Schueppenhauer v Forgacs Engineering Pty Ltd
[2024] NSWPICMP 541
•6 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Schueppenhauer v Forgacs Engineering Pty Ltd [2024] NSWPICMP 541 |
| APPELLANT: | Frank Schueppenhauer |
| RESPONDENT: | Forgacs Engineering Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 6 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) erred in failing to make an assessment in accordance with the terms of the referral; appellant was to undergo further treatment; MA assessed percentage of whole person impairment when he was asked only to determine if maximum medical improvement had been reached; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 May 2024 Frank Schueppenhauer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 April 2024.
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, 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 (the 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 edition 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
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.
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 Medical Assessor erred in failing to make an assessment in accordance with the terms of the referral.
In reply, the respondent neither consents to nor opposes the appeal.
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 Medical Assessor for assessment as follows:
“The questions to be addressed by the Medical Assessor are;
·Has the Applicant reached maximal medical improvement, that is, is the level of whole person impairment ascertainable.
·If yes, what is the level of whole person impairment.”
The Medical Assessor obtained the following history:
“On the date of injury, Mr Schuppenhauer had been repetitively bending, grinding for weeks on end. He was shuffling along sheet metal whilst flexed and developed acute pain in his back. He says he “went down and couldn’t get back up”. After fifteen minutes he was able to get up and had pain in his back. He presented to a physiotherapist and tried to continue at work. He reported his injury and was placed on light duties but even these were still relatively heavy.
Mr Schuppenhauer told me he had to stop work around 2005, unable to manage his back pain any longer.
A clinical letter from 17 February 2005 by Dr Ferch, Neurosurgeon, notes Mr Schueppenhauer reporting back pain with no symptoms radiating into his legs. He notes an MRI demonstrating degenerative disc disease at L3/4 and L4/5 but notes specifically no nerve root compression evident on the scan.
On 5 March 2014 he was reviewed by another surgeon, Dr Ghabrial who notes pain in his back and pain in his right leg. Dr Ghabrial curiously surmises “I believe the problem is related to his right sacroiliac joint, chronic post traumatic strain, associated with disc protrusions at the L2/3, L3/4 and L4/5 segments”. In 2019, Dr Ghabrial goes on to undertake L3/4, L4/5 discectomies. Curiously, Dr Ghabrial does this bilaterally, even though he had noted Mr Schuppenhauer having pain radiating into the right leg. Mr Schuppenhauer says this relieved some of his acute movement related pain but did not really alter his overall symptoms.
Subsequently Mr Schuppenhauer was referred to yet another surgeon, Dr Steele. In his clinical letter dated 11 May 2022, Dr Steele notes “It is difficult to be certain as to the precise pain generator. There is no high grade nerve compression or instability that would mandate surgery.” Dr Steele revealed on 4 November 2022, “His bone scan demonstrates right sided uptake at the L3/4 level and an injection into the L4/5 interspace gave Mr Schuppenhauer some relief of his symptoms (apparently presumed to be on the basis of spinous processes rubbing on each other, known as Baastrup’s phenomenon)”. Dr Steele notes in his letter, “The surgical recommendation for this would be fusion at the L4/5 level”. This also is a curious consideration.”
After setting out details of the appellant’s present treatment, symptoms and other matters, the Medical Assessor then noted findings on examination as follows:
“There was subjective sensory alteration in the L5 distribution bilaterally. There was a well healed 8cm midline surgical scar, consistent with decompressive surgery.”
The Medical Assessor summarised the injury as:
“Mr Schuppenhauer had an injury at work and has had chronic back pain since. Imaging demonstrated degenerative disc disease at the time. He subsequently went on to have a decompression, which predictably was not helpful for his symptoms.”
The Medical Assessor then proceeded to assess WPI, contrary to the terms of the referral.
The appellant’s submissions
By way of background, the appellant notes:
(a) The applicant has an accepted lumbar spine injury which occurred on 8 July 2004.
(b) After a period of conservative management, the respondent accepted liability for the applicant to undergo spinal surgery by Associate Professor YAE Ghabrial on 3 September 2019, being L3/4 and L4/5 discectomies.
(c) His condition continued to deteriorate, and he was referred with the approval of the respondent to Associate Professor Timothy Steel, after investigations with the approval of the respondent, has recommended an L4/5 fusion [ARD 54].
(d) While respondent’s insurer accepted liability for the applicant’s lumbar spine injury, it asserted the applicant had to have the issue of “maximum medical improvement” (“MMI”) determined by a Medical Assessor in the Commission [ARD 14], to enliven s 39 (2).
(e) The applicant then applied to the Commission for this issue to be determined and was referred by the President to Dr Robert Kuru.
The appellant has reproduced the mandated guidelines for the assessment procedures and the Commission’s Medical Assessor Code of Conduct and submits that the Medical Assessor failed to adhere to these.
He adds:
(a) Even if the registrar were to assume that he had, in fact, determined whether he had reached MMI (which he clearly could not), the only evidence from the worker appears at page 1 of the ARD, dated 29 March 2023.
(b) He states at paragraph 8 of the statement: “I wish to undergo medical treatment and have the L4/5 fusion proposed by Prof Timothy Steele.”
(c) There is no finding of fact recorded in the MAC on which Dr Kuru could form an opinion to reject this evidence.
(d) An examination of the MAC shows paucity of recorded facts, reasoning and an absence of a conclusion that can be properly regarded as fulfilling the statutory function that Dr Kuru was delegated under the Act.
(e) The reasoning of Dr Kuru demonstrates that he assumed the role of offering a treating surgical opinion, including patent disagreement within various surgical procedures for which liability under the scheme was accepted.
(f) For Dr Kuru to form an opinion, rejecting this fact, it required as a minimum, a process of reasoning that can be discerned on the face of the record, that was within his delegated authority. The face of the record demonstrates he has acted “ultra vires”.
(g) It is apparent that Dr Kuru made no enquiry of the applicant to challenge his statement and demonstrably failed to afford him the opportunity to defend it. No treating doctor, medico legal opinion, or the respondent raised a dispute about whether the spinal fusion surgery proposed was reasonably necessary.
The Panel is in full agreement with the appellant’s submissions.
Put simply, as we said earlier, the Medical Assessor was asked to determine whether MMI had been reached.
He failed to do this.
Under the heading “EVALUATION OF PERMANENT IMPAIRMENT”, the Medical Assessor was asked a number of questions. Relevant to the issue in dispute, he said:
“Have all body parts/systems stabilised/reached maximum medical improvement? Yes.
If not, please list those injuries not yet stable/at maximum medical improvement: Not applicable.
If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? Not applicable.”Given the proposed further treatment at the hands of Dr Steele, not opposed by the respondent, it is quite clear that MMI has not been reached.
For these reasons, we find that MMI has not been reached such that the MAC must be revoked.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | M1-W9445/23 |
Applicant: | Frank Schueppenhauer |
Respondent: | Forgacs Engineering Pty Limited |
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 Robert Kuru. The Panel determines that the applicant has not reached maximum medical improvement.
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