Southwell v Kate Fagan & Robin Squire-Wilson & Roger Squire-Wilson & Simon Squire-Wilson t/as Tiverton Partnership
[2023] NSWPICMP 281
•19 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Southwell v Kate Fagan & Robin Squire-Wilson & Roger Squire-Wilson & Simon Squire-Wilson t/as Tiverton Partnership [2023] NSWPICMP 281 |
| APPELLANT: | David John Southwell |
| RESPONDENT: | Kate Fagan & Robin Squire-Wilson & Roger Squire-Wilson & Simon Squire-Wilson t/as Tiverton Partnership |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 19 June 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appeal against 22% lumbar spine assessment; Held – appeal incompetent; submissions made in form of letter from solicitor to client; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 December 2022 David John Southwell, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
7 December 2022.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 17 October 2022 a delegate of the President referred this matter for a WPI assessment caused by injury to the:
· right lower extremity (knee);
· left lower extremity (knee);
· lumbar spine;
· ear, nose and throat (ENT) and related structures;
· skin, and
· scarring (TEMSKI).
The injury occurred on 22 August 2018.
The claims were assessed by Dr Kenneth Howison in respect of the ENT and related structures, Dr John Giles regarding the skin, and Dr Todd Gothelf in respect of the orthopaedic injuries. The appeal is against Dr Gothelf’s assessment only. The reference to the Medical Assessor in these reasons applies to Dr Gothelf.
Mr Southwell was employed by the “Tiverton Partnership” as a station hand doing the wide variety of work required in that occupation.
Mr Southwell suffered his injury as he stood up after changing oil on a motorbike and felt sudden back pain. He was unable to stand fully and was immediately admitted to hospital where a CT scan showed pathology at L4/5 in the form of a lumbar spinal stenosis with compression on the exiting nerve roots.
Mr Southwell came to surgery on 26 November 2019 in the form of an L4/5 laminectomy and microdiscectomy and rhizolysis and posterior interbody fusion with pedicle screw internal fixation. He had a nerve stimulator placed in June 2021 as he continued to suffer ongoing pain following the surgery. The stimulator was effective for three months and then ceased working.
The Medical Assessor assessed 22% WPI for the lumbar spine, from which he deducted one tenth pursuant to s 323 of the 1998 Act. He found no impairment to the lower extremities.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant did not seek to be re-examined by a Medical Assessor who is a member of the Appeal Panel. As no error has been found, a re-examination is not required.
The Medical Appeal Panel considered this appeal after some hesitation. Paragraphs [15] and [16] of Procedural Direction PIC 7 provide for the procedure in relation to an appeal to a medical appeal panel. The appellant has not complied with those provisions.
The decision from the President’s delegate stated:
“I note that the submissions are contained in the letter drafted by the appellant’s solicitors addressed to Mr Southwell.”
This is indeed the case. Mr McCabe wrote a letter to his client, Mr Southwell, which he copied to Penelope Hayes at IRO and a Mr John Dodd. Mr McCabe is the solicitor for Mr Southwell. No submissions were lodged, but rather Mr McCabe posed a number of questions to his client, which we will come to shortly.
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.
Medical Assessment Certificate
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 which 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.
Mr McCabe’s letter to his client appeared to discuss the assessment of the lumbar spine, and not the findings in relation to the lower extremities.
The MAC
The Medical Assessor explained his reasoning at [10b] of the MAC. He said:
“Lumbar Spine
Section 4.37 p. 29 the Guides indicates that operations for spinal fusion are considered under DRE IV. Table 15-3 p. 384 AMA5 indicates a 20-23% WPI. Section 4.35 p. 28 the Guides is used assess ADLs. Mr Southwell manages with his self care but struggles with his home care duties as a result of his ongoing symptoms. I consider a 2% loading reasonable resulting in a 22% WPI. Table 4.2 modifiers are considered. There was no radiculopathy, one level, one operation. Thus there is no additional impairment.”
SUBMISSIONS
Mr McCabe enquired of Mr Southwell:
“The question is, What is a level? Is a vertebral body a level? Is a disc a level?”
Mr McCabe set out the surgery that his client had undergone. He told Mr Southwell (although he addressed Mr Southwell in the third person) that Mr Southwell had undergone a three level fusion, which Mr McCabe advised would have entitled Mr Southwell to an additional 2% WPI.
Mr McCabe then asked of Mr Southwell:
“The question is, Is there any residual symptoms and radiculopathy? [sic]”
Mr McCabe submitted to Mr Southwell that he did have radiculopathy and was thus entitled to an additional 3% WPI.
We are puzzled as to why Mr McCabe would have made these enquiries of his client.
Mr Southwell was a station hand on the respondent’s property and did not appear to have any medical qualifications.Perhaps if Mr McCabe had obtained some advice from a medical specialist, he would have learnt that the surgery that Mr Southwell had performed on his was a one level fusion. He reproduced the entirety of Chapter 4 of the Guides which included an explanation of how radiculopathy was defined, but apparently did not read it.
This “appeal” is entirely without merit, and is rejected. The Panel confirms that the surgery described was at one level, and that no radiculopathy, as required by the criteria set out in Chapter 4.27 of the Guides, was present.
For these reasons, the Appeal Panel has determined that the MAC issued on
7 December 2022 should be confirmed.
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