Samtani v Woolworths Group Limited
[2022] NSWPICMP 251
•15 June 2022
DETERMINATION OF APPEAL PANEL CITATION: Samtani v Woolworths Group Limited [2022] NSWPICMP 251 APPELLANT: Raj Samtani RESPONDENT: Woolworths Group Limited Appeal Panel: Member Marshal Douglas Dr James Bodel Dr Gregory McGroder DATE OF DECISION: 15 June 2022 CATCHWORDS: wORKERS cOMPENSATION - Appellant contended Medical Assessment Certificate (MAC) contained demonstrable error; because firstly Medical Assessor (MA) had not assessed Whole Person Impairment (WPI) for scarring when that was a matter referred to the MA for assessment; and secondly the MA did not provide adequate reasons to explain making a deduction of 70% under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 for pre-existing degeneration in cervical spine; Appeal Panel agreed with both submissions; MAC revoked.
BACKGROUND TO THE APPLICATION TO APPEAL
1.1. On 9 February 2022 Raj Samtani (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Richard Crane, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 17 January 2022.
2.2. 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.
1.3. 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.
2.4. 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.
3.5. 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
1.6. The appellant commenced employment with Woolworths Group Ltd (the respondent) on 9 March 2006, working as a duty manager.
2.7. On 7 August 2014 the appellant was working at the respondent’s store at Newington stocking shelves. He placed a large box of eggs weighing approximately 20 kg on an overhead shelf causing him to suffer injury to his cervical spine and left shoulder and elbow. Subsequently he underwent numerous investigations of his cervical spine, left shoulder and elbow and also had extensive treatment including an anterior cervical discectomy and fusion of his cervical spine from C5/6 to C6/7 on 19 April 2017 and a second fusion of his cervical spine from C5/6 to C7/T1 done posteriorly on 30 June 2018. The appellant also developed symptoms in his right arm from overusing it to protect his injured left arm.
3.8. On 28 January 2020 the appellant was examined by orthopaedic surgeon Dr Y Kai Lee, at the request of the appellant’s solicitors. On 3 February 2020 Dr Lee reported to the appellant’s solicitors that he had assessed the appellant had 31% whole person impairment (WPI) from the injury the appellant suffered on 7 August 2014, comprising 2% WPI for the right upper extremity, 3% WPI for the left upper extremity, 27% WPI for the cervical spine and 1% WPI for scarring.
4.9. Following his solicitors receiving that report, the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 31% WPI. The respondent’s solicitors then arranged for the appellant to be examined by orthopaedic surgeon Dr Robert Breit on 20 July 2020. Dr Breit provided the respondent’s solicitors with a report on 24 July 2020 wherein he advised that he had assessed the appellant had 21% WPI from his injury, comprising 15% WPI with respect to the cervical spine, 1% WPI for scarring and 6% WPI for the left upper extremity.
5.10. On 11 August 2020 the respondent’s solicitors notified the appellant pursuant to s 78 of the 1998 Act that it disputed the appellant suffered an injury to his right shoulder on 7 August 2014. It should be noted that the appellant was not claiming that he had suffered such an injury, but rather, as a consequence of the injury to his left shoulder and elbow, he had developed symptoms in his right shoulder. The respondent’s solicitors also forwarded an email to the appellant’s solicitors on 11 August 2020 wherein they advised that their client offered to pay the appellant $23,650 for 16% WPI resulting from his injury, which the respondent’s solicitors advised represented “Dr Breit’s assessment less proportion for the right shoulder, which is disputed”.
6.11. The appellant then instituted proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for the respondent to pay him compensation under s 66 of the 1987 Act. The matter was referred to Member Mr John Isaksen, who on 27 October 2021 made the following determination with the consent of the parties:
“1.This matter is remitted to the President for referral to a Medical Assessor as follows:
Date of injury: 7 August 2014
Body Parts:Cervical spine; scarring (TEMSKI); right upper extremity (shoulder) as a consequential condition; left upper extremity (shoulder) as a consequential condition
Method of Assessment: Whole Person Impairment
2. The following documents are to be forwarded to the Medical Assessor:
(a) ARD with attachments;
(b) Reply with attachments.”
1.12. On 10 November 2021 a delegate of the President duly referred the matter to the MA for assessment of the appellant’s WPI. The referral reflected the determination of Member Isaksen. As said, the MA issued the MAC on 17 January 2022. He certified the degree of the appellant’s permanent impairment resulting from his injury was 14% WPI, comprised of 3% WPI for the left upper extremity, 2% WPI for the right upper extremity and 9% WPI for the cervical spine.
PRELIMINARY REVIEW
1.13. 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.
2.14. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because, notwithstanding the Appeal Panel found, for reasons explained below, the MAC did contain a demonstrable error, the Appeal Panel considered the material before it was sufficient for it to determine the appeal and to correct the error.
EVIDENCE
1.15. 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.
MEDICAL ASSESSMENT CERTIFICATE
1.16. The appellant’s appeal relates to two matters, firstly, the MA not assessing any permanent impairment with respect to the appellant’s scarring and, secondly, the MA making a deduction under s 323(1) of the 1998 Act of 7/10th for the proportion of the appellant’s permanent impairment that the MA considered was due to a pre-existing condition in the appellant’s cervical spine.
2.17. The history the MA obtained relevant to those matters included that the appellant did not have any problem with his neck prior to the incident on 7 August 2014 in which he injured his neck. Further the MA noted within the history he obtained the surgeries the appellant had to his cervical spine on 19 April 2017 and 30 June 2018. The MA also provided brief summaries in the MAC of the reports on the several radiological investigations the appellant had done on his cervical spine. These included a report on an x-ray done on 11 February 2019 which had not been provided to the MA with the materials that the Commission forwarded to the MA, and which the appellant obviously brought with him to his appointment with the MA. The MA attached a copy of that report to the MAC.
3.18. The MA recorded in the MAC making the following findings from his examination of the appellant’s cervical spine:
“I noted an 8cm well-healed surgical scar posteriorly over the cervical spine and a 5cm anterior scar more noted on the right side of the neck.
Range of motion of the cervical spine was symmetrically reduced by approximately 50% in all directions of flexion, extension, lateral bending and rotation, with no evidence of dysmetria, muscle spasm or guarding.
Mid arm circumference was 32cm bilaterally and maximal forearm circumference was 30cm bilaterally. Muscle power and tone appeared normal in the upper extremities, including the grip. Biceps reflexes were of very low amplitude but equal bilaterally. I was unable to demonstrate the other upper extremity reflexes.
Sensation was described as “slightly less” globally over the left upper extremity but this did not follow any dermatomal pattern. Mr Samtani mentioned specifically that sensation on the fingers of the right hand was slightly better than the left side, particularly with the ring and little fingers.”
1.19. The MA assessed the appellant’s total impairment relating to his cervical spine to be 29% WPI. The MA explained that the appellant’s cervical spine correlated with the criteria of DRE Category IV because the appellant had undergone cervical fusions at multiple levels. The MA also said “this is a basic 27% WPI plus 2% for interference with activities of daily living. This gives a total of 27% WPI.” The Appeal Panel observes that Table 15-5 of AMA 5, which contains the criteria for rating impairment due to cervical disorders, stipulates a range of 25% to 28% WPI for DRE Cervical Category IV. The MA’s reference to a “basic 27% WPI” was clearly a typographical error and was meant to be a reference to 25% WPI. When 2% WPI is added to that base, the product is 27%WPI.
2.20. The MA also added a further 2% WPI for the two operations the appellant had undergone. The MA consequently assessed the appellant’s total WPI relating to his cervical spine was 29% WPI.
3.21. The MA noted that “there was clear medical imaging evidence of substantial discogenic disease throughout the cervical spine”. The MA said that that was not caused by the work incident and that the work incident resulted in an aggravation of that existing disease. The MA said that “the pre-existing disease was of such magnitude that I believe 70% reduction of the existing impairment is the appropriate figure to apply in this case”. The MA also provided the following additional explanation for that deduction:
“It is clear from contemporaneous medical imaging that at the time of the work incident, there was very significant pre-existing discogenic disease at multiple levels in the cervical spine.
I have also noted the first mention of discomfort in the cervical spine in the general practitioner notes was on 24 November 2014, some 3½ months after the work incident.
I am aware that the claimant indicated that there were no problems with the neck prior to the work incident. The first spinal fusion procedure was about 2½ years after the work incident and the second surgical procedure was almost four years after the work incident.
Despite the lack of any recorded symptoms prior to the work incident, I believe the very significant discogenic disease in the cervical spine has been related to the incident in a substantial degree, for which reason I have made a deduction in the assessed impairment of the cervical spine of 70%, which leaves the cervical spine assessment at 9% WPI, consequential upon the work incident.”
1.22. The MA noted that Dr Breit reported making a deduction of 50% WPI for the cervical spine due to pre-existing disease. The MA also said that Dr Lee “made no deduction for pre-existing disease in the cervical spine”. The Appeal Panel notes that that is not correct as Dr Lee made a 10% deduction.
2.23. The MA, whilst having observed the appellant’s scar and recorded his findings from his examination of the scar, did not make an assessment of the appellant’s impairment from that scarring. He did not explain why he had not done so.
SUBMISSIONS
1.24. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2.25. In summary, the appellant submitted that the MA failed to provide any reasons for not assessing him to have permanent impairment from his scarring. The appellant referred to both Dr Lee and Dr Breit as having assessed him to have 1% WPI from scarring. The appellant submitted that the MA ought to have assessed him to have 1% WPI from scarring and his failure to do so results in the MAC containing a demonstrable error.
3.26. The appellant also submitted that the MA failed to provide adequate reasons for making a deduction of the order of 70% under s 323(1) for the proportion to which discogenic disease in his cervical spine contributes to the impairment he has due to his cervical spine. The appellant submitted that the MA did not give proper consideration to the reports of Dr Lee and Dr Breit when considering what deduction ought to be made under s 323(1). The appellant submitted that the MA did not articulate a clear path of reasoning as to why a deduction of the order of 70% ought to be made.
4.27. In reply, the respondent submitted that the MA examined the appellant’s scarring and that had the MA “felt there was an assessment of WPI attached to the scarring, he would have done so”.
5.28. The respondent also submitted that there was no requirement for the MA to consider the reports of Dr Lee or Dr Breit when determining what deduction was to be made under s 323 for the extent to which the appellant’s pre-existing disease in his cervical spine contributes to the impairment of his cervical spine. The respondent submitted it was open to the MA to make a deduction based on the radiological evidence. The respondent submitted that the extensive underlying degenerative condition in the appellant’s cervical spine “was clinically significant enough to warrant a 70% deduction”. The respondent highlighted that the MA noted that there was substantial and very significant degenerative diseases in the appellant’s cervical spine. The respondent submitted that the MA provided reasons why he made a deduction of 70% under s 323. The respondent submitted that the MA relied upon his clinical assessment and the radiological evidence with respect to the deduction he made. The respondent submitted that the MA’s reasons were both clear and adequate.
FINDINGS AND REASONS
1.29. 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.
2.30. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
3.31. A MA is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a MA to explain his or her opinion by revealing the actual path of reasoning by which he or she arrived at that opinion. The reasons do not necessarily need to be comprehensible to a person with no medical expertise. In a circumstance where an opinion or conclusion of a MA would be self-evident to a medical practitioner and there is no medical contest regarding it, a MA can shortly state his or her reasons. If, however, a conclusion is medically contestable or controversial a more extensive explanation will be required.
4.32. Section 323(1) requires a MA when assessing a worker’s degree of permanent impairment from an injury to make a deduction for any proportion of that impairment that is due to a pre-existing condition or abnormality. A proportion of the impairment will be due to a pre-existing condition or abnormality if that pre-existing condition or abnormality makes a difference to the outcome for the worker in terms of the degree of impairment resulting from the work injury. In other words, when assessing to what extent the degree of a worker’s permanent impairment is due to a pre-existing condition or abnormality it is necessary to determine the extent to which that pre-existing condition or abnormality has made a difference to a worker’s impairment. Section 323(2) requires a MA, in the circumstance where that task would be difficult or costly to do, to assume the deduction to be made under s 323(1) is to be 10% unless that assumption is at odds with the available evidence.
5.33. It is clear in this case from the radiological investigations, which included investigations done within a year of the appellant suffering injury, that the appellant had severe degenerative changes in multiple levels of his lower cervical spine. That disease was largely present immediately preceding the appellant’s injury. Indeed the appellant did not contend otherwise in his submissions.
6.34. It is also apparent, in the Appeal Panel’s view, that the extent to which the degenerative changes in the appellant’s cervical spine contribute to the appellant’s overall impairment of his cervical spine is a medically contestable issue and that is apparent from the MA, Dr Lee and Dr Breit all having different views on that. In the Appeal Panel’s view, there is inherent difficulty in determining with specificity the extent to which the appellant’s pre-existing degenerative disease in his cervical spine makes a difference in terms of the outcome the worker suffered from his injury. In that circumstance, the MA was required to provide more than short reasons as to why making an assumption that the contribution was 10% was at odds with the available evidence and why the contribution was of the order of 70%. The explanation the MA provided was that the appellant had substantial discogenic disease at multiple levels at the time of injury, which was asymptomatic at that time and did not manifest in symptoms until some time after the appellant suffered injury. In the Appeal Panel’s view that explanation is not sufficient- it is too short for what is a medically contestable issue. The Appeal Panel considers therefore that the MAC contains a demonstrable error.
7.35. The Appeal Panel notes that until the time the appellant was injured he had experienced no symptoms from the severe degeneration he had in his cervical spine. Within months of his suffering injury to his shoulder he commenced experiencing symptoms in his cervical spine that ultimately necessitated his having two cervical fusions. The purpose of the surgeries was to alleviate the symptoms manifesting from the degenerate disease in his spine. The manifestation of those symptoms was due to the changes brought about to his cervical spine from the incident on 7 August 2014. In other words, that incident ultimately resulted in his experiencing severe symptoms from the degenerative disease. He would not have needed the surgeries but for these symptoms manifesting, and what occurred on 7 August 2014 brought on the need for surgery or at least resulted in the need arising much earlier than it otherwise would. Given that, the Appeal Panel considers that the assumption to be made under s 323(2) that the deduction under s 323(1) is to be 10% for the proportion to which the appellant’s existing degeneration in his cervical spine contributes to his impairment, is not at odds with the evidence. Notwithstanding the degeneration the appellant had in his cervical spine at the time he suffered the injury was extensive, it was wrong, in the opinion of the Appeal Panel, for the MA to find that the difference that that made to the worker’s impairment from his injury was of the order of 70%, and as said the MA did not provide sufficient or clear reasons for his conclusion.
8.36. In short the Appeal Panel considers that the MAC does contain a demonstrable error with respect to the deduction the MA made under s 323(1) of the 1998 Act. For the reasons explained, the Appeal Panel considers that it would be too difficult to determine precisely what the proportion is and that consequently the deduction to be made under s 323(1) is, in accordance with s 323(2), assumed to be 10%.
9.37. The Appeal Panel also considers the MAC contains a demonstrable error because the MA did not turn his attention to whether there should be an assessment of WPI as a consequence of the scarring the appellant has from his surgery. The Appeal Panel observes that within the report of Dr Briet there is a photo of the appellant’s posterior scar. It is apparent from the evidence that that is the more severe of his scars. That photo depicts a long and noticeable unsightly scar with colour contrast and contour defect. The Appeal Panel considers that there is likely to be some adherence. The Appeal Panel considers that the appellant is likely to be conscious of the scar. Given that, the Appeal Panel considers that the appellant’s scar best fits the criteria for 1% WPI stipulated within Table 14.1 of the Guidelines.
10.38. Finally, the Appeal Panel notes that the MA also only added 2% to the appellant’s WPI relating to his cervical spine for the effects of surgery. The additional amount that ought to have been added, given the appellant had two surgeries was 3%. However, the Appeal Panel is unable to correct that error given that that was not a matter raised by either party in the appeal. In any event, that would not have changed the ultimate outcome in the matter.
11.39. For these reasons, the Appeal Panel has determined that the MAC issued on 17 January 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
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