Singh v East Coast Steel Pty Ltd
[2022] NSWPICMP 496
•2 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Singh v East Coast Steel Pty Ltd [2022] NSWPICMP 496 |
| APPELLANT: | Ranjit Singh |
| RESPONDENT: | East Coast Steel Pty Ltd |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 2 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Complex injuries and multiple assessments; appellant submitted the Medical Assessor (MA) erred in two respects, firstly in his assessment of both the upper and lower digestive tracts and secondly with respect to the deduction he made for scarring; Panel accepted error re scarring and upper digestive tract but no errors re lower digestive tract; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 September 2022 Ranjit Singh (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Associate Professor Philip Truskett, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 3 August 2022.
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.
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 one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal without further examination.
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.
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 MA erred in two respects, firstly in his assessment of both the upper and lower digestive tracts and secondly with respect to the deduction he made for scarring.
In reply, the respondent submits that no errors were made.
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 MA for assessment of whole person impairment (WPI) in respect of the chest/sternum (noting that the appellant’s Independent Medical Examiner assessed this by reference to an analogous condition in the thoracic spine), scarring, the left upper extremity (shoulder), the cervical spine and the upper and lower digestive tract resulting from an injury on 19 February 2015.
The MA obtained the following history:
“This is an extraordinary complex history.
Mr Singh described an injury which occurred on 19 February 2015 at approximately 12 midday. At that time, he was involved with cleaning the head of a machine. This head moved while sliding on a film of oil. Apparently, this oil needed to be changed every 3 months but had not been changed for some 9 months. He complained about this to the manager. He was pulling this head towards him. It was difficult to slide. The head weighed approximately 200kg. As he did so, he felt some pain in his upper sternum. He felt he had pulled a muscle.
He completed his shift.
A few days later Mr Singh attended his Local Medical Officer, Dr Raj Dogra of Minto. He was examined and he was advised that he had pulled a muscle.
Mr Singh continued working but with ongoing discomfort.
Imaging was performed which showed no fracture. A CT SPECT scan was performed some 2 months later 8 April 2015. This scan was reported by Dr Vivian Fernandes and concluded:
‘1. Trauma/microfracture in the first sternal segment adjacent to the manubriosternal junction mainly on the left. It is adjacent to the left third or fourth costal cartilage articulation at the sternum. This correlates to his local symptoms.
2. In addition, there is costovertebral stress reaction (left greater than right) in the fourth and fifth costovertebral junction posteriorly to the thorax. No evidence of fracture elsewhere.’
Mr Singh was advised that this would slowly settle down by his local doctor.
He continued working and was provided with assistance at work.
Mr Singh had persisting discomfort.
In early 2016, Mr Singh began to develop swelling over the upper part of his sternum in the region of the manubriosternal joint on the left side. This slowly progressed to a red lump which measured approximately 4cm in diameter.
He then attended his wife’s doctor, Dr Hector. An ultrasound was performed, and it was thought that this was an infected sebaceous cyst. He was referred to Dr Andrew Ong (General Surgeon of Campbelltown). He was first assessed by Dr Ong on 21 April 2016.
From his letter at that time, Dr Ong stated that there was a 5.6 x 4.2 x 2.8cm egg-shaped infected sternal lump which was thought on ultrasound to be an infected sebaceous cyst. Dr Ong was of the view that this should be drained urgently to avoid potential contamination with the sternal fracture.
Mr Singh was subsequently admitted to Campbelltown Private Hospital on 27 April 2016 for drainage of a large abscess cavity which contained pus. Mrs Singh informed me that it may have burst before this procedure.
He continued to have this dressed by home nursing. Apparently, the pus was ‘sterile’ when cultured.
Mr Singh then had ongoing dressings, but this apparently did not heal.
He returned to see Dr Andrew Ong on 17 October 2016. Further imaging was performed which showed a loculated collection in the sternum, as well as possible involvement of sternal bone and cartilage implying possible osteomyelitis.
Dr Ong organised further debridement.
Mr Singh underwent further debridement by Dr Ong on 19 October 2016. The tissue from this debridement demonstrated necrotic granulomatous tissue with granulomas showing central necrosis. Ziehl-Neelsen stain (specific for tuberculosis) showed acid-fast bacilli. The swab also grew methicillin sensitive Staphylococcus aurous.
Mr Singh then came under the care of Dr Lisa Noonan (Infectious Disease Physician).
From her letter dated 15 November 2016, Dr Noonan provided a comprehensive description of Mr Singh’s TB investigation. She expressed the view that Mr Singh had primary tuberculosis of chondral or sternal element with secondary infection with Staphylococcus aureus.
It was attempted to define if Mr Singh had active TB in his lungs.
In Campbelltown Hospital, Mr Singh was assessed by Professor Iain Gosbell and Dr John Ng. A sputum sample could not be obtained despite efforts. There was a suggestion of some nodules on CT scanning of his lungs that may have been tuberculous. Bronchoscopy would not be performed by the respiratory physicians.
Mr Singh was commenced on long term anti-tuberculous therapy and was treated with appropriate antibiotics for his methicillin sensitive Staphylococcus aureus. Anti-tuberculous treatment continued for approximately 9 months. His sternal wound healed.
In relation to his work, Mr Singh was initially off work for 1 month from the time of the initial abscess drainage. He then continued working until 13 October 2016, prior to his second operation. He was then off work for approximately 3 months and returned to light duties.
It was around that time in 2018, when Mr Singh began to experience gradual progressive pain in his neck and left shoulder. He attended Dr Pauline Hector in relation to this and was referred Dr Carlos El-Haddad (Rheumatologist).
Investigations revealed a rotator cuff tear of his left shoulder. Mr Singh was referred to A/Prof Mark Haber (Orthopaedic Surgeon) by Dr El-Haddad.
He was first assessed by A/Prof Haber on 9 October 2018. He recommended arthroscopic rotator cuff repair of the left shoulder. This was performed on 3 December 2018 at East Sydney Private Hospital.
Despite initial left shoulder improvement, the shoulder became more painful and stiff. A/Prof Haber subsequently performed an arthroscopic subacromial decompression and release of adhesions on 18 October 2019 at Eastern Suburbs Private Hospital. This was followed by physiotherapy.
Mr Singh advised that there was no real improvement in his left shoulder.
Mr Singh advised that his neck pain also progressed.
He was assessed by Dr Renata Bazina (Neurosurgeon) on 7 April 2021 in relation to his neck.
From her letter at that time, Dr Bazina stated that Mr Singh continued to experience neck pain, headache, and non-radicular left upper limb symptoms. He had advised her that this was from the time of his work accident in 2015. She was of the view that a left C5/6 transforaminal steroid injection may be of benefit.
Apparently, this was provided with no real benefit.
Mr Singh was also assessed by Dr Michael Davies (Pain Specialist). He assessed him on 14 May 2020 and at that time Mr Singh described left sided neck pain and left shoulder girdle pain with pain radiating down his left arm to the elbow.
An MRI scan of the cervical spine had been performed by I-MED Radiology on 13 January 2020 and described a C5/6 prominent left paracentral disc osteophyte complex with mild central canal stenosis and mild indentation of the ventral cord with encroachment on the left C6 nerve root. There was also a right uncovertebral osteophyte formation resulting in severe right foraminal stenosis with potential impingement on the right emerging C6. (My comment: This is not symptomatic.)
Mr Michael Davies concluded that Mr Singh had chronic neck, left shoulder and left back pain of uncertain aetiology. He recommended a supraclavicular left nerve block.
Mr Singh informed me that he had several nerve blocks undertaken, which would help him for 4 to 5 days, but with no further benefit.
I was also advised that Dr Bazina advised him to undergo a C5/6 fusion, but he sought a second opinion. He was recently assessed by Dr Renata Abraszko (Neurosurgeon of Campbelltown) who also advised neck surgery, but Mr Singh did not wish to progress with this.
Mr Singh has been unable to return to work since 2018.
Mr Singh also described bowel symptoms. He indicated that he has had reflux disease in 2008, which persisted for approximately 1 year. This was treated with Somac and resolved.
There was documentation that Mr Singh did undergo a gastroscopy performed by Dr Ian Turner (Gastroenterologist) on 3 November 2015, where it was described that he had a normal oesophagus, stomach, duodenum and no hiatus hernia.
Mr Singh underwent subsequent gastroscopy performed by Dr Christine Verdon on 6 February 2020. At this procedure, she described the oesophagus, stomach and duodenum as normal. Routine biopsies were taken. The biopsies apparently showed mild chronic inflammation of the gastric biopsy with no Helicobacter, with a normal small bowel biopsy.
He also stated that he had some bright rectal bleeding in early 2020. He attended Dr Stephen Fulham (General Surgeon). He was assessed by Dr Fulham on 31 August 2020. At that time he described a few months of painless bright rectal bleeding during defaecation.
A colonoscopy was performed at Campbelltown Public Hospital on 24 February 2021. This showed diverticular disease in the sigmoid colon, but no other abnormality.”
After documenting Mr Singh’s present treatment, the MA then noted present symptoms as follows:
“Neck. Mr Singh experiences pain at the back and left side of his neck. Pain is present all the time and would score 8/10 and will exacerbate to 10/10 most nights. Pain radiates to the back of his left shoulder and the side of his arm and may radiate to his little and ring fingers. This only occurs at night but not during the day. This could be radicular distribution. Pain is made worse with movement.
Left Shoulder. Mr Singh has pain at the side and front of his shoulder which is present all the time. He would score this pain as 8/10 and is worse with activity.
Thoracic Spine. This relates to Mr Singh’s left scapular pain described in neck pain.
Upper Digestive Tract. Mr Singh experiences bad reflux particularly with spicy foods. He has no trouble swallowing and will have acid which wells into his mouth. He is a vegetarian. He states that he cannot drink milk because it causes abdominal cramping. He experiences retrosternal burning pain but no real epigastric pain. He will experience nausea, but no vomiting. He states that he weighed 82kg 3 years ago, and now weighs 68kg because he is not eating. He has lost his appetite. He tends to eat a bland diet.
Lower Digestive Tract. Mr Singh opens his bowels two to three times per day. His motion might be windy and loose. He also has episodes of constipation. He will also experience gas bloat with colicky abdominal pain. This is a call to stool. He also states that he has to get up one to two times at night to open his bowels. He has good bowel control. He can distinguish flatus from faeces.
Scarring. Mr Singh states that the scar on his chest causes him pain and pressure.”
After documenting Mr Singh’s general health, work history and the impact of his injuries on his activities of daily living, the MA then set out his findings on physical examination as follows:
“Mr Singh was a cooperative man. He spoke adequate English, but much of his history was provided by his wife.
He walked with an unusual gait, with his left arm semi-flexed and with a limp on his left leg, reminiscent of a left hemiplegic gait.
He sat throughout the interview.
He had an extremely flat affect. His left arm was left motionless in his lap…
On examining his chest wall, there was a 2cm diameter round depressed scar at the junction of the middle and upper third of his sternum. This was tethered and non-tender.
On examining his neck, there was no muscle guarding. There was, however, a reduction in neck movement which was far greater than that which was observed during interview. Neck flexion and extension were one quarter normal. Lateral flexion to the left and right were one quarter normal. Rotation to the left and right were one quarter normal. All movements were performed quite slowly.
Biceps, triceps and supinator jerks were present and equal. There was, however, a reduction in sensation that was variable and could not be explained by anatomical means. There was reduced sensation of 8/10 on the entire left arm, with components of 4/10 that were variable on the inner aspect but did not follow dermatomal distribution. Right arm sensation was normal. Power and tone were normal.
When examining his elbow, however, there was marked reduction in elbow movement:
Reduction in left elbow movement was said to be due to pain in the left shoulder. There was no feasible anatomical explanation for this.
There was no wasting of the muscles of the upper limbs. Both arms measured 29cm in circumference, 10cm above the olecranon. Both forearms measured 24cm at their widest point.
On examining his abdomen, his abdomen was soft. There were no palpable masses. There was no organomegaly. There was no ascites. He did not appear anaemic or jaundiced.
On examining his back, there was no kyphosis or scoliosis. There was no loss of lumbar lordosis. There was no paravertebral muscle guarding.
Power, tone, and sensation in both lower limbs were normal. Knee jerks, medial hamstring jerks and ankle jerks were present and equal.
There was no wasting of the muscles of the lower limbs. Both thighs measured 41cm in circumference, 10cm above the patella. Both calves measured 36cm at their widest point.
Mr Singh could walk on his toes and on his heels. He could manage a two third squat with support.
There was a good range of back movement. Back flexion and extension were two thirds normal. Lateral flexion to the left and right was normal. Rotation to the left and right was normal.
On examining his shoulders, there was no wasting of the muscles of the upper limbs. There was marked reduction in left shoulder movement which could not be explained by shoulder pathology:
When performing passive abduction for impingement of the left upper limb, Mr Singh pushed down heavily, which was usually not the practice in patients with severe shoulder pain.
He was helped to dress and undress by his wife. He appeared extremely pain focused.”
The MA then turned to consider the radiological material he had. Relevant to the issues in dispute, he said:
“An ultrasound of the left parasternal region dated 1 December 2016 was performed by I-MED Radiology and reported by Dr Andrew Robinson as follows: ‘Extensive inflammatory tissue is seen deep to the scar, extending to the parasternal region. At the superior and left lateral margin of this area, is a deeper small fluid collection.’”
The MA then summarised the injuries and diagnoses as follows:
“Tuberculous infection of the parasternal region, leading to a pathological fracture with subsequent tuberculous abscess and scarring.
Degenerative disease of the cervical spine.
Rotator cuff tear, left shoulder
Gastroesophageal reflux disease.
Irritable bowel syndrome.”
As regards consistency of presentation, the MA said:
“There were considerable inconsistencies noted.
• Mr Singh had an unusual gait which did not reflect his pathology.
• The amount of neck movement witnessed during interview was far greater than that which was demonstrated at direct examination.
• The sensory changes of his left upper limb could not be explained on dermatomal or peripheral nerve injury.
• The almost complete lack of left shoulder movement demonstrated was not in keeping with known shoulder pathology.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA said: “Yes,” adding:
“The degenerative changes in Mr Singh’s neck demonstrated on imaging would have developed prior to his injury as described. The tuberculosis infection of his sternum must also be pre-existing based on the history provided and subsequent illness progress.”
The MA assessed a total WPI of 9%.
He explained his calculations as follows:
“Scarring
Stable: Yes. Reference: AMA 5, Chapter 8, Section 8.2, Page 175 and Table 8.2, Page 178 and WorkCover Guides, Chapter 14, Page 74, TEMSKI. WPI – 2%.
Reason for Assessment:
According to the TEMKSI table, Mr Singh is conscious of the scar, there is a noticeable colour difference, can easily identify the scar, there are some trophic changes, there are no staple marks, anatomic location is not easily visible, there is contour defect, and there are no limitations to ADLs and no treatment is required, there is some adherence. This is the majority of 2% WPI. A 2% WPI is therefore assigned. This however is fully deducted as Dr Noonan stated the tuberculous abscess was primary in that it was an intrinsic infection which may have caused a pathological fracture of the costal cartilages or sternum, as the actual injury described would not be of sufficient force to cause a fracture in normal circumstances. This was part of the tuberculous process. If it had not been for his primary tuberculous infection, then no abscess and subsequent scar would have occurred. On this basis, the 2% is fully deducted.
Upper Digestive Tract
Reference is made to WorkCover Guides, Chapter 16, Section 16.9 and AMA 5, Table 6-3, Page 121. WPI – 0%. Reason for Assessment: A 0% WPI has been assigned as according to Paragraph 16.9 there must be symptoms and signs of digestive tract disease. The symptoms Mr Singh describes is reflux oesophagitis. He describes no symptoms of gastritis. Endoscopy performed by Dr Christine Verdon shows no macroscopic oesophagitis or gastritis, although mild microscopic gastritis was found on histology. This mild gastritis is not symptomatic. A 0% WPI is therefore assigned.
Lower Digestive Tract
Reference is made to WorkCover Guides, Chapter 16, Page 78, Paragraph 16.9 and AMA 5, Chapter 6, Section 6.3, Page 128 and Table 6-4. WPI – 0%.
Reason for Assessment:
A 0% WPI has been assigned as Mr Singh suffers from irritable bowel syndrome. A colonoscopy shows diverticular disease only which bears no relationship to his condition and is constitutional. On this basis, according to Paragraph 16.9 of the WorkCover Guides, a 0% WPI has been assigned.”
The balance of his comments relate to body parts not the subject of appeal.
The MA then turned to consider the other medical evidence and said:
“Reference is made to the report by Dr Sikander Khan dated 30 March 2021. An accurate history is provided. Dr Khan opined that in relation to Mr Singh’s gastrointestinal tract, he developed symptoms because of types of antibiotics and medication taken. He does, however, describe his symptoms accurately as reflux in the upper digestive tract and diverticulosis in the lower digestive tract causing his abdominal pain.
In relation to this, Dr Khan assesses Mr Singh’s upper digestive tract as 2% whole person impairment with 1% deduction but has not demonstrated both symptoms and signs. Mr Singh’s endoscopies do not reflect adequate signs to explain this calculation, nor does he demonstrate symptoms of gastritis.
In relation to his lower digestive tract, Dr Khan assigns a 2% whole person impairment due to diverticular disease. Diverticular disease is a constitutional disorder and unrelated to Mr Singh’s injury or the treatment of it. I therefore do not support a 2% whole person impairment in relation to the lower digestive tract…”
In commenting upon the deductions he made, the MA said:
“In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Osteoarthritis of the cervical spine
(ii)Primary tuberculosis of the manubriosternal cartilaginous complex
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:
Tuberculous of the manubriosternal cartilage complex. This is the sole cause of the sternal scarring and a significant component of the pathological fracture that caused Mr Singh’s sternal chest pain and subsequent abscess. There is no measurable impairment from his pathological fracture as once his TB had been treated, this has resolved. The scarring of the chest wall is, however, entirely related to his tuberculosis as the infective process would not have occurred without it. A 2% whole person impairment in relation to his scarring has been fully deducted…”
The MA assessed 0% WPI in respect of both the upper and lower digestive tracts and 2% WPI in respect of scarring, from which he deducted 100% for a pre-existing condition.
The appellant challenges the findings and assessments in respect of both the upper and lower digestive tracts and scarring.
Dealing firstly with the issue of scarring, the appellant submits as follows:
(a) The MA said: “the actual injury described would not be of sufficient course in normal circumstances to cause a fracture.” This conclusion in essence means that the MA has made a finding as to injury which is not within his preview [sic].
(b) The fact that there might have been a pre-existing condition which made the applicant vulnerable to the fracture does not mean that there was no work-related injury. The mechanism of injury was accepted as causing a fracture following which there was the development of the cyst and the consequent scarring. The entire 2% WPI should be attributed to the scarring resulting from the injury.
The MA took a comprehensive history in what we agree was a complex case.
He said:
“From her letter dated 15 November 2016, Dr Noonan provided a comprehensive description of Mr Singh’s TB investigation. She expressed the view that Mr Singh had primary tuberculosis of chondral or sternal element with secondary infection with Staphylococcus aureus.”
The tuberculosis was a condition unrelated to Mr Singh’s injuries.
Imaging studies confirmed “Trauma/microfracture in the first sternal segment adjacent to the manubriosternal junction mainly on the left… In addition, there is costovertebral stress reaction (left greater than right) in the fourth and fifth costovertebral junction posteriorly to the thorax…”.
If he had not contracted the tuberculosis, this condition would have resolved completely, as the MA noted was the medical advice given to Mr Singh at the time.
It was the tuberculosis that led to the infection. That condition compounded an otherwise benign injury which eventually settled.
As the MA correctly pointed out in terms of the pathology:
“Tuberculous of the manubriosternal cartilage complex is the sole cause of the sternal scarring and a significant component of the pathological fracture that caused Mr Singh’s sternal chest pain and subsequent abscess. There is no measurable impairment from his pathological fracture as once his TB had been treated, this has resolved. The scarring of the chest wall is, however, entirely related to his tuberculosis as the infective process would not have occurred without it. A 2% whole person impairment in relation to his scarring has been fully deducted…”
Having said that, we do agree with the appellant that the MA seems to have questioned causation which had already been determined. That was an error.
Nevertheless, we again point out that if Mr Singh had not contracted the tuberculosis, he would not have got the infection which in turn led to the scarring.
We accept that the fractured sternum did play some part in the overall sequence of events, but in our view, was a relatively minor contributor to the scarring.
Having carefully considered all of the evidence, we are of the view that a four-fifths deduction is appropriate and consistent with that evidence.
In those circumstances, the WPI for scarring remains at 0%.
Turning now to the upper digestive tract, the appellant submits as follows:
(a) The MA has ignored the symptom complained of by the applicant of nausea.
(b) The MA said that the applicant "described no symptoms of gastritis" despite the objective sign of the gastritis found on histology.
(c) The nausea however is a symptom of gastritis and that symptom together with the objective evidence of gastritis on histology should attract an impairment rating.
Although the gastroscopy performed by Dr Christine Verdon on 6 February 2020 she said revealed “the oesophagus, stomach and duodenum as normal,” the biopsies showed “mild chronic inflammation of the gastric biopsy with no Helicobacter, with a normal small bowel biopsy.”
The appellant certainly complained of some gastric symptoms which the MA concluded were consistent with gastroesophageal reflux disease (GORD).
In other words, he concluded that Mr Singh had symptoms but no signs of gastritis. He said:
“He describes no symptoms of gastritis. Endoscopy performed by Dr Christine Verdon shows no macroscopic oesophagitis or gastritis, although mild microscopic gastritis was found on histology (our emphasis). This mild gastritis is not symptomatic. A 0% WPI is therefore assigned.”
In our view, given the findings on investigation, some impairment is warranted, in line with AMA 5. We agree that the appropriate WPI should be 1%.
Turning now to the lower digestive tract, the appellant submits as follows:
(a) The MA noted that the colonoscopy showed diverticular disease and stated that this was "constitutional", but he failed to consider whether the medication that the applicant had been taking for his injuries… aggravated the diverticulosis.
(b) Dr Khan was of the view that the applicant had suffered an aggravation of his diverticulosis.
(c) The MA failed to consider whether there had been any aggravation of diverticulosis, but if he did he failed to give any reasons or any explanation and did not expose his process of reasoning.
(d) The MA considered that the applicant had irritable bowel syndrome (IBS) in his lower digestive tract. This is contrary to the opinion of Dr Khan in which he explains why he disagrees with the diagnosis of IBS noting that there was no history of IBS.
(e) Dr Khan goes on to explain at some length the effects of the prolonged use of analgesics, antiinflammatory medication, and opioids all of which the applicant was taking for some time. The MA did not explain why he preferred the diagnosis of IBS and why he rejected the opinions of Dr Khan.
The colonoscopy performed at Campbelltown Public Hospital on 24 February 2021 showed diverticular disease in the sigmoid colon and no other abnormality.
The MA also refers to a gastroscopy and biopsy performed on 6 February 2020 which showed a normal small bowel with the stomach and duodenum being described as normal.
Diverticulosis is a constitutional condition.
In addition, IBS can result from all sorts of things, in particular dietary issues.
In our view, MA has provided sufficient reasons as to why he disagreed with Dr Khan’s assessment of 2% WPI due to diverticular disease.
As the respondent pointed out:
“The MA specifically states that ‘diverticular disease is a constitutional disorder and unrelated to Mr Singh’s injury or the treatment of it’. The MA further acknowledges that Dr Khan describes the Appellant’s ‘symptoms accurately as reflex in the upper digestive tract and diverticulosis in the lower digestive tract causing his abdominal pain’. There is no objective evidence of colon or rectal disease (paragraph 16.9 of the SIRA Guidelines).”
We note the comments of Dr Sethi that: “diverticulitis is caused by long term dietary fibre intake and is unrelated to his medications.”
Dr Sethi also observed that “a time gap of 3 years between starting medications and developing gastrointestinal symptoms is a very prolonged period of time and essentially rules out any causative role for his medications.”
There is no proof that any bleeding resulted from Mr Singh’s injuries. As a constitutional condition, bleeding can occur at any time.
For these reasons, we cannot see any error by the MA in his assessment in respect of the lower digestive tract.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 August 2022 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: | W1327/22 |
Applicant: | Ranjit Singh |
Respondent: | East Coast Steel 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 Associate Professor Philip Truskett 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 WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Chest / Sternum | 19/02/2015 | Par 1.23 | 0% | 0 | 0% | |
| 2. Thoracic Spine | 19/02/2015 | Chapter 4, Pg 22-30 | Chapter 15, Section 15.5 Page 388, Table 15.4, Pg 389 | 0% | 0 | 0% |
| 3. Scarring | 19/02/2015 | Chapter 14, Page 74, TEMSKI | Chapter 8, Section 8.2, pg175 | 2% | 4/5ths | 0% |
| 4. Left Upper Extremity (Shoulder) | 19/02/2015 | Chapter 1, Section 1.36, and | Pg 474, | 5% | 0 | 5% |
| 5. Cervical Spine | 19/02/2015 | Chapter 4 | Chapter 15, Table 15.5, Page 392 | 7% | 1/2 | 4% |
| 6.Upper digestive tract ---------------- 7. Lower digestive tract | 19/02/2015 --------------- 19/02/2015 | Chapter 16, Section 16.9 Chapter 16, Page 78, Paragraph 16.9 | Table 6-3, Page 121. Chapter 6, Section 6.3, Page 128 Table 6-4 | 1% 0% | 0 0 | 1% 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 10% | |||||
0