Singh v Civic Electronics Pty Ltd
[2021] NSWPICMP 137
•2 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Singh v Civic Electronics Pty Ltd [2021] NSWPICMP 137 |
| APPELLANT: | Tarlochan Singh |
| RESPONDENT: | Civic Electronics Pty Ltd |
| APPEAL PANEL: | Member Catherine McDonald Dr Richard Crane Dr Philippa Harvey-Sutton |
| DATE OF DECISION: | 2 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker fell 2.5 metres suffering injuries to his cervical and lumbar spines; as a result of ingesting medication, he suffered consequential conditions in his upper and lower digestive tracts; worker alleged that the assessor failed to assess “sensory blunting” as radiculopathy; application of Guidelines with respect to assessment of digestive tract; requirement for signs as well as symptoms; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 April 2021 Tarlochan Singh lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 March 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 was 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, limited to the grounds 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).
RELEVANT FACTUAL BACKGROUND
Mr Singh was employed by Civic Electronics Pty Ltd (Civic) to install CCTV and security cameras. On 20 March 2019 he was installing a CCTV camera. He walked along a metal roof but did not notice that one section had been replaced by plastic sheeting the same colour as the roof. He fell about 2.5 metres to the veranda floor below, suffering an injury to his cervical and lumbar spines.
Mr Singh was not admitted to hospital. His injuries were investigated and treated with injections and physiotherapy. He was referred for pain management. He suffered a consequential condition in his digestive system as a result of the medication he took.
The Medical Assessor assessed 13% whole person impairment (WPI) comprised of 5% for the cervical spine and 8% for the lumbar spine. He assessed 0% WPI in respect of each of the upper and lower digestive tracts.
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.
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 the MAC does not disclose an error. A medical examination cannot take place unless error has been found[1].
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792; Mercy Connect Limited v Kiely [2018] NSWSC 1421.
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.
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.
In summary, and in submissions prepared by Mr G Young of counsel, Mr Singh submitted that the Medical Assessor was in error to assess him in DRE Cervical Category II and not Category III. Mr Singh submitted that the Medical Assessor failed to consider his finding of sensory blunting and to conduct a complete clinical examination in that he failed to consider and assess some of the criteria for radiculopathy at paragraph 4.27 of the Guidelines.
Mr Singh submitted that the Medical Assessor was in error to assess 0% WPI in respect of his upper digestive tract because his symptoms constituted “other objective evidence” as required by paragraph 16.9 of the Guidelines. He submitted that the Medical Assessor considered that his symptoms may be consistent with irritable bowel syndrome but failed to have regard to the symptoms recorded by Dr Greenberg, qualified on his behalf.
Mr Singh did not appeal with respect to the assessment of his lumbar spine.
In reply and in submissions prepared by its solicitor, Ms Bellemore, Civic submitted that Mr Singh’s radiological investigations did not disclose anything which would permit a finding of radiculopathy. The Medical Assessor explained why he disagreed with Dr Dias, who had assessed Mr Singh at the request of his lawyers.
Civic submitted that the Medical Assessor appropriately assessed Mr Singh under Table 6.1 of AMA 5 in respect of his upper digestive tract, noting that weight loss was an essential criterion. He was appropriately assessed at the lower end of class 1. Mr Singh had not undergone investigations. Similarly the assessment was appropriate in respect of the lower digestive tract, noting that irritable bowel syndrome is rated at 0%.
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[2] 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.
[2] [2006] NSWCA 284.
Some general principles
The Medical Assessor was required to assess Mr Singh as he presented on the day of the examination[3].
[3] Guidelines paragraph 1.6.
He was required to consider the medical history and information but he was not bound to accept what other assessors found. Campbell J described his task in State of New South Wales v Kaur[4]:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[4] [2016] NSWSC 346.
Cervical spine
The Medical Assessor noted that Mr Singh suffered soft tissue injuries to his neck and back. He recorded his symptoms:
“Mr Singh confirmed today that he continues to have neck pain which can extend down the left side to the arm and occasionally will affect the left ring finger. He also gets a similar radiation on the right side but this is not constant. His back pain is worse than his neck pain and the pain extends down both legs and he gets attacks of pain and numbness on the soles of his feet.”
The Medical Assessor described his examination:
“Cervical Spine
Mr Singh demonstrated restriction of flexion to half range and extension was near normal. Left and right rotation was to two thirds of the normal range. There was diffused tenderness to palpation. There was muscle guarding on the left side but no muscle spasm and no alteration of spinal contour.Upper Extremities
The patient was able to demonstrate a normal range of shoulder, elbow and wrist movements on both sides. There was sensory blunting involving both hands and the left forearm and upper arm. Reflexes were brisk and equal and there was no unilateral muscle wasting.”He noted that there was a degree of illness behaviour but that it did not prevent a proper assessment.
The Medical Assessor explained his assessment of Mr Singh’s cervical spine:
“I refer you to the AMA 5th Edition of the Guides to the Evaluation of Permanent Impairment Chapter 15, Table 15.5 on Page 392. The patient has ongoing pain with referral of symptoms into the upper limbs but no evidence of radiculopathy and he is therefore placed in DRE Category II which is a 5% Whole Person Impairment. When asked what stops him carrying out activities he indicated it is mainly his lumbar spine so I will assess the impact of the lumbar spine injury on the activities of daily living.”
He explained that he did not make the same examination findings as Dr Dias and that the criteria for radiculopathy were not satisfied.
The Medical Assessor assessed Mr Singh in DRE Cervical Category II which results in 5% WPI.
The criteria for that DRE category are:
“Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, isometric loss of range of motion or non-verifiable ridiculous complaints, defined as complaints of ridiculous pain without objective findings; no alteration of the structural integrity.”
The findings made by the Medical Assessor are compatible with assessment DRE Cervical Category II. The description of his examination was concise but described all relevant components. His reference to sensory blunting is a reference to a non-verifiable radicular complaints.
The Medical Assessor reviewed an MRI scan dated 26 April 2019 and noted that it showed spondylitic changes particularly at C4/5 and C5/6.
Radiculopathy for the purpose of assessment under the legislation is defined in paragraph 4.27 and 4.28 of the Guidelines:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, 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 (AMA5 Box 15-1, p 382)
· muscle wasting – atrophy (AMA5 Box 15-1, p 382)
· findings on an imaging study consistent with the clinical signs (AMA5, p 382).
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.”
The complaints made by Mr Singh and the observations of the Medical Assessor on the day of his assessment do not fulfil two or more of those criteria. The Medical Assessor said the reflexes in Mr Singh’s arms were brisk and equal. His sensory complaints are diffuse and are not localised to an appropriate nerve root distribution. They are not explained by the degenerative changes seen on the MRI scan.
The examination conducted by the Medical Assessor was appropriate and the findings recorded do not justify a finding of radiculopathy. Mr Young submitted that the examination was inadequate but the Medical Assessor’s description of the measurements and tests he undertook show that he was alert to the requirements of the Guidelines.
As an administrative decision maker, the presumption of regularity applies to the conduct of the examination by the Medical Assessor. The operation of the presumption was described in Bojko v ICM Property Service Pty Ltd[5], where Handley AJA said[6]:
“The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’”
[5] [2009] NSWCA 175.
[6] At [39].
The Medical Assessor’s assessment in respect of the cervical spine was an appropriate exercise of his clinical judgement and application of the Guidelines and AMA 5.
Upper digestive tract
The Medical Assessor set out the history Mr Singh gave:
“About eight to nine months after the injury, he began to develop epigastric pain with a feeling of food sticking in the lower oesophagus when he ate. He would awake with reflux at night and occasionally with disturbance of his breathing due to reflux with overflow. He also developed alternating constipation and diarrhoea with explosive motions and occasional soiling of his underwear. He told me that his upper abdominal symptoms were worse when he lies down. Accordingly, he was given medications but at no stage was he referred to a gastroenterologist or referred for endoscopy. He confirmed that there has been no bleeding from the bowel and he is not aware of any haemorrhoids.”
He described the examination undertaken:
“Abdomen
There was diffused tenderness to palpation in the epigastrium and in the left iliac fossa. There was no guarding, rigidity or rebound and no palpable masses. Auscultation was
normal.
Perianal examination was unable to be carried out because of the patient’s back pain and disability.
No other examination was carried out.”The Medical Assessor described his reasoning for the assessment made:
“Digestive System
When assessing the digestive system, the first assessment is of the presence or absence of nutritional impairment. I therefore refer you to AMA 5, Table 6.1 on Page 120 for the Desirable Weights for Men by Height and Body Build. The patient has a height of 172cm and this allows a desirable weight range of 62.0 - 76.0 kilograms and therefore at 63 kilograms he is at the lower end of his desirable weight range and therefore there is no evidence of significant nutritional impairment.Upper Digestive Tract
The upper digestive tract is assessed according to Table 6.3 on Page 121. The patient gives a history of food sticking at the lower end of the oesophagus, reflux, and difficulty breathing. Clinically he has diffused [sic] tenderness but no other clinical signs. I refer you to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Paragraph 16.9 on page 78 for the gastrointestinal system and you will note that Table 6.3 has been modified to read there needs to be 'symptoms and signs' of upper digestive tract disease.I would accept that this patient has symptoms of upper digestive tract disease but there is no specific evidence and I would therefore consider that the patient has no rateable impairment for the upper digestive tract.”
The Guidelines modify AMA 5 with respect to the assessment of the upper digestive tract disease. AMA 5 in Table 6-3 (page 121) permits assessment in class 1 where there are:
“Symptoms or signs of upper digestive tract disease, or anatomic loss or alteration and continuous treatment not required and maintains weight at desirable level and no sequelae after surgical procedures.”
The Guidelines in paragraph 16.9 require that there be “symptoms and signs of digestive tract disease.” The paragraph goes on to provide:
“Nonsteroidal anti-inflammatory agents, including Aspirin, taken for prolonged periods can cause symptoms in the upper digestive tract. In the absence of clinical signs or other objective evidence of upper digestive tract disease, anatomic loss or alteration a 0% WPI is to be assessed.”
Mr Young submitted that the Medical Assessor found symptoms of upper digestive disease (food sticking to the lower end of the oesophagus, reflux, difficulty breathing and tenderness but did not assess more than 0%. He said that the Guidelines should be read disjunctively so that they required clinical signs or other objective evidence.
It is important to remember the difference between symptoms and signs. Symptoms are subjective experiences. Signs are objective phenomena which can be observed by someone else.
The Medical Assessor said that there were symptoms but no objective evidence. He applied the Guidelines appropriately because there were no objective signs as required by the Guidelines.
Lower digestive tract
The Medical Assessor said:
“The lower digestive tract is assessed using Table 6.4 on Page 128 and under this table there needs to be signs and symptoms of colonic or rectal disease. In this man's case he has symptoms which may be consistent with irritable bowel syndrome which under Paragraph 16.9 on Page 78 of the NSW Workers Compensation Guidelines has a 0% Whole Person Impairment as does constipation. I would therefore be of the opinion that there is no rateable impairment of the lower digestive tract.
In total the patient has a 0% Whole Person Impairment for the digestive tract.”
The Medical Assessor assessed 0% WPI in accordance with the Guidelines which provide:
“Effects of analgesics on the lower digestive tract:
· Constipation is a symptom, not a sign and is generally reversible. A WPI assessment of 0% applies to constipation.
· Irritable bowel syndrome without objective evidence of colon or rectal disease is to be assessed at 0% WPI.
· Assessment of colorectal disease and anal disorders requires the report of a treating doctor or family doctor, which includes a proper physical examination with rectal examination if appropriate, and/or a full endoscopy report.
· Failure to provide such reports may result in a 0% WPI. “
The Medical Assessor was required to assess Mr Singh at the time of the examination. He was not bound to accept the symptoms described by Dr Greenberg, as Mr Singh submitted.
The Medical Assessor said:
“Dr Greenberg assesses the patient by analogy using Paragraph 1.23 on Page 5 of the NSW Workers Compensation Guidelines to the Evaluation of Permanent Impairment, 4th Edition. However, I refer you to Chapter 16 for the digestive system on Page 78 and you will note that in Paragraph 16.9 assessment of Class 1 requires there to be ‘symptoms and signs of digestive tract disease and that constipation and irritable bowel syndrome affect a 0% rating. I would therefore be of the opinion that the patient’s condition is in fact covered by the NSW Workers Compensation Guidelines and there is no need to use an analogy to assess the patient which results in an incorrect assessment.”
The assessment under Table 6.4 of AMA 5 required symptoms and signs of colonic or rectal disease. The Medical Assessor did not observe them. Mr Singh has not undergone endoscopy, as Dr Greenberg noted. The assessment of 0% was appropriate.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 March 2021 should be confirmed.
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