Slattery v Eaton & Sons Pty Ltd
[2021] NSWPICMP 221
•24 November 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Slattery v Eaton & Sons Pty Ltd [2021] NSWPICMP 221 |
| APPELLANT: | Ian Slattery |
| RESPONDENT: | Eaton & Sons Pty Ltd |
| APPEAL PANEL: | Member Brett Batchelor Dr Roger Pillemer Dr David Crocker |
| DATE OF DECISION: | 24 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by worker that the Medical Assessor (MA) made an assessment on the basis of incorrect criteria, and that the Medical Assessment Certificate (MAC) contained a demonstrable error; the appellant injured his lumbar spine and was assessed by the MA as having sustained 14% whole person impairment (WPI) as a result of such injury; the MA found that the worker no longer had radiculopathy in accordance with 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, re issued 1 March 2021 (Guidelines) as he only had an absent left ankle reflex; the Appeal Panel found error in the MAC in that there was a minor criterion indicating radiculopathy in accordance with 4.27 of the Guidelines, in addition to the major criteria found by the MA of absent ankle reflex on the left side; a further examination of the appellant worker was undertaken by a member of the Appeal Panel; Held -finding that there were sufficient criteria to satisfy 4.27 of the Guidelines; MAC revoked and new MAC issued containing an assessment of 16% WPI. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 March 2021 Ian Slattery (the appellant/Mr Slattery) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Murray Hyde Page, a Medical Assessor (MA) (formerly referred to as an Approved Medical Specialist), who issued a Medical Assessment Certificate (MAC) on 8 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 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, re issued 1 March 2021. (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant suffered an injury to his back on 22 August 2017 when he had to pull a long length of timber weighing about 40 kg from a rack. This required him to stand and lean in an awkward position, and as he stepped down from the rack on which he was standing onto a gravel path, he felt a sudden onset of pain in his lower back. He stopped work immediately, and was transported to Singleton Hospital, where he was given pain medication and allowed to go home.
Mr Slattery was treated by his general practitioner from 22 August 2017 who arranged a CT scan of his lumbar spine. He underwent physiotherapy treatment and returned to work on restricted duties on 22 September 2017. He was terminated from his employment on 24 September 2017.
The appellant was given a clearance to work for his brother on a cattle property, and engaged in this work between March 2018 and April 2019. In April 2019 his back pain was so severe that he had to stop work and was referred to spinal surgeon, Dr Hardeep Salaria, who arranged an MRI scan of the lumbar spine on 12 May 2019. This showed a large sequestrated L5/S1 disc. Dr Salaria carried out an L5/S1 discectomy on 27 May 2019. On 4 October 2019 Dr Salaria undertook further surgery to treat a meningocele which formed after the surgery of 27 May 2017. Mr Slattery underwent four months of physiotherapy and rehabilitation. He has had no further significant treatment.
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 the worker should undergo a further medical examination because the Panel found error in that there was a minor criteria indicating radiculopathy in accordance with [4.27] of the Guidelines, in addition to the major criteria found by the MA of absent ankle reflex on the left side. This error is in respect of “findings on an imaging study consistent with the clinical signs (AMA5 , p 382)”, based on the findings in the MRI scan dated 6 February 2020[1].
[1] Appeal Papers p 580.
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.
Further medical examination
Dr R Pillemer of the Appeal Panel conducted an examination of the worker on 16 November 2021 and reported to the Appeal Panel.
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. In summary, they are as follows.
Appellant
Demonstrable errors
The appellant notes that the MA, Dr Hyde Page, recorded a complaint of numbness in the anal area, which he did not challenge, nor did he state that this was not in the appropriate anatomical distribution for nerve damage to the L5/S1 nerve. The appellant submits that, on a fair reading of the MAC Dr Hyde Page failed to assess whether this symptom of impairment of sensation was “anatomically localized to an appropriate spinal nerve”, being the L5/S1 nerves, because there is no apparent engagement with the symptom and its significance. The appellant further submits that Dr Hyde Page failed to explain why this unchallenged symptom did not satisfy one of the major criteria noted in bold in [4.27] of the Guidelines.
The foregoing submission is made against the finding of the MA that the appellant was straightforward in his answers, and that there was no suggestion of any embellishment or exaggeration.
Incorrect criteria
The appellant submits that Dr Hyde Page failed to engage with the radiological findings in the MRI scan dated 6 February 2020 and make a finding as to whether it was an “imaging study consistent with the clinical signs”, the clinical sign being the numbness in the anal area. The appellant notes that the MRI scan dated 6 February 2020 demonstrated that “the L5/S1 disc has evidence of surgery on the left side with a large amount of epidural fibrosis extending to the L5 and S1 root sheath in the lateral recess”.
The appellant submits that if the MA did so engage, he failed to provide any, or any adequate reasons, which he was obliged to do.
The appellant submits that the MAC ought to be revoked by the Appeal Panel on the basis that it contains a demonstrable error and that the assessment was based on incorrect criteria. A new MAC should be issued.
The appellant submit that the Appeal Panel may have to re-examine him if it deems necessary to do so and to view the relevant scans.
Respondent
The respondent reviews the parts of the MAC which it submits are relevant to its submissions that there is no demonstrable error in the MAC, nor has the assessment in the MAC been made by the MA on the basis of incorrect criteria.
The respondent submits that the MA has considered the opinions of the independent medical examiners retained by both the appellant and the respondent, and notes that he has made specific comment upon the report of Dr Alan Hopcroft dated 17 October 2017, who found that Mr Slattery sustained 18% whole person impairment (WPI) in accordance with DRE Category III in respect of his lumbar spinal injury. This was on the basis that he required a re-operation to stop the cerebral spinal fluid leak, had significant impairment in respect of activities of daily living and incurred 1% WPI for scarring.
The respondent submits that the MA was required to make a clinical assessment based on his own findings on physical examination, review reports and investigations and use his clinical knowledge and experience, observing the SIRA (State Insurance Regulatory Authority) and AMA (American Medical Association) guidelines. The MA is not bound to accept at face value any medical or factual evidence provided, but must make a determination that is in accordance with the whole of the medical evidence and his own clinical findings.
The respondent reviews the authorities relevant to the issue of whether a “demonstrable error” appears in a MAC.
The respondent submits that the MA provided adequate reasoning for his conclusion in respect of his assessment of the lumbar spine, in particular, that it was entirely within the clinical judgement of the MA to consider the apparent numbness of the appellant’s anal area and determine whether “it is anatomically localised to an appropriate spinal nerve root distribution” (emphasis in the respondent’s submissions).
The respondent rejects the submission that the MA has failed to explain why this unchallenged symptom did not satisfy the criteria in bold in [4.27] of the Guidelines. The MA found that it does not amount to one of the major criteria to conclude that radiculopathy is present.
The respondent submits that it is clear from the MAC that the MA has considered the findings of the MRI of 6 February 2020 and concluded that it was not “findings on an imaging study consistent with the clinical signs” (emphasis in submissions).
The respondent submits that what the appellant is trying to do in the appeal is simply to “cavil” with matters that are entirely within the clinical judgement of the MA.
The respondent submits that the MA has weighed up all of the medical evidence and drawn his own conclusion based on his own clinical assessment. He has not based his assessment on incorrect criteria nor does the MAC contain a demonstrable error. The appeal should be dismissed.
The respondent submits that there is no need for an examination of the appellant by a member of the Appeal Panel, as the findings of the MA are already detailed in the MAC.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC (see Siddik v Workcover Authority of NSW[2] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[3])
[2] [2008] NSWCA 116.
[3] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[4] 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.
[4] (2006) 67 NSWLR 372, [2006] NSWCA 284 (Vegan).
In Merza v Registrar of the Workers Compensation Commission[5] Hoeben J stated that “demonstrable error” for the purposes of s 327(3)(c) of the 1998 Act is “an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment.” In MarinaPitsonis v Registrar of the Workers Compensation Commission[6] the Court of Appeal approved the decision of Hoeben J in Merza, and approved and followed the decision of the Court of Appeal in Vegan.
[5] [2006] NSWSC 939 (Merza) at [39].
[6] [2008] NSWCA 88 (Pitsonis) at [47]-[49].
The report of the member of the Appeal Panel, Dr Pillemer, who carried out a further examination of the appellant on 16 November 2021, is as follows:
“REPORT OF THE EXAMINATION BY MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: 6661/20
Appellant: IAN SLATTERY
Respondent: Eaton & Sons Pty Ltd
Examination Conducted By: Dr Roger Pillemer
Date of Examination: 16 November 2021
1. The workers medical history, where it differs from previous records
I read Mr Slattery the history that was taken by Dr M Hyde-Page at the time of his consultation on 19 February 2021 and basically he agreed with this history, although he does clarify that the work he did on his brother’s cattle property was simply to drive a farm ute around, checking on various properties doing security work, and some very ‘basic gardening’, simply watering the lawn.
He also points out that where the AMS has indicated that he is able to live independently and ‘do all his personal care’, that he has considerable difficulty with this.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Slattery has constant ongoing pain in his low back at this stage which ranges between 5-8/10. He still gets referred pain down his left lower limb but only going as far as his left ankle, and these symptoms are intermittent and ‘come and go’. He will get this referred pain down his leg ‘every couple of days’ and it can last anything from half an hour to an hour.
His symptoms are aggravated by sitting or standing for long, or doing a lot of walking and bending and lifting, and he does get quite a bit of relief by taking his tablets (Panadeine Forte) and by lying down.
As far as limitations are concerned, his maximum walking time would be 20 minutes and he stopped driving about a year and a half ago as sitting tended to aggravate his symptoms. As mentioned he lives alone and has significant difficulty with housework and very little gets done, and he also as mentioned has considerable difficulty with his self-care.
3. Findings on clinical examination
Mr Slattery was an adult male who undresses and dresses slowly and carefully and was noted to walk with a slightly antalgic gait on the left side. He was unable to walk on heels and toes mainly because he has a significant callosity in relation to his right heel and another significant callosity in relation to his left forefoot.
He shows restriction of back movement, only getting his fingertips as far as his knees in flexion and other movements were equally restricted.
Straight leg raising is present to 85° on the right and becomes uncomfortable at 70° on the left with pain in his back and some referred pain down his left lower limb.
Knee reflexes are present and equal, his right ankle reflex is present, but I was unable to elicit his left ankle reflex.Mr Slattery has distinct hypoaesthesia to pinprick on the sole of his left foot which is present with repeated testing.
Motor power was good in all groups tested, and the circumference of his left thigh as measured 10cm above his kneecaps, and his left calf are both ½cm less than the right side. (He is right side dominant).
I elected not to palpate his low back today.
Mr Slattery has a well-healed 4cm midline scar in the lower lumbar region.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Slattery has not had any further investigations carried out.”
The Appeal Panel accepts the findings of Dr Pillemer on his further examination of the appellant, including his finding that there is no assessment of impairment for scarring.
As a result of the following findings by Dr Pillemer, which are all features of radiculopathy:
(a) distinct hypoaesthesia to pinprick on the sole of the left foot, present with repeated testing;
(b) absent left ankle reflex, and
(c) straight leg raising on the left side restricted to 70 degrees with pain in the back and some referred pain down the left lower limb,
the Panel finds that there is no doubt that Mr Slattery does have evidence of radiculopathy on the left side in accordance with the requirements of [4.27] of the Guidelines. Both the sensory loss and the absent ankle reflex are signs of S1 nerve root involvement.
The appellant therefore falls into DRE Category III of his lumbar spine[7] as suggested by the MA, with 10% WPI. To this should be added an additional 2% for interference with activities of daily living, giving a total of 12% WPI.
Mr Slattery is then entitled to further impairment according to Table 4.2[8], with an additional 3% for the radiculopathy, and a further 2% for his second operation, giving a combined total of 5% WPI according to Table 4.2.
Combining the 12% noted above with the 5% for Table 4.2, gives a total of 16% WPI. There is no deduction for pre-existing condition.
[7] AMA 5 p 384 Table 15-3.
[8] the Guidelines p 29 Table 4.2.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 March 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 Murray Hyde Page 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 AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar spine | 22/08/17 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 16% | nil | 16% |
| Scarring (TEMSKI) | 22/08/17 | Chapter 14 Pages 73-74 | 0% | not applicable | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
Brett Batchelor
Member
Dr Roger Pillemer
Medical Assessor
Dr David Crocker
Medical Assessor
24 November 2021
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