Schulz v Staffpower Pty Ltd
[2021] NSWPICMP 223
•30 November 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Schulz v Staffpower Pty Ltd [2021] NSWPICMP 223 |
| APPELLANT: | Kristin Sarah Schulz |
| RESPONDENT: | Staffpower Pty Ltd |
| APPEAL PANEL: | Member Jane Peacock Dr Julian Parmegiani Dr Margaret Gibson |
| DATE OF DECISION: | 30 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Q Fever; Medical Assessor (MA) assessed the impairment by reference to an analogous condition of Anaemia at Class 2; appellant submitted Class 3 should have been assessed; the MA is entitled to rely on his clinical findings on the day of examination and his clinical assessment of the available medical evidence that was before him; the MA’s assessment of Class 2 was properly explained and accorded with the criteria in that class; the MA had also made a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Held - the Appeal Panel considered that there has been an error in the making of this deduction; the MA was referred a physical injury to assess; it is incorrect and in error to make a deduction in respect of a psychological condition from an assessment of the impairment that results from a physical injury; moreover, even if it was permissible, which it is not, there was no available evidence that supported the view that there was any impairment in respect of any pre-existing psychological condition that has contributed to the level of permanent impairment assessed; Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 September 2021 Ms Kristin Sarah Schulz (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr Christopher Oates, a MA, who issued a Medical Assessment Certificate (MAC) on 11 August 2021.
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,
· 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.
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 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).
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.
The appellant requested she be re-examined by a MA who is a member of the Appeal Panel. 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 the Appeal Panel found error, there was sufficient evidence before the Appeal Panel for the matter to be determined.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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 MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 20 August 2018
· Body parts/systems referred: Haematopoietic system (anaemia/Q fever)
· Method of assessment: Whole person impairment”
The MA issued a MAC certifying as follows:
Body Part or system Date of Injury Chapter,
page and paragraph number in NSW workers compensation guidelinesChapter, 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) 1. Haematopoietic system (anaemia/ Q fever) 20 Aug 2018 Chapter 12, Table 12.1, page 61 Not applicable 30 1/10th 27 Total % WPI (the Combined Table values of all sub-totals) 27
The worker appealed.
The Guides do not provide the criteria for assessment of the appellant’s condition of Q Fever. In these circumstances the Guides provide at 1.23 as follows:
“Conditions that are not covered in the Guidelines – equivalent or analogous conditions
1.1 AMA5 (p 11) states: ‘Given the range, evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments… In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.’ The assessor must stay within the body part/region when using analogy.
‘The assessor’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.’
The appellant submitted that the MA “has correctly assessed the appellant’s Q fever by reference to an analogous condition, using the anaemia table in the hematopoietic system of Table 12.1 in Chapter 12 of the Guidelines, replacing AMA5, Table 9-2.”
In summary, the appellant submitted that the MA erred as follows:
· “used incorrect criteria to assess the appellant as the MA incorrectly refers to the requirement of the appellant to have had a haemoglobin level severe enough to require a blood transfusion to be assessed as a Class 3 impairment”. The transfusion requirement does not apply because Q fever does not require a transfusion.
· Whilst it is conceded that anaemia is a good analogy, the MA has incorrectly assessed the appellant’s injury as Class 2 despite diagnosing the appellant with acute illness associated with acute liver failure, thrombocytopenia and anaemia (low haemoglobin)”.
· The MA should have taken a best fit approach as opposed to an exact fit appeal and applied a Class 3 impairment.
In summary, the respondent submitted that the MA did not err or make an assessment on the basis of incorrect criteria.
The role of the MA is to make an independent assessment on the day of assessment.
The MA has taken a history broadly consistent with the other evidence that was before him. He has conducted a physical examination and reviewed the radiology.
The MA summarised the injury and diagnosis as follows:
“summary of injuries and diagnoses:
The diagnosis is Q fever (a bacterial infection with Coxiella burnetii) which is a zoonotic disease, that is, a disease transmitted from animals to humans. The onset of the acute illness was associated with acute liver failure, thrombocytopaenia and anaemia (low haemoglobin).
The biochemical and haematological abnormalities settled over time, however the acute illness, whilst initially thought to have evolved to chronic Q fever, has subsequent been diagnosed as post-Q fever chronic fatigue, characterised by myalgias, headaches, lassitude and sleep disturbance.
· consistency of presentation
The applicant worker presented in a consistent manner.”
He explained his assessment of permanent impairment as follows:
“The NSW Workers Compensation Guidelines do not cater to a direct assessment of infectious disease such as Q fever. The accepted practice for assessment of such conditions is by reference to an analogous condition, using the anaemia table in the haematopoietic system, because the fatigue caused by anaemia is comparable to the fatigue see in both the acute Q fever disease and post-Q fever fatigue syndrome, which latter condition is affecting this applicant worker.
Table 12.1 in Chapter 12 of the NSW Workers Compensation Guidelines 4th Edition replaces AMA5, Table 9-2 (page 193). By reference to Table 12.1, I assess the worker at the upper end of Class 2, based on the fact she has continuing symptoms of fatigue and poor exercise tolerance, sleep disturbance and had a reduction in haemoglobin to the 80-100gm/L band with the onset of the acute illness, with subsequent resolution. The haemoglobin level was addressed by prescription of iron tablets and there was no requirement for transfusion. I assess 30% whole person impairment.
In making that assessment I have taken account of the following matters:-
The investigation findings and the history taken from the worker, noting that her condition has plateaued over the last several months.”
The MA then made a one tenth deduction under s 323 for a pre-existing psychological condition. He explained his reasoning as follows:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)There was a history of pre-existing anxiety and depression which, at the time immediately before the onset of Q fever, was partly a reaction to a break-up of a physically abusive relationship. There was no relevant previous physical injury, pre-existing condition or abnormality.
b.The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)Depression can produce sleep disturbance and fatigue amongst its effects. The pre-existing symptomatic anxiety and depression were worsened after the onset of Q-fever, as acknowledged by the treating health professionals, independent medical examiners and the applicant worker. A deduction is appropriate.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.”
The MA made brief comment on the other medical opinions that were before him as follows:
“A report from Associate Professor Richard Haber dated 24 November 2020, conducted by Zoom, noted current symptoms of muscle soreness with the least activity, constant tiredness and headaches, not sleeping well, vomiting once a week on average, forgetting things and getting disorganised with goods days and bad days affecting her ADLs, walking at least three times a week for 30-60 minutes, and exercises prescribed by an exercise physiologist.
She was having regular blood tests and was told her blood tests had improved but were still not back to normal, and that she had had anxiety all her life, but this had got much worse since the illness, and she tends to panic. He assessed permanent impairment using Table 9.2 on page 193 of the AMA5 in Class 3 (range 31-70% WPI), choosing 60% WPI.
I disagree with this assessment, as based on my assessment today there has been a substantial degree of improvement based on symptoms reported, compared with what was reported ten months ago. A Class 3 impairment requires moderate to marked symptoms and a haemoglobin of 50-80gm/L, severe enough to require blood transfusion. This was not the case with Ms Schulz, and he did not take account of the pre-existing depression which can manifest as sleep disorder and fatigue or lassitude in assessing permanent impairment, hence I disagree with the assessment of Professor Haber.
A report from Dr Potter, independent examiner, dated 19 March 2021 noted that her progress over time is ‘much better’, but she has the frustration of ‘every day is different.’ She is still left with a perception of anxiety, tiredness and aches, particularly the arms and legs more than the spine. Examination findings were normal.
He noted a past history of mood disorder and anxiety, then acute Q fever, and now ongoing symptoms which could be an exacerbation of Q fever response, but also a continuation of her pre-infection mood changes in somatic terms.
Dr Potter used AMA5 Guides, Table 9.2, page 193, applying Class 2 mid-range 15% permanent impairment, but that there was a treated pre-existing mood disorder. He applied a 50% deduction because of the pre-existing mood disorder, rounding the final impairment from 15% down to 8% whole person impairment.
I agree with Dr Potter’s assessment of Class 2, but in my opinion the worker’s symptoms are at the upper end of this class, rather than the lower to mid-range of the class. I disagree with the extent of the deduction made because until the onset of Q-fever, the applicant worker was functioning well in her ADL’s and able to work in a physical occupation unaffected by sleep disturbance and/or fatigue, despite the background of the anxiety and depression conditions.
I note that both independent Assessors referred to AMA5, Table 9.2 but this has been superseded by the NSW Workers Compensation Guidelines, Table 12.1 in Chapter 12.”
Chapter 12 of the Guides provides as follows:
“12. Haematopoietic system
AMA5 Chapter 9 (p 191) applies to the assessment of permanent impairment of the haematopoietic system, subject to the modifications set out below. Before undertaking an impairment assessment, users of the Guidelines must be familiar with:
• the Introduction in the Guidelines
• chapters 1 and 2 of AMA5
• the appropriate chapter(s) of the Guidelines for the body system they are assessing
• the appropriate chapter(s) of AMA5 for the body system they are assessing. The Guidelines take precedence over AMA5.
Introduction
12.1 AMA5 Chapter 9 (pp 191–210) provides guidelines on the method of assessing permanent impairment of the haematopoietic system. Overall, that chapter should be followed when conducting the assessment, with variations indicated below.
12.2 Impairment of end organ function due to haematopoietic disorder should be assessed separately, using the relevant chapter of the Guidelines. The percentage whole person impairment (WPI) due to end organ impairment should be combined with any percentage WPI due to haematopoietic disorder, using the combined values table in AMA5 (pp 604–06).
Anaemia
12.1 Table 12.1 (below) replaces AMA5 Table 9-2 (p 193).
Table 12.1: Classes of anaemia and percentage whole person impairment
Class 1: 0–10% WPI Class 2: 11–30% WPI Class 3: 31–70% WPI Class 4: 71–100% WPI No symptoms and
haemoglobin 100-120g/L and
no transfusion required
Minimal symptoms and
haemoglobin 80-100g/L and
no transfusion required
Moderate to marked symptoms
and
haemoglobin 50-80g/L before transfusion
and
transfusion of 2 to 3 units
required, every 4 to 6 weeks
Moderate to marked symptoms
and
haemoglobin 50-80g/L before transfusion
and
transfusion of 2 to 3 units required, every 2 weeks
12.1 The assessor should exercise clinical judgement in determining WPI, using the criteria in Table 12.1. For example, if comorbidities exist which preclude transfusion, the assessor may assign class 3 or class 4, on the understanding that transfusion would under other circumstances be indicated. Similarly, there may be some claimants with class 2 impairment who, because of comorbidity, may undergo transfusion.
12.2 Pre-transfusion haemoglobin levels in Table 12.1 are to be used as indications only. It is acknowledged that for some claimants, it would not be medically advisable to permit the claimant’s haemoglobin levels to be as low as indicated in the criteria of Table 12.1.
12.3 The assessor should indicate a percentage WPI, as well as the class.”
It is not disputed by the appellant that the MA correctly chose Table 12.1. Having done so, he must perform an assessment in accordance with the criteria for the Classes prescribed by Table 12.1. In this case, a transfusion could have been indicated for the condition but was not in the appellant’s case as the haemoglobin level was addressed by iron tablets. The MA specifically explained that the appellant as at the day of examination:
“had a reduction in haemoglobin to the 80-100gm/L band with the onset of the acute illness, with subsequent resolution. The haemoglobin level was addressed by prescription of iron tablets and there was no requirement for transfusion.”
The MA specifically explained by reference to the correct criteria in Table 12.1 why his opinion differed from that of Professor Haber, the independent medical expert qualified on behalf of the appellant, as follows:
“A Class 3 impairment requires moderate to marked symptoms and a haemoglobin of 50-80gm/L, severe enough to require blood transfusion.”
The MA has made a clinical judgment using his clinical expertise and having due regard to the history, his clinical examination and the other available evidence. He has given a clear and reasoned explanation for where his opinion different from the other expert opinions before him. The MA is entitled to rely on his clinical findings on the day of examination and his clinical assessment of the available medical evidence that was before him. The MA’s assessment of Class 2 was properly explained and accorded with the criteria in that class. The Appeal Panel can discern no error in the assessment of Class 2 and within that class the assessment of the upper limit of that class at 30%. The Appeal Panel will confirm this aspect of the assessment.
The appellant complained on appeal about the deduction of one-tenth under s 323. The respondent submitted that this should be confirmed.
The Appeal Panel considers that there has been an error in the making of this deduction. The MA was referred a physical injury to assess. It is incorrect and in error to make a deduction in respect of a psychological condition from an assessment of the impairment that results from a physical injury. Moreover, even if it was permissible, which it is not, there is no available evidence in this case that supports the view that there was any impairment in respect of any pre-existing psychological condition that has contributed to the level of permanent impairment assessed. The one-tenth deduction was in error and the Appeal Panel will revoke this aspect of the assessment.
This leaves a 30% WPI as a result of injury on 20 August 2018.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 August 2021 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
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 Dr Christopher Oates 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 NSW workers compensation 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) | ||
| 1. Haematopoietic system (anaemia/ Q fever) | 20 Aug 2018 | Chapter 12, Table 12.1, page 61 | Not applicable | 30 | NIL | 30 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 30 | |||||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
Jane Peacock
Member
Dr Julian Parmegiani
Medical Assessor
Dr Margaret Gibson
Medical Assessor
30 November 2021
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