Olrich v Ramsay Health Care Australia Pty Limited
[2023] NSWPICMP 170
•1 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Olrich v Ramsay Health Care Australia Pty Limited [2023] NSWPICMP 170 |
| APPELLANT: | Katarina Olrich |
| RESPONDENT: | Ramsay Health Care Australia Pty Ltd |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 1 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appellant submitted that the Medical Assessor erred in failing to undertake an assessment of and/or report on the residual symptoms and radiculopathy suffered by the appellant, failed to provide reasons for why he did not assess a further 3% whole person impairment (WPI) for spinal surgery with residual symptoms and radiculopathy and erred in his classification of scarring; Held – no error regarding the lumbar spine; no evidence of radiculopathy on examination; error with scarring assessment; photographs admitted as late evidence demonstrated 2% as per TEMSKI; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 December 2022 Katarina Olrich (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 15 November 2022.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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).
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 worker to undergo a further medical examination because although one was requested, we do not believe that it is necessary for reasons which will become apparent in the body of our decision.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) colour photographs of her scar.
The appellant submits that the evidence is relevant to the MA’s assessment in respect of scarring (TEMSKI).
The appellant makes no substantive submissions as regards the requirement that the evidence was not available and could not reasonably have been obtained however, does say that the photographs were taken on 10 December 2022 which clearly post-dates the MAC.
The respondent objects to this evidence principally because of the appellant’s failure to comply with s 328(3).
The Appeal Panel determines that the proposed evidence should be received on the appeal because it is relevant to one of the issues in dispute and to re-examine the appellant (who resides in Tamworth) would be contrary to the principles of s 3 of the Personal InjuryCommission Act 2020 which sets out the objects of the Act and includes:
“c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible…”
For these reasons, we therefore determine that a re-examination as regards the scarring aspect of the appeal is not necessary.
We will discuss the re-examination request as regards the issue of residual symptoms and radiculopathy later.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in failing to undertake an assessment of and/or report on the residual symptoms and radiculopathy suffered by the appellant, failed to provide reasons for why he did not assess a further 3% WPI for spinal surgery with residual symptoms and radiculopathy and erred in his classification of scarring.
In reply, the respondent submits that no errors were made.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the lumbar spine and scarring resulting from an injury on 1 February 2019.
The MA obtained the following history:
“Ms Olrich related that on 01/02/19, she had been sitting at a desk on a chair with wheels. The wheels had rolled away as she tried to sit down and she ended up sitting down very hard onto the floor. This caused a lot of localised pain in her lower back.
Various forms of management were tried which included cortisone injections to the sacro-iliac joints, although these did not give a great deal of help.
Later, in June 2019, there was a discogram following a request by Specialist Orthopaedic and Spinal Surgeon, Dr Neil Cleaver. This returned a positive result and it was then recommended that she should have a fusion at the L5/S1 articulation and a disc replacement at L4/5. This was agreed and went ahead on 14/11/19. This gave her improvement, although she still occasionally experiences dysfunction in her lower back.”
Present treatment was noted as follows: “She takes analgesic medication, some of which has an opiate base. She is also pursuing a range of exercise physiology, which is relatively new”.
Present symptoms were described as follows:
“She continues to have pain in her lower back which largely depends on what she is doing. There is often radiation towards the left buttock and hip area and occasionally down the left leg. Static postural positions make it very much worse.”
The MA then set out details of Ms Olrich’s previous history of lower back dysfunction which is not the subject of appeal such that we do not intend to repeat his comments.
Findings on physical examination were reported as follows:
“Ms Olrich was very tall, with a height of 1.77m. At this assessment, Ms Olrich did not appear to be in severe discomfort.
Back. The focus of pain was to the right of the mid-line, more towards the right sacro-iliac joint. There was mild associated tenderness at that level. The spinal curvatures were normal. There was no scoliosis or muscle spasm.
On forward flexion she could impressively reach her lower shins with an equally impressive McRae-Wright movement of 7cm. This is well beyond the lower limit of normal, which is 5cm. Lateral flexion and rotation to each side and extension were all easily throughout the normal range.
Lower Limbs. Ms Olrich walked normally. She could also walk on heel and toe. Squatting was not attempted. The legs were equivalent in length and in circumference at thigh and calf. I was unable to demonstrate any significant features with the hips, knees or ankles. Sensation to pinprick was throughout the normal distribution and was equivalent. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent. The straight leg raise test was conducted in the sitting position on the edge of the couch. She could fully extend each knee without difficulty.
Abdomen. There was a mid-line lower abdominal surgical scar from the umbilicus down to the pubis. This was not particularly tender, although Ms Olrich described concern with the scar being a little wide and also significantly deepened. She is very aware of the scar and very concerned and embarrassed at its appearance and particularly its shape, with obvious contour defect.”
The MA assessed 23% WPI in respect of the lumbar spine and 1% WPI for scarring. He deducted one-quarter in respect of the lumbar spine leaving 17% WPI for the lumbar spine. The combined assessments totalled 18% WPI.
He explained his reasons for assessment as follows:
“Lumbar Spine. This is initially addressed in AMA 5 Page 384, Table 15-03. There has been a spinal fusion which immediately places her into DRE Lumbar Category IV. This provides a whole person impairment ranging between 20% and 23%, depending on the activities of daily living. For this she would attract a further 2%, giving 22%.
From the SIRA Guidelines Page 29, Table 4.2, there is a further 1% for second level surgery. This therefore gives her 23% WPI.
Scarring. This is addressed in the SIRA Guidelines Page 74, Table 14.1. Ms Olrich is very aware of the abdominal scarring and expresses a lot of concern about it. The scar is indented, there is contour distortion. The scar would normally be hidden by clothing unless she was wearing abbreviated swimwear. There is no specific effect from the scar on her activities of daily living. Other than the use of moisturisers, no further treatment is needed. With these features, she would reasonably attract a further 1% WPI.”
The MA then commented upon the other medical opinions and said:
“My assessment is very similar to the baseline assessment of Specialist Orthopaedic Surgeon, Dr Richard Powell in his report of 07/04/22. Dr Powell also has a fairly substantial deduction for the pre-existing conditions, with which I would agree. This will be further addressed.
Specialist Spinal Surgeon, Dr Neil Cleaver in his report of 07/10/21 has a similar whole person impairment with 1% for scarring. In general, I am in agreement with this, although Dr Cleaver does not apply any deduction.”
Dealing firstly with the lumbar spine, the appellant makes the following submissions:
(a) a further 3% WPI should be added under the Table 4.2 Modifiers for residual symptoms and radiculopathy;
(b) in the MAC, Dr Anderson noted: “She continues to have pain in her lower back which largely depends on what she is doing. There is often radiation towards the left buttock and hip area and occasionally down the leg. Static postural positions make it very much worse”:
(c) these symptoms are consistent with the medical evidence;
(d) the CT scan report finds a verified pathology consistent with the clinical signs suffered by the appellant;
(e) despite there being evidence of ongoing symptoms and radiculopathy, verified by imaging, Dr Anderson did not provide any reasons for why he did not make an assessment of a further 3% WPI under Table 4.2 for residual symptoms and radiculopathy, and
(f) the appellant meets the requirements of a further 3% WPI for the residual symptoms and radiculopathy.
The appellant set out in some detail the evidence she relied upon in support of her submissions.
Clause 4.28 of the Guidelines provides that:
“Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
Clause 4.27 of the Guidelines provides as follows:
“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):
· Loss or asymmetry of reflexes
· Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
· Reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
· Positive nerve root tension…
· Muscle wasting-atrophy…
· Findings on an imaging study consistent with the clinical signs…”
To begin with, the appellant relies extensively on medical evidence that is somewhat dated, namely the correspondence between Dr Neil Cleaver and Peel Health Care regarding her post-surgical symptoms between January and November 2020.
It must be remembered that the task of an MA, set out in cl 1.6 of the Guidelines, is to make “a clinical assessment of the claimant as they present on the day of assessment…”
It is true that, as the appellant submits, “a CT scan dated 16 November 2020 reported that the appellant suffers with a: Moderate narrowing of the left L5/S1 exit foramen”.
However, contrary to the appellant’s submissions, this does not amount to “verified pathology consistent with the clinical signs suffered by the appellant”. It is only one minor criteria.
In addition, as the respondent points out: “the CT scan is inconsistent with Dr Cleaver’s comment that “I can’t see any frank compression on her CT scan today”.
The MA made it clear that a further 3% WPI should not be added under the Table 4.2 Modifiers for residual symptoms and radiculopathy for the following reasons:
(a) he noted: “Reflexes were present and equivalent at the knees (L4) and at the ankles (S1)”;
(b) power of the extensor longus (L5) was equivalent;
(c) sensation to pinprick was throughout the normal distribution and was equivalent;
(d) he said: “The straight leg raise test was conducted in the sitting position on the edge of the couch. She could fully extend each knee without difficulty”, and
(e) he also said: “The legs were equivalent in length and in circumference at thigh and calf”.
As the respondent correctly points out, the MA’s findings were consistent with there being no loss or asymmetry of reflexes, no muscle weakness that is anatomically localised to an appropriate nerve root distribution, no reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution, no positive nerve root tension, and no muscle wasting (atrophy).
These findings confirm that the appellant did not demonstrate any of the three major criteria on the MA’s examination, at least one of which is required for radiculopathy to be assessed under Table 4.2. The appellant also did not demonstrate the minor criteria on the MA’s findings.
In summary, based on his findings on the day of the assessment, there was no evidence to conclude that there was post-operative radiculopathy present in accordance with the requirements of cl 4.27 of the Guidelines.
In these circumstances, having determined that there was no error by the MA in his assessment of the lumbar spine, it is therefore not necessary to conduct a re-examination of the appellant.
Turning now to the issue of scarring, the appellant makes the following submissions:
(a) the scarring meets the “best-fit” criteria for a 2% WPI classification under the TEMSKI;
(b) Dr Anderson noted there was a midline lower abdominal surgical scar from the umbilicus down to the pubis. This was not particularly tender although Ms Olrich described concern with the scar being a little wide and also significantly deepened. Dr Anderson noted that Ms Olrich is very aware of the scar and very concerned and embarrassed at its appearance and particularly its shape with obvious contour defect, and
(c) from the photographs provided by the appellant, we can see that the scar would not normally be hidden by usual clothing. It is certainly obvious when wearing abbreviated swimwear, but it is also obvious when the appellant wears active wear for the gym and it also visible when she wears usual clothing, especially when she wears a shorter shirt or when her arms are raised.
We agree with the thrust of the appellant’s submissions for reasons that follow.
To begin with, the appellant underwent an anterior fusion, meaning that the scar is on the front of her body.
It is curved, showing a loss of contour. There is some probable adherence around the umbilicus and pelvic area.
We note that the MA obtained a history that the appellant had started “pursuing a range of exercise physiology” and when wearing gym outfits such as shown in the photographs, particularly in a cropped top or with her arms elevated, the scar is clearly visible.
In our view, the appellant’s history to the MA of her reaction to the scar is consistent with a 2% WPI as “best fit”.
She is conscious of the scar, there is contrast with the surrounding skin, it is easily and visibly located on the front of her body, the contour defect is visible and given its position, is visible with at least some usual clothing.
In a female, this is particularly significant.
We acknowledge that both Dr Powell and Dr Cleaver gave 1% for the scarring, but we are not bound by the opinions of other medical specialists.
For these reasons, the Appeal Panel has determined that the MAC issued on
15 November 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 after 1 January 2002
Matter number: | W4005/22 |
Applicant: | Katarina Olrich |
Respondent: | Ramsay Health Care Australia 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 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)
| 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. Lumbar spine | 01/02/19 | Chap 4 P 24 | P 384 T 15-03 | 23% | ¼ | 17% |
| 2. Scarring | 01/02/19 | P74; T 14.1 | 2% | 0 | 2% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0