Nguyen v Integricare Pty Ltd
[2023] NSWPICMP 3
•9 January 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Nguyen v Integricare Pty Ltd [2023] NSWPICMP 3 |
| APPELLANT: | Thuy Phuong Nguyen |
| RESPONDENT: | Integricare Pty Ltd |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 9 January 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Medical Assessor (MA) found appellant’s permanent impairment of her thoracic spine correlated with criteria of diagnosis related estimate (DRE) II; whether appellant had compression fracture of thoracic vertebra and met the criteria of DRE IV; the issue of whether appellant had fracture of thoracic vertebra was a medically contestable issue based on evidence available to MA; MA required to discuss all relevant evidence relating to that issue; MA did not and consequently the Medical Assessment Certificate (MAC) contained a demonstrable error; Appeal Panel called for further medical records relating to the issue, specifically the films of all scans done of the appellant’s thoracic spine; those further medical records revealed the appellant did not have a fracture of her thoracic vertebra but rather a congenital vertebral abnormality; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 October 2022 Thuy Phuong Nguyen, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor.
The medical dispute that a delegate of the President of the Personal Injury Commission (Commission) referred to Medical Assessor Giblin to assess related to the degree of permanent impairment of the appellant from an injury she suffered on 7 July 2014 whilst working for Integricare Pty Ltd, the respondent. The medical dispute was described in the referral in these terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM 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: 21 April 2004
Body part/s referred: left upper extremity (left shoulder), cervical spine and
thoracic spine (as agreed)
Method of assessment: Whole Person Impairment”
Medical Assessor Giblin issued a Medical Assessment Certificate (MAC) in response to that referral on 13 September 2022, in which he certified he assessed the appellant had 14% whole person impairment (WPI) from her injury. In a table appended to the MAC, he set out the separate components comprising the appellant’s WPI and how those components combined to comprise the appellant’s WPI from his injury. That table was in the following form:
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)
1. Cervical spine
7/7/2014
Chapter 4
Page 26
Page 392
Table 15.5
DRE 2 category
5%
1/10th
5%
2. Left lower extremity
7/7/2014
Chapter 2
Page 13
Chapter 16
3%
0%
3%
3. Thoracic spine
7/7/2014
Chapter 4
Page 26
Page 389
Table 15.4
DRE 2 category
7%
1/10th
6%
Total % WPI (the Combined Table values of all sub-totals)
14%
The appellant’s appeal relates to the assessment of her permanent impairment of her thoracic spine. The appellant relies on the ground for appeal provided in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), being that the MAC contains a demonstrable error.
A delegate of the President was satisfied that, on the face of the application, at least one ground of appeal has been made out, and accordingly the appeal progressed to the Appeal Panel for hearing.
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 Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment with the respondent in 2011, working as a childcare worker. On 7 July 2014 she was assisting a colleague pushing a bookshelf that was 1 m high and weighing about 40 kg. Whilst doing that she heard a crack in her upper back and felt sharp pain in her back, neck and left shoulder.
The appellant’s solicitors arranged for the appellant to be assessed by occupational physician Dr Uthum Dias on 12 October 2020 and to report on various aspects about the appellant’s injury. In a report dated 12 October 2020 Dr Dias advised the appellant’s solicitors that he diagnosed that as a result of her injury the appellant suffered:
(a) a persistent aggravation of pre-existing degenerative cervical spondylosis with an associated C5/C6 disc protrusion and associated non-specific left upper limb sensory symptomology, secondary to acute musculoligamentous strain;
(b) a persistent aggravation of pre-existing degenerative thoracic spondylosis with associated acute T3 vertebral body compression fracture (with a loss of vertebral body height of 80%) secondary to an acute strain;
(c) a chronic left shoulder impingement syndrome with associated subacromial bursitis, secondary to an acute rotator cuff tendon strain, and
(d) a consequential right shoulder pain, stiffness and discomfort with associated subacromial bursitis and an associated partial thickness supraspinatus tendon tear, secondary to over compensation for her left shoulder condition.
Dr Dias further advised that he assessed the appellant had 31% WPI from her injury, comprising 6% WPI for her cervical spine, 18% WPI for her thoracic spine, 8% WPI for her left shoulder and 2% WPI for her right shoulder. Relevant to the appeal, Dr Dias advised that the appellant qualified for her impairment with respect to her thoracic spine to be rated under DRE Thoracic Category IV, in accordance with Table 15-4 of AMA 5, because the appellant had sustained a significant compression fracture to the T3 vertebral body with approximately 80% loss of vertebral body height. Dr Dias based his opinion on what was revealed by a whole body scan with SPECT/CT that the appellant had on 6 April 2018. Dr Dias noted that rating based on DRE Thoracic Category IV equates to 20% WPI but Dr Dias considered that “a deductable proportion of 1/10th should be subtracted due to pre-existing degenerative changes in the appellant’s thoracic spinal region”.
On 26 October 2020 the appellant’s solicitors wrote to the respondent advising it that the appellant claimed compensation of $63,525 pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 31% WPI resulting from her injury. Following that the respondent’s solicitor organised for the appellant to be examined by orthopaedic surgeon
Dr Richard Powell on 27 November 2020. Dr Powell provided a report to the respondent’s solicitors on 11 January 2021 in which he advised that the injury the appellant suffered on
7 July 2014 was a musculoligamentous injury of her cervical spine and thoracic spine and aggravation of some underlying degenerative and pre-existing pathology in the cervical and thoracic spine. Dr Powell said that the aggravation would have settled and that her ongoing symptoms were consistent with the natural history of a well established pre-existing multi level degenerative pathology that the appellant had within her cervicothoracic spine.
Dr Powell advised that he did not believe that the appellant had any current impairment as a result of her injury on 7 July 2014.On 28 January 2021, the respondent’s insurer wrote to the appellant, care of her solicitors, notifying her that it denied liability for her claim for compensation under s 66 of the 1987 Act. It advised her that it did not agree that she had suffered and an injury to her upper extremities and that it did not “believe that you are eligible for permanent impairment lump sum compensation because your accepted physical injury has not resulted in more than 10% permanent impairment as required by Section 66(1) of the Workers Compensation Act 1987”.
For completeness the Appeal Panel notes that in a subsequent report of 16 February 2021 to the respondent’s solicitors Dr Powell further advised, in response to specific questions the respondent’s solicitors put to him, that he did not believe that the appellant sustained any frank injury to her left upper extremity in the incident on 7 July 2014 or suffered an injury or consequential injury to her right upper extremity as a result of the incident on 7 July 2014.
Thereafter the appellant commenced proceedings against the respondent in the Commission seeking determination of her claim for compensation for permanent impairment. The matter was referred to Member Ms Jacquelyn Snell who with the consent of the parties entered an award for the respondent with respect to the appellant’s allegation of consequential condition to the right upper extremity (right shoulder) and made various procedural orders including remitting the appellant’s claim for compensation for permanent impairment from her injuries “to her left upper extremity (left shoulder), cervical spine and thoracic spine (as agreed) to the President for referral to a Medical Assessor”. A delegate of the President duly did so on 26 July 2022 and, as mentioned above, in response to the referral, the Medical Assessor issued the MAC on 13 September 2022 in which he certified that appellant’s impairment was 14% WPI.
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 it did not need the appellant to undergo further medical examination. This is because the Appeal Panel considered that it would obtain no useful information with respect to the issue the appellant raised in her appeal, in addition to that which is already before the Appeal Panel, from a further examination of the appellant.. The Appeal Panel considered however that there were medical records, namely the original films of several radiological examinations the appellant had of her thoracic spine, that would assist it in its determination of the appeal. The Appeal Panel consequently called for the production of that material from the appellant. Specially the documents the Appeal Panel called for were the films of the following investigations:
(a) chest X-ray on 23 July 2014;
(b) MRI of the cervical spine on 25 March 2015;
(d) thoracic X-ray on 11 November 2015;
(e) whole body bone spect and CT on 28 January 2016;
(f) MRI of the thoracic spine on 6 June 2016, and
(g) whole body bone spect and CT on 6 April 2018.
The appellant subsequently produced those records to Dr Drew Dixon of the Appeal Panel.
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. The Appeal Panel has also had regard to the films of the investigations listed at [16].
MEDICAL ASSESSMENT CERTIFICATE
As mentioned the appellant’s Appeal relates to the Medical Assessor’s assessment of her permanent impairment of her thoracic spine. Relevant to that, the Medical Assessor obtained a history relating to the appellant suffering injury that included the appellant hearing a cracking sound in her upper back and feeling sharp pain in her neck and left shoulder when she was pushing a bookshelf on 7 July 2014. The history the Medical Assessor obtained also included that the appellant’s symptoms had never fully resolved more than seven years after her injury. The Medical Assessor recorded that the appellant described suffering pain in her upper thoracic area.
The Medical Assessor recorded the following findings from his examination of the appellant’s thoracic spine:
“Her thoracic spine was examined and there was focal midline bony tenderness at about T4. The active range of motion in the coronal plane was asymmetric and productive of the complaint of other thoracic pain without any leading questions.
There was no evidence of neurological compression in the thoracic spine examination.
Although there was thoracic paraspinal guarding, there was no evidence of altered sensation or burning radicular pain in a thoracic nerve root distribution.”
The Medical Assessor had regard to the reports of numerous radiological investigations the appellant had undergone since suffering her injury. The Medical Assessor recorded brief comments within the MAC regarding those investigations. Importantly with respect to the issue raised in the appeal, the Medical Assessor noted that a whole body bone scan with SPECT, which the appellant had done on 6 April 2018, was reported to reveal changes at T3 consistent with an acute stress micro-fracture involving the anterior of the right fourth rib and also changes at T3 representing previous partial compression fracture.
The Medical Assessor diagnosed the appellant as having suffered a mechanical soft tissue injury affecting her left shoulder, upper thoracic and cervical spine.
As mentioned earlier, the Medical Assessor considered that the appellant’s permanent impairment relating to her thoracic spine correlated with the criteria for DRE Thoracic Category II of Table 15.4 of AMA 5. That attracted a rating of between 5 and 8% WPI, depending upon the effect the appellant’s injury had on her activities of daily living (ADLs). With respect to that the Medical Assessor said that he was satisfied that the appellant had 2% WPI for ADLs. (The Appeal Panel observes that that assessment is not challenged by the appellant in her Appeal.)
Relevant to the Medical Assessor’s finding that the appellant’s thoracic spine met the criteria for DRE Thoracic Category II, the Medical Assessor considered that “the supposed fracture at T3, was not associated with acute disabling pain which would be seen in the normal course of that clinical diagnosis”. The Medical Assessor said that “I did consider a DRE 3 classification for the thoracic spine but there is no ongoing neurological impairment in the thoracic cage”. The Medical Assessor said that “there was asymmetry in terms of active range of motion, with muscle spasm as well as structural abnormalities located within the thoracic spine radiological investigation”. He said that “on that basis I am satisfied there was a DRE II category injury attracting 5% WPI”.
The Medical Assessor made the following comment regarding the findings reported from the SPECT scan the appellant had on 6 April 2018, on which Dr Dias had relied to conclude that the appellant suffered a compression fracture of the T3 of approximately 80%:
“The reported radiological changes of structural abnormalities within the thoracic spine are moderately severe at the T3 level. However, this is a congenital anomaly which, is a vulnerability per se. On the basis of the eggshell skull principle, this does not rate as a source of deduction under Section 323.”
The Medical Assessor did however make a deduction under s 323(1) of 10% due to degeneration of the appellant’s thoracic spine at T4, explaining as follows:
“However, she does have some minor degeneratrive (sic) changes at T4 and these are
commented upon in the x-ray of the thoracic spine 30 May 2015. On that basis I have made a deduction of 1/10th under Section 323 leaving a subtotal of 6%WPI.”
The Medical Assessor noted that Dr Dias had concluded that the appellant’s impairment relating to her thoracic spine correlated with the criteria for DRE IV, and that that was based on Dr Dias finding that the appellant had a compression fracture of T3 of approximately 80%. The Medical Assessor said, in parenthesis, that “the clinical history is not compatible with a fracture”.
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 did not refer to the whole of the findings from the whole body SPECT/CT scan she had on 6 April 2018 and did not discuss the reference within that scan to an 80% loss of height of the T3 vertebra. The appellant submitted that that omission on the part of the Medical Assessor was “serious”. The appellant submitted that the Medical Assessor did not explain why he did not accept that finding. The appellant submitted that the Medical Assessor’s finding that the “supposed fracture at T3 was not associated with acute disabling pain, normally seen in the course of that diagnosis” is at odds with the finding of the scan that there was an 80% loss of height of the T3 vertebra, with the fact she suffers pain in her thoracic spine, her being unable to work, her having a restricted lifestyle since the injury, and her having to take pain killers.
In reply, the respondent submitted that the Medical Assessor did refer to the whole body SPECT scan done on 6 April 2018 and consequently had regard to that scan when assessing the appellant’s impairment of her thoracic spine. The respondent submitted that the Medical Assessor also referred to other X-rays and scans the appellant had done. The respondent submitted that the Medical Assessor did not consider the fracture that was “evident at T3” was the result of the appellant’s injury. The respondent submitted that the Medical Assessor considered the radiological changes of structural abnormality at the T3 level was the result of a congenital abnormality. The respondent noted that the Medical Assessor referred to the appellant’s treating doctor’s record dated 15 July 2014 which did not reveal any reference to thoracic spine symptoms. The respondent submitted that the Medical Assessor did not err by not basing his assessment on the whole body scan of
6 April 2018. The respondent submitted that the Medical Assessor considered all available evidence and concluded that the loss of height at T3 vertebra was a congenital structural abnormality that did not result from the injury the appellant suffered.
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.
Section 325(2)(c) of the 1998 Act requires a Medical Assessor to set out within the MAC his or her reasons for the assessment he or she has made of the matters referred for assessment. The reasons must be sufficient to reveal the actual path by which the MA arrives at his or her assessment.[1] In a circumstance where an opinion or conclusion is self-evident to medical practitioners and there is no medical contest regarding it, the reasons a Medical Assessor provides do not need to be extensive or comprehensible to a person with no medical expertise. If, however, a conclusion may be medically contestable, based on the evidence, then the MA will need to address all the relevant evidence so as to expose the path of his or her reasoning in order to explain the conclusion to which he or she came.[2]
[1] See Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA43 at [55] and Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC1320 at [73] – [79].
[2] See Vitaz at [34]; see also Campbelltown City Council V Vegan & Ors [2006] NSWCA 284 at [121]-[122].
The criteria specified within Table 15-4 of AMA 5 for DRE Thoracic Category IV are as follows:
“Alteration of motion segment integrity or bilateral or multilevel radiculopathy; alteration of motion segment integrity is defined from flexion and extension radiographs as
translation of one vertebra on another of more than 2.5 mm; radiculopathy as defined in thoracic category III need not be present if there is alteration of motion segment integrity; if an individual is to be placed in DRE thoracic category IV due to radiculopathy, the latter must be bilateral or involve more than one level
or
fractures: (1) more than 50% compression of one vertebral body without residual neural compromise”
It is the second set of criterion that is relevant in this case.
The signs the appellant exhibited during the Medical Assessor’s examination of her thoracic spine, and as recorded by the Medical Assessor in the MAC, correlate with the criteria for DRE Thoracic Category II. The Medical Assessor did not consider that the appellant suffered a fracture of a thoracic vertebra. This is because the appellant did not at the time she suffered injury experience disabling pain that would be associated with a fracture of a thoracic vertebra. The Medical Assessor’s finding was consistent with the fact the appellant’s general practitioner record of the initial consultation following the appellant’s injury did not include any note about thoracic pain. The Medical Assessor referred to the imaging studies of the appellant’s thoracic spine to conclude that the appellant had a congenital abnormality in her thoracic spine at the T3 level. In other words he concluded that the abnormality at that level was not a compression fracture.
The radiologists who reported on the whole body bone SPECT CT scan the appellant had done on 6 April 2018 concluded that there was approximately 80% reduction in the vertebral height involving the posterior portion of the T3 vertebra without osteoblastic reaction which would most likely represented a previous partial compression fracture of the T3 vertebra that was now completely healed. Dr Dias relied upon that finding to conclude that the appellant had suffered an acute T3 vertebral body compression fracture.
Given that the radiologists and Dr Dias concluded that the pathology at the appellant’s T3 vertebra was a compression fracture whereas the Medical Assessor did not, that was consequently a medically contestable issue and, in that circumstance, the Appeal Panel considers that the Medical Assessor erred by not adequately addressing what the radiologists had reported was revealed in the scan done on 6 April 2018. The Appeal Panel considered that there were medical records available that would assist with resolving that medically contestable issue, they being the films of the various scans the appellant had done on her thoracic spine. The Appeal Panel determined, as indicated above, that it should call for those records.
The film was viewed by Dr Drew Dixon, being one of the medical experts comprising the Appeal Panel. Dr Dixon reported to the Appeal Panel that the bone scans with SPECT-CT done on 28 January 2016 and 6 April 2018 revealed that the appellant’s T3 thoracic vertebra was a “hemi-vertebra”. That is a congenital failure that results in a vertebral abnormality that causes a lack of formation of one-half of the vertebral body. In the appellant’s case the anomaly of the appellant’s T3 thoracic vertebra was in the posterior half. In the appellant’s case there was no increase uptake on bone scan/SPECT-CT at T3 thoracic vertebra consistent with a vertebral injury such as a crush fracture.
The Appeal Panel accepts Dr Dixon’s finding from his viewing of the film of the scans. Based on that, and bearing in mind too the Medical Assessor’s observation that the appellant did not suffer disabling pain consistent with a fractured vertebra at the time she suffered injury, the Appeal Panel comes to the same conclusion as the Medical Assessor that the appellant does not have a T3 vertebral fracture. Consequently, the appellant does not meet the criteria for DRE Thoracic Category IV.
For these reasons, the Appeal Panel has determined that the MAC issued on
13 September 2022 should be confirmed.
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