 1998 Act the Appeal Panel therefore assumes that the deductible proportion to be made under s 323 (1) is 10%. That assumption is not at odds with the evidence, that evidence being that although the degeneration in the respondent’s cervical spine may have been longstanding as of the date he suffered his injury it was not affecting his capacity at that time and was asymptomatic. But for the event that precipitated the respondent’s impairment and symptoms from that degenerative pathology, being the wearing of a sling following his shoulder surgery, it may have been some time before the pathology manifested in symptoms or signs that impaired the respondent.
Procedural fairness
The obligation of a Medical Assessor under s325(2) of the 1998 Act does not require the Medical Assessor to refer in the MAC to every piece of evidence. The Medical Assessor must however consider all relevant evidence and it is an error for a Medical Assessor not to do so.[4]
[4] Tattersall v Registrar of the Workers Compensation Commission of NSW & Anor [2017] NSWSC 453 at [15]; Wentworth Community Housing Ltd v Brennan [2019] NSWSC 152 at [70]-[76].
The Medical Assessor did not make reference to the reports of Dr Powell, and specifically his report dated 23 November 2020 which related to the respondent’s cervical spine. Dr Powell in that report expressed his opinion that the respondent’s symptoms and impairment from his cervical spine was due to multilevel degenerate disease in the respondent’s cervical spine and this was unrelated to the respondent’s injury and further had nothing to do with the respondent’s shoulder surgery. Member Burge did not accept that opinion in so far as it related to whether the respondent’s shoulder surgery contributed to the respondent developing a condition in his cervical spine.
Dr Powell also assessed the respondent had 5% WPI relating to his cervical spine and expressed his further view that the entirety of that was due to the pre-existing condition the respondent had in his cervical spine.
The Medical Assessor expressed a different view in the MAC. The Medical Assessor said that there was no evidence that the respondent had a pre-existing condition in his cervical spine at the time he suffered injury on 10 March 2017.
It is unclear from the reasons the Medical Assessor provided in the MAC whether he did have regard to Dr Powell’s report. He does not mention it and an inference could be drawn from that that he did not have regard to it. If the Medical Assessor did not do so then he made an error because Dr Powell’s opinion as expressed in his report was relevant evidence.
Ultimately however if the Medical Assessor did not do so, and erred in that regard, that particular error would not affect the outcome in this matter. This is because, as the discussion above reveals, the Appeal Panel is of the view that Dr Powell’s opinion that the totality of the respondent’s permanent impairment of his neck relates to the pre-existing condition is wrong.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 August 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
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PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2480/23 |
Applicant: | Petar Risteski |
Respondent: | MKD Transcorp 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 Mark Burns 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) |
| Cervical spine | 7/10/2016 | Chapter 4 | Chapter 15 Table 15-5 Page 392 | 7% | 1/10 | 6% |
| Right upper extremity (shoulder) | Chapter 2 | Chapter 16 Figures 16-40, 16-43 & 16-46 Table 16-3 | 4% | - | 4% | |
| Left upper extremity (shoulder) | Chapter 2 | Chapter 16 Figures 16-40, 16-43 & Table 16-3 | 5% | - | 5% | |
| Left lower extremity (hip) | Chapter 3 | Chapter 17 Table 17-9 | 2% | - | 2% | |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
4
0