Opera Services Pty Ltd v Williams
[2024] NSWPICMP 199
•5 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Opera Services Pty Ltd v Williams [2024] NSWPICMP 199 |
| APPELLANT: | Opera Services Pty Ltd |
| RESPONDENT: | Christoper Williams |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Doron Sher |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 5 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Injury to cervical spine, lumbar spine and gastrointestinal tract; employer appealed; error found; re-examination considered necessary; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 July 2023 the employer Opera Services Pty 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, who issued a Medical Assessment Certificate (MAC) on 14 June 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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.
The appellant did not request that the worker be re-examined by a Medical Assessor member of the Appeal Panel. However, the Appeal Panel found error and considered that a re-examination was necessary in this circumstance.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Medical Assessor Drew Dixon of the Appeal Panel conducted an examination of the worker on 13 February 2024 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
• Date of injury: 19/01/16
• Body parts / systems referred: Cervical spine
Lumbar spine
Upper gastrointestinal system
Lower gastrointestinal system• Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Cervical spine | 19/01/16 | Chap 4 P 24 | P 392 T 15-05 | 5 | 0 | 5 | |
| Lumbar spine | P 384 T 15-03 | 12 | 1/10th | 11 | |||
| Upper gastro-intestinal tract | P 79 Chap 16 | P 121 T 6-3 | 3 | 1/10th | 3 | ||
| Lower gastro-intestinal tract | P 128 T 6-4 | 0 | 0 | 0 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 18 | ||||||
The employer appealed. The appeal concerns the assessments for the lumbar spine and the cervical spine. There is no appeal from either party about the deduction of one-tenth applied by the Medical Assessor under s 323 of the 1998 Act to the assessment of 5% whole person impairment (WPI) for the lumbar spine. There is no appeal from either party about the assessment of 3% WPI for the upper gastrointestinal tract. There is no appeal from either party about the assessment of 0% WPI for the lower gastrointestinal tract.
In summary, the appellant submitted on appeal that the Medical Assessor made assessments on the basis of incorrect criteria and made demonstrable errors which included the following:
(a) the findings were not adequate or adequately explained to make the assessments of DRE category II for both the lumbar spine and cervical spine such that the extent of the impairments assessed were made on the basis of incorrect criteria;
(b) in respect of the lumbar spine, the Medical Assessor should have, if correct criteria were applied, assessed DRE category I or an assessment of 0% WPI. In the alternative, the impairment should have been assessed at no higher than DRE category II or 5% WPI, with an addition of 2% WPI for restriction on Activities of Daily Living (ADLS) as assessed by the Medical Assessor and which is not the subject of complaint on appeal and a deduction of one-tenth under section 323 as assessed by the Medical Assessor and which is not the subject of complaint on appeal;
(c) in respect of the cervical spine, if assessed on the basis of correct criteria, the impairment should have been assessed as DRE category I or 0% WPI.
The respondent worker, Mr Christopher Williams (the respondent) made submissions which included that the Medical Assessor did not make an assessment on the basis of incorrect criteria and he did not make a demonstrable error, he was entitled to rely on his own clinical findings on the day of examination, his reasons were adequate and the MAC should be confirmed.
The Medical Assessor took a history broadly consistent with the other evidence that was before him.
The Medical Assessor made findings on the day of examination as follows:
“Mr Williams was of average stature with a height of 1.7m. His weight was 97kg. With these parameters, he currently has a body mass index of over 33. This is well into the technical category of ‘obese’. The upper level of healthy BMI is 25. In order to achieve this, he should be no more than 72kg. He is therefore some 25kg over the upper level of healthy weight. He was not in obvious discomfort, although held himself very stiffly.
Cervical Spine. Pain was located mostly in the lower segments of the cervical spine, tending to radiate into the upper thoracic spine. Movement of the head and neck was very grossly reduced, particularly with elevation and lateral flexion to each side.
Upper Limbs. Due to the fact that there has been a recent right shoulder reconstruction in February 2023, it was not possible to carry out a full range of upper limb movements. Nevertheless, no significant features were identified with the elbows, wrists and hands. Sensation was relatively normal and no neurological features were identified.
Back. Pain was located in the lower half of the lumbar spine, more towards the right side. There was relatively minor associated tenderness. The spinal curvatures were normal. There was no scoliosis or muscle spasm.
He was extremely stiff. On forward flexion he could only reach his mid-thighs with a McRae-Wright movement of 1cm. Extension was minimal. Lateral rotation to each side was reduced to half the range. Lateral flexion to each side was further reduced to one-third of the range.
Lower Limbs. He walked with a symmetrical gait, although this was very stiff. He was able to stand on his heels and toes but could not squat.
The legs were equivalent in length and in circumference at thigh and calf.
No significant features were identified with the hips, knees or ankles.
Sensation to pinprick was reduced over the dorsum of the right foot, which suggests irritation of the L5 nerve root on that side, although power of the extensor hallucis longus (also L5) was equivalent. Elsewhere sensation was throughout the normal distribution and was equivalent. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1).
The straight leg raise assessment was conducted sitting on the edge of the couch. He could fully extend his left knee but lacked the last 20° of extension of the right knee with increasing lower back tension signs.”The Medical Assessor had regard to the special investigations in respect of the cervical spine and lumbar spine as follows:
DATE INVESTIGATION RESULTS 14/03/16 MRI scan cervical spine Minor degenerative changes. 21/03/16 CT scan lumbo-sacral spine Possible bilateral sacroiliitis. 29/07/19 MRI scan lumbo-sacral spine Minor degenerative changes in the lower segments. 26/09/16 Bone scan Minor uptake in the mid to lower thoracic spine.
The Medical Assessor summarised the injury and his diagnosis as follows:
“Mr Williams gives a history of tripping and falling backwards where he hurt his lower back and also banged his head on the ground. It looks as though this caused a jarring phenomenon to his cervical spine.
No significant discogenic features were ever identified and all of his clinical management has remained conservative. This has included the use of anti-inflammatory medication. This seems to be associated with upper gastro-intestinal irritation with the development of reflux oesophagitis. He has also described varying constipation and diarrhoea, although the colonoscopy investigations have not demonstrated any significant feature.
The condition of his neck and lower back appears to have progressed to a chronic pain condition. This is currently being managed by fairly powerful medication.
It has also been identified that he is excessively overweight, with a body mass index of over 33 and also he smokes quite heavily. Both of these features have been described as likely to contribute to his gastro-intestinal condition.”The Appeal Panel notes that the Medical Assessor is cognisant of the fact that no “significant discogenic features were ever identified”.
The Medical Assessor explained his impairment assessments for the cervical spine and lumbar spine as follows:
“Cervical Spine. This is addressed in AMA 5 Page 392, Table 15-05. Mr Williams continues to have dysfunction of the cervical spine, although there is no radiculopathy. This places him into DRE Cervical Category II, which provides a whole person impairment ranging between 5% and 8%, depending on his activities of daily living. For the moment, this will remain at 5%.
Lumbar Spine. This is addressed in AMA 5 Page 384, Table 15-03. Radiculopathy down the right leg has been identified in association with his lumbar spine condition. This therefore places him into DRE III with a whole person impairment ranging between 10% and 13%, depending on his activities of daily living. For this, he would reasonably attract 2%, giving him 12%.”The Appeal Panel was satisfied that error had been made by the Medical Assessor in failing to delineate all the requirements for radiculopathy in paragraph 4.27 of the Guidelines by not carrying out all the tests as required in paragraph 4.27. In the circumstances the Appeal Panel considered that a re-examination was necessary and Dr Dixon a Medical Assessor member of the Appeal Panel was appointed to conduct the re-examination.
The re-examination took place on 13 February 2024 and Medical Assessor Dixon reported to the Appeal Panel as follows:
“PIC PANEL EXAMINATION REPORT
MR CHRISTOPER WILLIAMS (M1-W1186/22)
13 FEBRUARY 2024
DREW DIXON
This 47 year old claimant was working at Opera Services at the Sydney Opera House as a cellarman sustained injuries when he was pulling a manual pallet jack down a narrow corridor when he slipped and fell backwards, jarring his lower back and his head hit the ground and he jarred his neck. He struggled on at work that day as he was the only worker left on the shift.
He subsequently had review by his local doctor and was referred to a neurosurgeon. He had radiological studies done and was referred to a rheumatologist and had chiropractic treatment as well as physiotherapy and he did core stabilising exercises for his lower back.
He had cortisone injections for his neck and back as well as pain management and counselling for PTSD and was prescribed analgesia and anti-inflammatories.
Work History
He found he was unable to continue work so in March 2016 he resigned from his work as a cellarman for Opera Services Pty Ltd. He then took over a more sedentary position for six months for Cronulla RSL where he did mainly clerical work as a stock and store supervisor. He stayed in this position for 6 months.
He moved to Beckom in Southern SNW and lives in a house by himself. He reports difficulty with heavy household cleaning chores as well as prolonged standing to do meal preparation, cooking and washing up and difficulty lifting heavy laundry and groceries. He has difficulty doing the yard work and cleaning the car and with prolonged driving and does not play sport. He has difficulty cutting his toe nails and dressing.
Past health
His past health includes carcinoma (testicular cancer) for which he had a right sided orchiectomy in March 2021. He had a rare genetic condition called Von Hippel-Lindau Syndrome which involves the development of cysts in the kidney.
He reports no previous neck or back conditions.
At the time of the subject injury he was having difficulty with pain and stiffness in both shoulders and has had reconstruction of his right shoulder arthroscopically at Sutherland Hospital last year and is due to have reconstruction of his left shoulder this year. He has also had GORD diagnosed on gastroscopy.Present Treatment
He takes Gabapentin for neuropathic pain, Maxigesic for pain relief and PPIs for reflux and muscle relaxants. He has chiropractic treatment and has been having physiotherapy and sees his local doctor as required and his orthopaedic specialist and spinal specialist as referred.
Current Symptoms
He has pain and stiffness of his neck with pain located to the mid cervical spine with radicular complaint with occipital headaches and pain radiating down both arms intermittently with paraesthesia in both hands intermittently. He reports shoulder brachalgia more marked on the right with trapezial muscle pain and reports his neck pain disturbs his sleep and his neck pain and stiffness impact on his ability to drive, reverse park, change lanes and check the blind spots.
He reports residual pain and stiffness in both shoulders where he has deltoid pain with difficulty elevating the arms.
He reports pain in his lower back with lumbar stiffness and repetitive bending and stooping aggravates his back pain, as does prolonged sitting and standing. He has a sitting and standing tolerance of 20 minutes and a walking tolerance of 20 minutes on level ground and a driving tolerance of up to 45 minutes in his Hi-Lux automatic twin cab Ute. He reports his back pain disturbs his sleep. He reported right sciatica extending down his right leg and left buttock sciatica but no sensory changes in the lower extremities today. He reports a limp on the right and his back condition impacts on his ability to do household chores and yard work and he has difficulty with foot care. He is unable to do his toe nails and has difficulty showering and dressing.
Examination
On examination on 13 February 2024 he was 5’7” tall and weighed 100kg. He presented in a straight forward manner and there were no inconsistencies.
There was stiffness of his cervical spine with flexion decreased by one third as was neck extension and lateral flexion to the left decreased by third and that to the right by one quarter and lateral flexion was decreased by one third bilaterally. There was tenderness of the left C6/7 facet joint and tenderness sin the C4/5/6 level in the mid line of his cervical spine. The vertebra prominens was not tender. There was spasm of his right trapezius muscle and the cervical foraminal compression test was positive. His brachial plexus stretch test equivocal. His right and left supraclavicular brachial plexuses were non tender.
There was no neurological deficit in either upper extremity. His reflexes were present and symmetrical and his thenar power and intrinsic power and grip strength were grade 5 out of 5 in both hands and grip strength was grade 4 out of 5 in both hands. There was some wasting of his left upper extremity (he is right handed) with left upper arm measuring 32cm, 10cm above the elbow crease and 34cm on the right. Both forearms measured 30cm, 10cm below the elbow crease.
There was symmetrical restriction of range of motion of both shoulders with active abduction 150 degrees bilaterally, forward flexion 160 degrees bilaterally, extension 40 degrees bilaterally, adduction 40 degrees bilaterally and external rotation 80 degrees bilaterally and internal rotation 50 degrees bilaterally. He had tenderness of the deltoid muscle. His shoulder girdle power was grade 5 out of 5 on the right and grade 4 plus out of 5 on the left.
There was stiffness of his lumbar segment with flexion decreased by one third with slow and jerky recovery with pain on back extension with erector spinae muscle spasm and back extension which was decreased by one half. Lateral flexion to the left and right decreased by one third. There was tenderness in the mid line at the L5 level of the lumbar spine and the adjacent lumbosacral facet joints. His straight leg raise on the right was 60 degrees and associated with right sciatica and low back pain and that on the left was 60 degrees and associated with buttock sciatica and low back pain. His reflexes were symmetrically present and his power was grade 5 out of 5. There were no objective sensory losses of either lower extremity. His Babinski signs were negative. His sciatic nerve root stretch test was positive on the right. There was some wasting of his left thigh, measuring 48cm, 10cm above the superior pole of the patella compared with 50cm on the right and 1cm of wasting of his left leg below the knee at 39cm and that on the right 40cm.
He walked with a limp on the right due to sciatica and had a moderately severe limp on toe walking due to back pain and heel walking was mildly restricted due to back pain and his squat test was associated with marked low back pain.
Stress of his sacroiliac joints was positive.
Investigations
MRI of the cervical spine on 14 March 2016 showed minor degenerative changes and an MRI of his lumbosacral spine on 29 July 2019 showed minor degenerative changes in the lower lumbar segments.
Bone scan on 26 September 2016 showed minor uptake in the mid to lower thoracic spine.
Summary
In summary this claimant was trying to manoeuvre a heavy manual pallet jack down a narrow corridor where the floor was slippery and he fell backwards, coming down hard on his back, hitting his head on the floor and he sustained a neck strain injury. He has aggravated spondylosis in his neck and lower back and his injuries impact on his ADLs as noted above including foot care.
Impairment
His impairment assessment for his cervical spine with post traumatic stiffness with dysmetria on neck rotation and trapezial muscle spasm on the right and radicular complaint with occipital headaches and intermittent pain radiating down his arms, giving DRE II, from Table 15-5, Page 392, AMA V, 5% WPI.That for his lumbar spine where he has a known back strain injury with post traumatic stiffness with radicular complaint without radiculopathy with facet arthralgia and aggravation of lumbar spondylosis which is ongoing is from Table 15-3, Page 384, AMA V, DRE Category II, with impaction on ADLs, giving 7% WPI less one-tenth for pre-existing spondylosis, giving 6% WPI.
This gives a total of 11% WPI plus 3% WPI for GIT dysfunction, giving 14% WPI.
These findings are consistent with the findings of Dr Paul Carney, neurosurgeon, in his IME report at Medicines Legale on 29 May 2019.”
The Appeal Panel adopts the findings and the report of Medical Assessor Dixon.
There was no appeal against the assessment of the upper gastrointestinal tract at 3% WPI. Using the combined values table, AMA5 pages 604-606, 6% for the lumbar spine plus 5% for the cervical spine plus 3% for the gastrointestinal tract equals 14% WPI.
This means that a new MAC will be issued as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Cervical spine | 19/01/16 | Chap 4 P 24 | P 392 T 15-05 | 5 | 0 | 5 | |
| Lumbar spine | P 384 T 15-03 | 7 | 1/10th | 6 | |||
| Upper gastro-intestinal tract | P 79 Chap 16 | P 121 T 6-3 | 3 | 1/10th | 3 | ||
| Lower gastro-intestinal tract | P 128 T 6-4 | 0 | 0 | 0 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 14 | ||||||
For these reasons, the Appeal Panel has determined that the MAC issued on
14 June 2023 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: | W1186/22 |
Applicant: | Christopher Williams |
Respondent: | Opera Services 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 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 SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Cervical spine | 19/01/16 | Chap 4 P 24 | P 392 T 15-05 | 5 | 0 | 5 | |
| Lumbar spine | P 384 T 15-03 | 7 | 1/10th | 6 | |||
| Upper gastro-intestinal tract | P 79 Chap 16 | P 121 T 6-3 | 3 | 1/10th | 3 | ||
| Lower gastro-intestinal tract | P 128 T 6-4 | 0 | 0 | 0 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 14 | ||||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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