Morgan v Crookwell Taralga Aged Care Ltd
[2021] NSWPICMP 97
•22 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Morgan v Crookwell Taralga Aged Care Ltd [2021] NSWPICMP 97 |
| APPELLANT: | Shaylee Morgan |
| RESPONDENT: | Crookwell Taralga Aged Care Ltd |
| APPEAL PANEL: | Member Jane Peacock Dr Brian Noll Dr Margaret Gibson |
| DATE OF DECISION: | 22 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Injury to lumbar spine; Medical Assessor assessed DRE Category II despite the applicant undergoing surgery and on the basis there was no assessable radiculopathy; according to paragraph 4.37 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, the appellant is entitled to an assessment of DRE Category II because of the surgery notwithstanding the absence of residual radiculopathy; Held- MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 April 2021 Ms Shaylee Morgan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr You-Key Ho, a MA, who issued a Medical Assessment Certificate (MAC) on 18 March 2021.
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 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 WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should not undergo a further medical examination because even though the Appeal Panel was satisfied as to error by the MA, there was sufficient material before the Appeal Panel to enable them to determine the matter.
EVIDENCE
Documentary 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 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.
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. 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 matter was referred to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· the degree of permanent impairment of the worker as a result of an injury (s319(c))
· whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
· whether impairment is permanent (s319(f))
· whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
· Date of injury: 8 March 2017
· Body part/s referred: Lumbar spine
· Method of assessment: Whole person impairment”
The MA issued a MAC certifying as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in Workers Compensation Guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Lumbar Spine | 8 March 2017 | Section 4.34 | Table 15-3 | 7% | 0 | 7% |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
The worker appealed.
The appellant submitted in summary as follows:
· The MA in assessing the DRE II has failed to consider the neurological symptoms exhibited by the appellant during examination as well as radiological and other medical evidence contained in the Application.
· The MA’s findings of no neurological deficit are contrary to the radiological findings that were conducted prior to the surgery.
· An assessment of DRE III is more appropriate given that the appellant has showed symptomatic radiculopathy before and after the surgical intervention.
· The appellant acknowledges that Dr Darveniza in his report has wrongly assessed DRE IV, with reference to the coFlex device.
The respondent worker submitted that the MA did not err and the MAC should be confirmed and made submissions in summary as follows:
· The MA’s findings on examination do not satisfy DRE Lumbar Category III. The MA has specifically noted that there were no features of radiculopathy to justify DRE Lumbar Category III.
· The postsurgical lumbar spine MRI dated 8 July 2019 (page 262 of the Application to Resolve a Dispute) concluded “no canal narrowing or exiting nerve root compromise detected”.
The MA’s clinical findings on the day of assessment were as follows:
“She is limping. She uses crutch on the right side just to be stable and confident to walk. The back has a scar about 6cm in the lumbosacral junction in the midline. There is tenderness over there. Movement is very restrictive. Forward flexion finger cannot even touch the knee joint, extension was also restricted to less than 75% of normal. Similarly for the sideward twisting. Straight leg raising test is most interesting. In the sitting position she can lift the left leg up to at least 70˚ without trouble, the right side when we tried to lift it up to 50˚ the whole leg shake and then we stop and put the legs down again. In the lying position straight leg raising on the left is only 30˚. The right side is only 10˚ and then once again the whole leg shakes. I cannot find any obvious neurology in the legs in terms of motor power, sensation and reflex jerks. On taped measurement the right calf is still bigger than the leg and being right handed that is consistent and not explainable if she really has significant problem on the right leg as she mentioned.”
The MA’s clinical findings on the day do not fulfil the criteria for radiculopathy according to WorkCover Guides paragraph 4.27 (page 27) which provides as follows:
“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):
i.loss or asymmetry of reflexes
ii.muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
iii.reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
iv.positive nerve root tension (AMA5 Box 15-1, p 382)
v.muscle wasting – atrophy (AMA5 Box 15-1, p 382)
vi.findings on an imaging study consistent with the clinical signs (AMA5, p 382).”
This criterion for assessment of DRE III is therefore not applicable.
The imaging studies alone do not influence the decision regarding the DRE Category. In this regard, the WorkCover Guides paragraph 4.20 (page 25) provide as follows:
“4.20 While imaging and other studies may assist medical assessors in making a diagnosis, the presence of a morphological variation from ‘normal’ in an imaging study does not confirm the diagnosis. To be of diagnostic value, imaging studies must be concordant with clinical symptoms and signs. In other words, an imaging test is useful to confirm a diagnosis, but an imaging study alone is insufficient to qualify for a DRE category (excepting spinal fractures).”
The appellant underwent an operation following the work-related injury (decompression of the right L5/S1 level). The Workcover guides paragraph 4.37 provide as follows:
“4.37 Effect of surgery: AMA5 tables 15-3 to 15-5 (pp 384, 389 and 392) do not adequately account for the effect of surgery on the impairment rating for certain disorders of the spine. The assessor should note that:
i.Surgical decompression for spinal stenosis is DRE category III (AMA5 Table 15-3, 15-4 or 15-5)
ii.Operations where the radiculopathy has resolved are considered under the DRE category III (AMA5 Table 15-3, 15-4 or 15-5).
iii.Operations for spinal fusion (successful or unsuccessful) are considered under DRE category IV (AMA5 Table 15-3, 15-4 or
15-5)iv.DRE category V is not to be used following spinal fusion where there is a persisting radiculopathy. Instead, use Table 4.2 in the Guidelines
v.Radiculopathy persisting after surgery is not accounted for by AMA5 Table 15-3, and incompletely by tables 15-4 and 15-5, which only refer to radiculopathy that has improved following surgery.
Table 4.2 indicates the additional ratings which should be combined with the rating determined using the DRE method where an operation for an intervertebral disc prolapse, spinal canal stenosis or spinal fusion has been performed.
Example 15-4 in AMA5 (p 386) should therefore be ignored.
Table 4.2: Modifiers for DRE categories following surgery
Procedures Cervical Thoracic Lumbar Spinal surgery with residual symptoms and radiculopathy (refer to 4.27 in the Guidelines) 3% 2% 3% Second and further levels 1% each additional level 1% each additional level 1% each additional level Second operation 2% 2% 2% Third and subsequent operations 1% each 1% each 1% each ”
An assessment of DRE III is therefore applicable even in the absence of evidence of residual radiculopathy.
Accordingly, the correct assessment according to the criteria in the Guides is that the spinal operation for surgical decompression falls into DRE Category III with 10% whole person impairment (WPI). An addition of 2% WPI for limitation of activities of daily living (ADLs) would give a total of 12% WPI.
The allocation of 2% for limitation of ADLs was not appealed and there was no appeal in relation to any s 323 deduction.
This means that the correct assessment of WPI is 12% as a result of the injury on 8 March 2017. Accordingly, the panel will revoke the MAC and issue a new certificate in accordance with the panel’s assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 March 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr You-Key Ho 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 Workers Compensation Guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Lumbar Spine | 8 March 2017 | Section 4.34 | Table 15-3 | 12% | 0 | 12% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
Jane Peacock
Member
Dr Brian Noll
Medical Assessor
Dr Margaret Gibson
Medical Assessor
22 June 2021
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