Namoi Cotton Co-Operative Ltd v Todd Galagher
[2022] NSWPICMP 380
•4 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Namoi Cotton Co-Operative Ltd v Todd Galagher [2022] NSWPICMP 380 |
| APPELLANT: | Namoi Cotton Co-Operative Ltd |
| RESPONDENT: | Todd Galagher |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 4 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Respondent submitted that the Medical Assessor (MA) erred in assessment of activities of daily living (ALDS) and in failing to address Mr Galagher’s history of pre-existing back and sciatic complaints and in failing to apply a deduction for pre-existing injury, condition or abnormality pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held – Panel confirmed assessment of ALDS but concluded MA erred in not making a deduction pursuant to section 323 of the 1998 Act; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 June 2022 Namoi Cotton Co-Operative Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 30 May 2022.
The respondent to the appeal is Todd Galagher (Mr Galagher).
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 pursuant to
s 327(3)(c) of the 1998 Act, 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.
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 reissued on 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 Galagher sustained an injury to his lumbar spine on 10 April 2017.
The matter was referred to the MA, Dr Tim Anderson, on 29 April 2022 for assessment of whole person impairment (WPI) of the lumbar spine (date of injury 10 April 2017).
The MA examined Mr Galagher on 23 May 2022 and assessed 15% WPI of the lumbar spine in respect of the injury on 10 April 2017.
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.
The appellant did not request that Mr Galagher be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Galagher to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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.
The MAC
The parts of the medical certificate given by the MA that are relevant to the appeal are set out 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.
The appellant’s submissions include the following:
(a) The MA failed to correctly apply the Guidelines (parts 1.27 and 1.28 in relation to a deduction) and therefore the assessment was made on the basis of incorrect criteria.
(b) The MA erred for the following reasons:
(i)by not providing adequate reasons as to why the MA provided an assessment of 2% WPI for interference of activities of daily living (ADLs);
(ii)by assessing Mr Galagher as having 2% WPI for interference with ADLs which was not supported by the activities the MA recorded Mr Galagher as being capable of performing;
(iii)by failing to address Mr Galagher’s history of pre-existing back and sciatic complaints as noted in his statement and treating medical evidence;
(iv)by failing to apply a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act, and/or
(v)by not providing any or any adequate reasons as to why a deduction for pre-existing injury, condition or abnormality is appropriate, having regard to the available evidence.
(c) In respect of the assessment of ADLs, the MA on page 3 of the MAC recorded the social activities/ADLs as follows:
“He tries to do some modest exercising including walking and occasionally swimming. They also have a dog. He enjoys going to his shed and doing some tinkering. This can include some lightweight welding. He can drive for about half an hour. For this assessment it took about five hours to drive to Orange. They had stops on the way. He is able to cut the grass at home with a ride-on mower. This takes him about 20 minutes on each occasion. He does his best to help around at home but this is restricted”.
On page 5 of the MAC, the MA simply stated that for interference of ADLs, Mr Galagher would qualify for a further 2% WPI. At the bottom of that page, the MA states that “2% is more appropriate”.
(d) The MA did not adequately explain how he determined that a 2% WPI assessment for interference with ADLs was appropriate, particularly in light of the social activities/ADLs that he recorded Mr Gallagher as being capable of performing. In this regard, the only restriction the MA appeared to record was the restriction with helping around the home. The MA did not detail what specifically, if anything, Mr Galagher was restricted in undertaking and whether he performed any such task/s prior to his injury.
(e) The MA did not comment on the opinion of Dr Doig, who reported Mr Galagher is “able to look after the yard and home duties and uses a ride-on lawn-mower. He is performing sporting activities, therefore only a 1% additional impairment is merited for the restrictions in activities of daily living at present” (Reply page 11).
(f) Having regard to Mr Galagher’s capabilities as recorded in the medical evidence and the MAC, the MA erred by not providing adequate reasons to support an assessment of 2% WPI, erred by not providing a lesser assessment, and/or erred by not providing reasons why a lesser assessment would be inappropriate. The MA ought to have concluded, based on the available evidence, that Mr Galagher has a 1% WPI in relation to interference with ADLs, consistent with that assessed by Dr Doig.
(g) In respect of pre-existing condition, injury and/or abnormality, on page 2 of the MAC, the MA stated: “No previous condition has been identified”. On page 6 of the MAC, the MA stated that, “there is no pre-existing condition which would reasonably necessitate the application of a deduction”.
(h) The MA did not adequately record a history of Mr Galagher’s pre-existing back and/or sciatic complaints.
(i) The MA had not referred to, and did not appear to have considered, Mr Gallagher’s statement (ARD page 1) where he specifically stated that he consulted various doctors from 2015 to June 2016 in relation to his back complaints.
(j) The MA did not refer to, and did not appear to have considered, the clinical records of Hillston Medical Centre (Reply page 15). The consultation notes were evidence of Mr Galagher having a pre-existing injury, condition or abnormality and demonstrated that Mr Galagher was symptomatic in the 12 months prior to the work injury. The clinical records of Hillston Medical Centre indicated the following:
(i)Mr Galagher had back pain and sciatic symptoms in December 2012/2013, causing him to undergo radiological investigations and treatment (Reply pages 15 and 19).
(ii)Mr Galagher had further back pain and sciatic symptoms in March 2016, related to a bulging disc at L5/S1, which was the level of the lumbar spine operated on in January 2018.
(iii)Following the onset of his symptoms in 2016, Mr Galagher underwent radiological investigations and a cortisone injection (Reply pages 16, 21, 22, 25, 28, 30, and 32).
(iv)Mr Galagher was referred to Dr Michael Ow-Yang, treating neurosurgeon, who diagnosed Mr Galagher with right S1 radicular pain secondary to a right L5/S1 disc protrusion. He considered surgery to be a treatment option (see Reply page 27).
(k) Mr Galagher’s pre-existing condition was considered by Dr Malcolm Pell, treating neurosurgeon. Dr Pell recorded that the work injury exacerbated Mr Galagher’s back pain, following an injury to his back some four years earlier. He recorded that, at the time [of the prior injury], Mr Galagher had back pain and right sided sciatica which settled with physiotherapy and peri-radicular steroid injection (Reply page 13).
(l) Dr Doig (Reply page 6) diagnosed Mr Gallagher with suffering a “recurrence of an L5/S1 inter-vertebral-disc herniation on the right side with persistent radiculopathy in the right leg, which has failed to resolve despite operative intervention”. He stated that the pre-existing condition had contributed to the impairment and he made a one-tenth deduction.
(m) The MA fell into error and ought to have concluded, based on the available evidence, including the clinical records of Hillston Medical Centre and the Mr Galagher’s statement, that Mr Galagher had a pre-existing condition, injury or abnormality in relation to his lumbar spine, which contributed to Mr Galagher ‘s current lumbar spine impairment.
(n) The MA fell into error by failing to provide a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act, in the face of evidence of Mr Galagher’s pre-existing condition, which caused back symptoms, including sciatic symptoms, leading to the suggestion of surgery, in the 12 months prior to the subject injury.
(o) Alternatively, the MA fell into error by failing to provide adequate reasons as to why it was not appropriate to provide a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act. The brief reasons provided by the MA (see paragraph 14 above) did not address the prior injury/conditions and were not adequate to discharge the MA’s obligations pursuant to the Guidelines.
(p) For the reasons discussed above, the MAC contained demonstrable errors and/or was based on incorrect criteria in relation to the assessment of 2% WPI for interference with ADLs and the MA’s failure to provide a deduction in relation to the pre-existing condition, injury and/or abnormality.
(q) The appellant seeks that the Appeal Panel review the MAC and provide an appropriate assessment for interference of ADLs and an appropriate deduction for pre-existing condition, injury or abnormality, pursuant to s 323 of the1998 Act.
The respondent’s submissions include the following:
(a) In respect of ADLs, the MA provided reasons as to why his opinion differed from that of the appellant. The MA clearly provided his reasoning for assessing 2% WPI for ADLs, and this was merely a difference in opinion in relation to clinical judgement.
(b) The history relating to ADLs taken by the MA was entirely consistent with Dr Dryson’s assessment for ADLs. Following a thorough history taking, Dr Dryson stated in report dated 27 May 2020 (page 23 ARD):
“He is independent in activities of self-care. He is able to carry out his household tasks, but does take it slowly and will lie down from time to time. He lives in a house with two bedrooms on one level. The property itself is level. He is able to mow the lawns, but uses a ride-on lawn mower to do that. He does not believe he could use a push mower. He is able to do his own cooking. He does his own grocery shopping, but does not carry heavy bags. He pushes the trolly to the car and unloads the groceries there. He is able to do his own laundry, but keeps the laundry baskets light”.
(c) Further, Dr Dryson, in report dated 17 December 2020, (at page 32 ARD), when specifically asked to comment on Dr Doig’s opinion regarding ADLs stated:
“I disagree with Dr Doig in respect of activities of daily living (WorkCover Guidelines, para 4.33, Page 27). I agree with Dr Doig that Mr Galagher is independent in activities of self-care. I did note in my report of 27 May 2020 that Mr Galagher did have impairments in home care activities, specifically he has to take his household tasks slowly and will lie down from time to time, he is unable to carry heavy grocery bags, he is unable to carry heavy laundry baskets. This is in contradistinction to Dr Doig who states that Mr Galagher is able to perform the domestic tasks inside the home. I prefer to take the testimony given by Mr Galagher to me, and using para 4.34 (WorkCover Guidelines p 28) 2% is appropriately added to the baseline of 10% = 12% Whole Person Impairment”.
(d) Further, interference with ADLs is required to be based on all clinical findings and other reports referring to restrictions to ADLs (the Guidelines page 5 at 1.25 and page 27 at 4.33). The following is relevant:
(i)Letter of Dr Manoharan, dated 24 July 2017.
(ii)The two Interact Injury Management reports outlining duties to avoid, which also are restrictions for activities of daily living. This was consistent with WorkCover certificates of capacity, and reports, confirming lifting limit between 10-15kg and noting the need to use of mechanical aids to lift heavy things (page 376 ARD, dated 29 April 2019).
(e) Mr Galagher’s statement outlined the disabilities that Mr Galagher experiences, all of which impact ADL and were consistent with the medical reports, WorkCover certificates of capacity and reports.
(f) The MA outlined modest walking and swimming as activities. Mr Galagher, prior to this work injury, was involved in heavy physical work. Now he has restrictions with bending, pulling, pushing and lifting. Swimming is a light activity which takes weight bearing away. Mr Galagher cannot play with his child, or pick them up, without sitting first (page 6 ARD). It follows that any home care will be difficult and will be interfered with due to the significant injury and subsequent surgery.
(g) Both Dr Dyson and the MA reviewed Dr Doig’s assessment of 1% for ALDs and disagreed with Dr Doig but agreed with one another. The MA on page 5 of the MAC outlined that he considers Dr Doig’s assessment and Dr Dryson’s assessment and found 2% was more appropriate. Considering the MAC in its entirety, the MA clearly provided reasoning for his allocation of 2% WPI for ADLs.
(h) The MA provided the exact same assessment as Dr Dryson and provided reasons as to why his assessment differs to Dr Doig. The MA did not err in his assessment or reasoning. In any event, the correct assessment is still 2% WPI.
(i) In respect of the submissions as to pre-existing condition, injury and/or abnormality, the MA clearly provided his opinion that there was no previous condition that had been identified, that was relevant in terms of requiring a deduction to being applied, and adequately recorded this opinion.
(j) On page 4 of the MAC, the MA specifically listed CT scan dated 03/03/2016, which predated the work injury, listing results as “Posterior protrusion at L5/S1 deviated towards the right”. This showed that the MA has considered the full clinical history prior to providing his opinion on page 5 of the MAC:
“Whilst there is evidence of degenerative change in Mr Galagher’s lower back, the radiological picture quite strongly suggests that the major focus of change at the L5/S1 articulation arose following this event of 10/04/17. I am therefore not persuaded that there is a need to apply a deduction”.
(k) The MA specifically listed the worker’s statement as being “particularly relevant for this assessment”.
(l) The Hillston Medical Centre clinical notes were contained in the ARD, starting at page 92. On page 5 of the MAC, the MA lists the facts on which he based his assessment of whole person impairment as:
·Detailed review of the file.
·Detailed clinical assessment.
·Review of the investigations
The Hillston Medical Centre clinical notes were contained the file that the MA reviewed, in detail.
(m) Dr Pell was a treating doctor and not a WorkCover trained doctor. With conservative treatment, the earlier symptoms from the earlier injury had settled and Mr Galagher was able to return to pre-injury duties up until the subject work injury on 10 April 2017. Furthermore, Dr Pell outlined the following (page 267 ARD/page 13 Reply):
“At that time he had back pain and right sided sciatica which settled with physiotherapy and peri-radicular steroid injection. With this current attack of pain, he said this was different, it is across the middle of his back with a burning sensation as well as numbness and paraesthesia over the outer aspect of the right leg and the back of the leg extending to the outer foot. This was not the pain which he had previously”.
Dr Pell was now outlining S1 distribution as being the issue, rather than any other level previously.
(n) Dr Dryson, in report dated 27 May 2022, addressed the period Dr Pell was referencing, at page 21 ARD:
“Mr Galagher had had previous episode of low back pain some two years prior. He did have some right-sided sciatica on that occasion but both the back pain and the sciatica had settled down after a few weeks. A CT scan of the lumbosacral spine, carried out on 3 March 2016, i.e., before the accident of 10 April 2017, was reported by Dr R Kodur as showing a posterior disc bulge of the L3/4 and L4/5 intervertebral discs with nerve root abutment and at the L5/S1 level there was a right posterior bulge impinging the right S1 nerve root.
Following the accident of 10 April 2017, Mr Galagher proceeded to a multi-planar multi-echo MRI of the lumbar spine, on 30 October 2017. It had been requested by orthopaedic surgeon Dr Malcom Pell. It was reported by Dr Gabby Freilich as follows, ‘L5/S1: Right-sided paracentral disc protrusion causes marked impingement on S1 nerve root to the right. Minimal impingement, exiting L5 on the right at level of formamina. Left foramen is intact’.
It is clear therefore the accident of 10 April 2017 has caused increased impingement on the right S1 nerve root.”
(o) In line with Dr Pell’s findings, Dr Dryson stated, at page 26 of ARD:
“The CT scan of the lumbar spine taken prior to the accident of 10 April 2017 did show mild degenerative disc disease at L4/5. The MRI scan taken after the accident of 10 April 2017, on 30 October 2017 did show evidence of degenerative disc disease at L5/S1 and mild degenerative disc disease at L3/4, but at L5/S1 there was a right-sided disc protrusion, which appears different to the posterior disc protrusion seen on the CT scan prior to the incident of 10 April 2017 and it in my opinion that Mr Galagher’s injury does represent a further disc protrusion on that occasion. The increase in nerve root impingement is also due to that accident. His symptoms are not due to the degenerative disease per se. – ie symptoms are due to the development of epidural fibrosis following surgery for the original injury. The epidural fibrosis is causing ongoing low back pain and intermittent right S1 sciatica
… at page 27:
Mr Galagher did have radiological evidence of a previous posterior disc bulge at L5/S1, but states that he had fully recovered from this and had no symptoms in respect of back pain or radiculopathy at the time of accident of 10 April 2017. No deduction therefore is made for pre-existing impairment”.
(p) The opinion of Dr Dryson is consistent with Mr Galagher’s statement that the back pain and sciatica settling down after a few weeks, the clinical records, particularly those of Dr Pell, and Mr Galagher’s ability to work 12 hour shifts, six days on two days off, in an extremely physical position (page 23 of ARD) and not being able to perform preinjury duties following the work injury on 10 April 2017.
(q) The ongoing radiculopathy was agreed to be due to post-operative changes with scarring around the nerve roots at L5/S1 level on right side (page 13 ARD, Dr Doig report dated 25 August 2020).
(r) Dr Doig had a different diagnosis of work injury to Dr Dryson. Dr Doig, at page 15 of ARD, made a diagnosis of:
“A recurrence of an L5/S1 inter-vertebral-disc herniation on the right side with persistent radiculopathy in the right leg, which has failed to resolve despite operative intervention”.
(s) Dr Dryson’s diagnosis, (at page 24 of ARD) was: “L5/S1 disc protrusion – post surgery, Epidural fibrosis, partly surrounding right S1 nerve root”.
(t) Dr Dryson opined that a deduction is not warranted (page 26 ARD):
“The CT scan of the lumbar spine taken prior to the accident of 10 April 2017 did show mild degenerative disc disease at L4/5. The MRI scan taken after the accident of 10 April 2017, on 30 October 2017 did show evidence of degenerative disc disease at L5/S1 and mild degenerative disc disease at L3/4, but at L5/S1 there was a right-sided disc protrusion, which appears different to the posterior disc protrusion seen on the CT scan prior to the incident of 10 April 2017 and it is my opinion that Mr Galagher’s injury does represent a further disc protrusion on that occasion. The increase in nerve root impingement is also due to that accident. His symptoms are not due to the degenerative disease per se.”
Dr Dryson, when considering the earlier disc bulge (page 27 of ARD) opined:
“Mr Galagher did have radiological evidence of a previous posterior disc bulge at L5/S1, but states that he had fully recovered from this and had no symptoms in respect of back pain or radiculopathy at the time of accident of 10 April 2017. No deduction therefore is made for pre-existing impairment”.
(u) The MA considered both diagnosis and opinions, and agreed with Dr Dryson (page 5 MAC):
“Whilst there is evidence of degenerative change in Mr Galagher’s lower back, the radiological picture quite strongly suggests that the major focus of change at the L5/S1 articulation arose following this event of 10/04/17. I am therefore not persuaded that there is a need to apply a deduction”.
(v) The MA applied his clinical judgement in determining assessing permanent impairment and considering whether a deduction was warranted (as required by the Guidelines, page 3 at 1.6). The MA specifically considered Dr Doig’s opinion and assessment and disagreed (page 5 of MAC).
(w) The MA’s assessment, including his opinion in relation to not apply a deduction was exactly the same. The MA adequately explained the basis of his deduction pursuant to s 323 of the 1998 Act.
(x) The MA did not make an error and has applied the Guidelines correctly. In his assessment of permanent impairment, he provided his clinical assessment on the day of the assessment and took Mr Galagher’s relevant medical history and all relevant medical information to determine that no deduction was applicable in the circumstance, in agreement with Dr Dryson and not in agreement with Dr Doig. The MA provided adequate reasons in the context of the MAC as a whole. As a result, the MA did not make an error in his consideration of s 323 of the 1998 Act. The MA also provided adequate reasons for his opinion.
(y) In conclusion, the MA did not err in his application and assessment of 2% WPI for activities of daily living.
(z) The MA correctly applied the Guidelines and AMA 5 in not applying a deduction from the assessment of WPI based on the worker’s statement, medical evidence, including the reports of Dr Dryson.
(aa) The assessment of the MA was not made on the basis of incorrect criteria and the MAC did not contain a demonstrable error. The MAC should be confirmed.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. 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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The MAC
Under “History relating to the injury”, the MA wrote:
“Mr Galagher related that on 10/04/17, he was using a lever bar (similar to a crowbar) to lever off a component of a machine so that he could change the bearing. He was pulling up on the bar, which was about at waist level at the time. Unfortunately as he pulled, he experienced severe lower back pain.
He saw his doctor. A CT scan was taken and it was identified that there was discogenic pathology at the L5/S1 articulation. His early treatment consisted of a trial of cortisone injections, but this did not help. Later he was referred to Specialist Neuro-surgeon, Dr Malcolm Pell. This discogenic pathology at L5/S1 deviated towards the right was confirmed and was managed by a micro-discectomy in January 2018. This gave him improvement. Later there was further deterioration with neurological radiation down his right leg. It was identified that this was due to scarring causing irritation, mostly of the S1 nerve root. This has been managed conservatively.”
Under “Details of any previous or subsequent accidents, injuries or conditions” the MA wrote: “No previous condition has been identified.”
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote:
“Mr Galagher gives a history of hurting his lower back quite badly in April 2017 while using a lever bar to pull up on a machinery component. This resulted in discogenic pathology at the L5/S1 level and deviated towards the right. This has been managed by a discectomy. Although this gave him improvement, he still has radiculopathy features down the right leg. Nevertheless, he has been able to get back to a useful occupation. This is very much lighter than he was doing beforehand and he is working full time.”
Under “Reasons for Assessment”, at 10(c) the MA assessed 15% WPI of the lumbar spine and wrote:
“Mr Galagher continues to have significant lower back dysfunction. There has been a surgical procedure, although this has not included a fusion. He is therefore assessed in DRE Lumbar Category Ill on Page 384, Table 15-03 of AMA 5. This provides a whole person impairment ranging between 10% and 13%, depending on the activities of daily living. For this he would qualify for a further 2%, giving 12%. He continues to have radiculopathy down the right leg. This is addressed in the SIRA Guidelines Page 29, Table 4. For continuing radiculopathy there is a further 3% whole person impairment to be combined. For figures of this magnitude, this is exactly the same as simple addition, which therefore gives Mr Galagher 15% whole person impairment”.
In commenting on the other medical opinions and findings, the MA wrote:
“My assessment is exactly the same as that of Specialist Occupational Physician, Dr Evan Dryson in his reports of 27/05/20 and 17/12/20.
Specialist Orthopaedic Surgeon, Dr Graeme Doig in his report of 25/08/20 has a slightly lower whole person impairment. The reason for this is that he has assessed 1% for the activities of daily living whereas I believe 2% is more appropriate. He has also deducted one-tenth for a pre-existing condition. Whilst there is evidence of degenerative change in Mr Galagher's lower back, the radiological picture quite strongly suggests that the major focus of change at the L5/S1 articulation arose following this event of 10/04/17. I am therefore not persuaded that there is a need to apply a deduction”.
Under “deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”. the MA wrote: “As advised, there is no pre-existing condition which would reasonably necessitate the application of a deduction.”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
ADLs
The appellant submitted that the MA erred in assessing Mr Gallagher as having 2% WPI for interference with ADLs as this was not supported by the activities the MA recorded Mr Galagher as being capable of performing.
Further, the appellant submitted that the MA failed to provide adequate reasons as to why he provided an assessment of 2% WPI for interference of ADLs.
Under “Social activities/ADL”, the MA wrote:
“He tries to do some modest exercising including walking and occasionally swimming. They also have a dog. He enjoys going to his shed and doing some tinkering. This can include some lightweight welding.
He can drive for about half an hour. For this assessment it took about five hours to drive to Orange. They had stops on the way.
He is able to cut the grass at home with a ride-on mower. This takes him about 20 minutes on each occasion.
He does his best to help around at home but this is restricted”.
The MA made an assessment of 2% for ADLs. He wrote:
“My assessment is exactly the same as that of Specialist Occupational Physician, Dr Evan Dryson in his reports of 27/05/20 and 17/12/20.
Specialist Orthopaedic Surgeon, Dr Graeme Doig in his report of 25/08/20 has a slightly lower whole person impairment. The reason for this is that he has assessed 1% for the activities of daily living whereas I believe 2% is more appropriate.”
The appellant submitted that the MA did not comment on the opinion of Dr Doig. The Appeal Panel did not accept this submission as the MA stated that he disagreed with Dr Doig’s assessment of ADLs.
Dr Doig, in his report dated 25 August 2020, reported Mr Galagher’s house had a small yard and he was “able to perform the domestic tasks inside the home although he is able to use his ride-on lawn mower”. He noted Mr Galagher had been unable to return to horse-riding and water-skiing. Dr Doig wrote:
“... he is currently able to look after the yard and home duties and uses a ride-on lawn-mower. He is performing sporting activities, therefore only a 1% additional impairment is merited for the restrictions in activities of daily living at present”
Dr Dryson, in a report dated 27 May 2020, found that Mr Galagher had impairments in homecare as well as yard/garden/sport/recreation wrote:
“He is independent in activities of self-care. He is able to carry out his household tasks, but does take it slowly and will lie down from time to time. He lives in a house with two bedrooms on one level. The property itself is level. He is able to mow the lawns, but uses a ride-on lawn mower to do that. He does not believe he could use a push mower. He is able to do his own cooking. He does his own grocery shopping, but does not carry heavy bags. He pushes the trolly to the car and unloads the groceries there. He is able to do his own laundry, but keeps the laundry baskets light”.
Further, Dr Dryson, in report dated 17 December 2020, (at page 32 ARD), when specifically asked to comment on Dr Doig’s opinion regarding ADLs stated:
“I disagree with Dr Doig in respect of activities of daily living (WorkCover Guidelines, para 4.33, Page 27). I agree with Dr Doig that Mr Galagher is independent in activities of self-care. I did note in my report of 27 May 2020 that Mr Galagher did have impairments in home care activities, specifically he has to take his household tasks slowly and will lie down from time to time, he is unable to carry (check working of Guidelines of interference) heavy grocery bags, he is unable to carry heavy laundry baskets. This is in contradistinction to Dr Doig who states that Mr Galagher is able to perform the domestic tasks inside the home. I prefer to take the testimony given by Mr Galagher to me, and using para 4.34 (WorkCover Guidelines p 28) 2% is appropriately added to the baseline of 10% = 12% Whole Person Impairment”.
In his statement dated 8 February 2022, Mr Galagher described the disabilities which impacting on his activities of daily living. These disabilities included:
(a) I cannot lift anything above the weight of 10kg without feeling pain in my back;
(b) I find it difficult to mow the lawn with a lawn mower that isn’t the ride-on mower;
(c) I find it difficult in participating in yard work and gardening which requires me to bend down and squat;
(d) I find it difficult to bend down to pick up the laundry basket, especially if it is heavy, putting socks on or picking up any dropped items;
(e) I used to enjoy and engage in regular exercise, which I have found difficult since my injury as any sudden movement aggravates my injury;
(f) I find it difficult to travel long distances in the car or on public transport as sitting for a prolonged period aggravates my injury;
(g) I can no longer play with the children in my family and family pets as sudden movements aggravate my back injury. I am unable to bend down and hug them without feeling pain, so I must do this while sitting down as opposed to bending. As a result, I am unable to pick them up at all, and
(h) I do not perform any tasks at home that require me to bend and lift heavy items including laundry baskets, shopping bags, etc. I avoid if possible making the beds, cleaning the bathroom and household floors and anything that involves having to bend down and lift.
The Appeal Panel finds that when the entirety of Mr Galagher’s statement is considered, together with the findings of the MA, it cannot be found that the MA has erred in allowing 2% for the effect of ADLs. The Appeal Panel also considered that this is the appropriate allowance and one where minds can differ, such as is evident when comparing the assessments of Dr Doig and Dr Dryson at 1 and 2% respectively. The Appeal Panel considered that while Mr Galagher, had a capacity to undertake personal care activities such as dressing, washing, toileting and shaving he is restricted with usual household tasks such as making beds, laundry and cleaning floors and that therefore 2% was the appropriate allowance.
The Appeal Panel concluded that although the MA could have provided more detail concerning interference with ADLs, his reasons were adequate when considered in the context of the findings made in the MAC.
As Mr Galagher submitted, at 4.33 of the Guidelines it states an assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other records. The Appeal Panel is satisfied that based on all of the material that was before the MA the assessment of 2% did not disclose error on the MA’s part.
Deduction for pre-existing condition or injury
The Guidelines at Part 2 under “Deductions for pre-existing conditions or injuries” at Guidelines 1.27 and 1.28 provide:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
Section 323 of the 1998 Act provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Ltd (2010) NSWSC 78 (Cole). Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 The reason for this statutory approach can readily be seen. It is entirely possible that a person could suffer such a catastrophic injury, that the presence or absence of any previous injury, pre-existing condition or abnormality, would make no difference at all to the impairment which resulted from the later injury. An injury which results in death, is an obvious example, albeit not one which would arise for consideration under this section. A more relevant example, in this case, is a second injury which severed the spine. Or, as was discussed in the authorities, an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case. An assumption of the kind here made, namely that surgery to the lumber spine, irrespective of outcome, must always result in a level of residual impairment which contributes to the level of impairment which follows a later injury, has no role to play in that assessment. What must be determined on the evidence is whether any proportion of the permanent impairment present after the second injury was due to the earlier injury.”
The appellant submitted that the MA erred in failing to address Mr Galagher’s history of pre-existing back and sciatic complaints as noted in his statement and treating medical evidence and in failing to apply a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act. Further, the appellant argued that the MA erred in not providing any or any adequate reasons as to why a deduction for pre-existing injury, condition or abnormality was not appropriate, having regard to the available evidence.
The Appeal Panel reviewed the evidence in this matter.
The MA wrote:
“Whilst there is evidence of degenerative change in Mr Galagher's lower back, the radiological picture quite strongly suggests that the major focus of change at the L5/S1 articulation arose following this event of 10/04/17. I am therefore not persuaded that there is a need to apply a deduction”.
Under “deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”. the MA wrote: “As advised, there is no pre-existing condition which would reasonably necessitate the application of a deduction.”
In his statement dated 8 February 2022, Mr Galagher wrote:
“17. In March 2016 I saw Dr Anik Bronstein due to pains from my lower back. I was diagnosed with Sciatica due to my lower back pain and was prescribed medication to manage the pain. My doctor also recommended I do a CT scan for my lumbar spine.
18. I performed a CT scan on 3 March 2016, which demonstrated that I had a posterior disc bulge of the L3/4 and L4/5 intervertebral discs with nerve root abutment and at the L5/S1 level there was a right posterior bulge impinging the right S1 nerve root.
19. On 21 March 2016, a spinal injection was performed but it was not successful, and I needed to take additional medication of Panadeine Forte.
20. In April 2016, Dr Anik Bronstein referred me to Dr Michael Ow-Yang who is a back specialist. Dr Ow-Yang was of the opinion I should be referred to Dr Terry Hillier, orthopaedic spinal consultant. However, the back pain and the sciatic had settled down after a few weeks”.
The clinical records of Hillston Medical Centre included the following:
(a) In an entry dated 18 December 2012, Dr Arik Bronstein noted: “Pain sciat rt lower limb invest pain” and prescribed Panadeine Forte, Brufen and Valium. He referred Mr Galagher for a CT scan of the lumbar spine.
(b) In an entry dated 3 March 2016 Dr Bronstein noted: “sciatica pain a refer to ct B pain control with brufen/maxigestic [sic] rest”. He referred Mr Galagher for a CT of the lumbar spine and prescribed Brufen and Panadeine Forte.
(c) In an entry dated 4 March 2016, Dr Bronstein noted: “we discussed CT report bulging L5/S1 plan cont previous med tcb Monday for further decision about ct guided inj – or referral.”
(d) In an entry dated 29 March 2016 Dr Bronstein noted: “improved back tcb in 2 wks time if not complete refer to physio and specialist”.
(e) In an entry dated 5 April 2016, Dr Bronstein reported referring Mr Galagher to a back specialist, Dr Michael Ow-Yang.”
(f) In an entry dated 16 May 2016, Dr Bronstein noted that Mr Gallagher wanted to be referred to Dr Hillier.
(g) In an entry dated 24 May 2016 Dr Bronstein referred Mr Galagher to Dr Terry Hillier.
Dr A Kyatt, radiologist, in a report of a CT scan of the lumbosacral spine dated 30 January 2013, noted:
“L5/S1; There is moderate loss of disc height which is worse on the right side associated with a broadbased posterior disc protrusion, more prominent on the right side, causing effacing of right recess and likely causing irritation of the right S1 nerve root within the lateral recess. No L5 nerve root impingement within the exiting foramina seen.”
Dr R K Kodur, radiologist, in a report of a CT scan of the lumbosacral spine dated 3 March 2016 noted: “Posterior disc bulge noted at L5/S1 level with impingement on the right S1 nerve root in the foraminal entry zone. No other evidence of impingement on the exiting nerve roots noted in the lumbar spine”.
In a referral to Dr Hillier dated 24 May 2016, Dr Bronstein noted Mr Galagher came to him in March 2016 complaining of lumbar back pain. Dr Bronstein noted that the CT showed L5/S1 “post disc bulging” and he referred Mr Galagher for a CT guided injection which improved his condition but not completely.
In a report dated 28 April 2016, Dr Michael Ow-Yang noted that Mr Galagher had been symptomatic for three months with significant pain radiating from the low back to the right gluteal region, posterior right thigh and calf as far as the ankle. He noted that Mr Galagher had tried non-steroidal anti-inflammatory medication and a CT guided lumbar steroid injection which had only partial effect. Dr Ow-Yang noted that Mr Galagher had a similar episode of pain three years ago which resolved.
Dr Ow-Yang made a diagnosis of right S1 radicular pain secondary to right L5/S1 disc protrusion. He noted that if the pain could be managed adequately over the next 12-14 months, the extruded disc may be re-absorbed and the pain improve. He considered it unlikely a CT guided injection would give improvement in symptoms. Dr Ow-Yang noted that surgery could be offered in the form of a L5/S1 laminectomy plus rhizolysis plus microdiscectomy.
Dr Malcolm Pell, treating neurosurgeon, in a report dated 13 November 2017 recorded that the work injury exacerbated Mr Galagher’s back pain, following an injury to his back some four years earlier. He recorded that, at the time of the prior injury, Mr Gallagher had back pain and right sided sciatica which settled with physiotherapy and peri-radicular steroid injection.
Dr Doig in a report dated 25 August 2020 diagnosed Mr Gallagher as suffering a “recurrence of an L5/S1 inter-vertebral-disc herniation on the right side with persistent radiculopathy in the right leg, which has failed to resolve despite operative intervention”. Dr Doig noted that there was a previous intervertebral disc injury at the L5/S1 level on the right side which appeared to settle down such that Mr Galagher was able to return to physically demanding employment and sports. He noted that there was no history of any lower limb symptoms from the previous injury. Dr Doig considered that therefore it appears that the incident in April 2017 aggravated the pre-existing pathology resulting in radiculopathy in the right leg. Dr Doug was of the opinion that the pre-existing condition had contributed to the impairment resulting from the work injury and made a 10% deduction for the pre-existing pathology at the L5/S1 level.
Dr Dryson, in report dated 27 May 2020, wrote:
“Mr Galagher had had previous episode of low back pain some two years prior. He did have some right-sided sciatica on that occasion but both the back pain and the sciatica had settled down after a few weeks. A CT scan of the lumbosacral spine, carried out on 3 March 2016, i.e., before the accident of 10 April 2017, was reported by Dr R Kodur as showing a posterior disc bulge of the L3/4 and L4/5 intervertebral discs with nerve root abutment and at the L5/S1 level there was a right posterior bulge impinging the right S1 nerve root.
Following the accident of 10 April 2017, Mr Galagher proceeded to a multi-planar multi-echo MRI of the lumbar spine, on 30 October 2017. It had been requested by orthopaedic surgeon Dr Malcom Pell. It was reported by Dr Gabby Freilich as follows, ‘L5/S1: Right-sided paracentral disc protrusion causes marked impingement on S1 nerve root to the right. Minimal impingement, exiting L5 on the right at level of formamina. Left foramen is intact’.
It is clear therefore the accident of 10 April 2017 has caused increased impingement on the right S1 nerve root.”
Dr Dryson noted that Mr Galagher described his work as a cotton ginner with the respondent as heavy at times and involved working 12 hour days for 6 days on and 2 days off.
Dr Dryson then stated:
“The CT scan of the lumbar spine taken prior to the accident of 10 April 2017 did show mild degenerative disc disease at L4/5. The MRI scan taken after the accident of 10 April 2017, on 30 October 2017 did show evidence of degenerative disc disease at L5/S1 and mild degenerative disc disease at L3/4, but at L5/S1 there was a right-sided disc protrusion, which appears different to the posterior disc protrusion seen on the CT scan prior to the incident of 10 April 2017 and it is my opinion that Mr Galagher’s injury does represent a further disc protrusion on that occasion. The increase in nerve root impingement is also due to that accident. His symptoms are not due to the degenerative disease per se”.
Dr Dryson noted that Mr Galagher did have radiological evidence of a previous posterior disc bulge at L5/S1, but Mr Galagher stated that he had fully recovered from this and had no symptoms in respect of back pain or radiculopathy at the time of accident of 10 April 2017. Dr Dryson, therefore, made no deduction for pre-existing impairment.
The Appeal Panel considered that the MA failed to properly address Mr Galagher’s history of pre-existing back and sciatic complaints. The Appeal Panel considered that the MA erred in not providing adequate reasons as to why a deduction for pre-existing injury, condition or abnormality was not appropriate, having regard to the available evidence.
The Appeal Panel accepted that s 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality”.
The Appeal Panel considered that Mr Galagher had a pre-existing condition in his lumbar spine, namely, degenerative disc disease at L5/S1. The CT scan dated 3 March 2016 showed posterior disc bulge of the L3/4 and L4/5 intervertebral discs with nerve root abutment and at the L5/S1 level there was a right posterior bulge impinging the right S1 nerve root.
The Appeal Panel was satisfied that the degenerative disc disease at L5/S1 contributed to the current impairment assessed by the MA. Mr Galagher had a history of previous back pain in 2012 and 2016. He was referred for CT scans of the lumbar spine, prescribed medication, had physiotherapy, was referred to neurosurgeons in 2016 and had cortisone injections. Dr Ow-Yang discussed the possibility of surgery at L5/S1 level of the spine in 2016.
However, after considering the evidence including the work duties Mr Galagher performed before the injury on 10 April 2017, the Appeal Panel decided to apply a one-tenth deduction pursuant to s 323(2) as the required deduction would be difficult to determine. On balance, the Appeal Panel did not consider that a one tenth deduction was at odds with the evidence.
Therefore, the Appeal Panel assessed Mr Galagher as DRE Category III of the lumbar spine with 10% WPI and added 2% WPI for ADLs giving a total of 12% WPI. To this figure an additional 3% was combined for residual radiculopathy giving 15% WPI. A deduction of
one-tenth (1.5%) was applied for pre-existing condition resulting in 13.5% which was rounded up to 14%WPI. The final combined WPI was 14% WPI.For these reasons, the Appeal Panel has determined that the MAC issued on
30 May 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 before 1 January 2002
Matter Number: | W2124/22 |
Applicant: | Todd Galagher |
Respondent: | Namoi Cotton Co-Operative 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 Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below.
Table - Whole Person Impairment (WPI)
Table 2 - Assessment in accordance with AMA 5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002
| 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 | % WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar Spine | 10.04.17 | Chapter 3, p 13 | Table 15-3, p 384 | 15% | 1/10th | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
2
0