Spasevski v Planet Enterprises Australia Pty Limited
[2021] NSWPICMP 89
•10 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Spasevski v Planet Enterprises Australia Pty Limited [2021] NSWPICMP 89 |
| APPELLANT: | Jovan Spasevski |
| RESPONDENT: | Planet Enterprises Australia Pty Limited |
| APPEAL PANEL: | Member Brett Batchelor Dr John Dixon-Hughes Dr Richard Crane |
| DATE OF DECISION: | 10 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against findings in MAC on the grounds of the assessment being made on the basis of incorrect criteria and that the MAC contains a demonstrable error; the Medical Assessor (formerly AMS) deducted 100% of the assessment made by him on the basis that the appellant’s pre-existing but asymptomatic helicobacter pylori infection was solely responsible for the upper gastrointestinal tract symptoms and not the ingestion of Voltaren which the appellant was prescribed and which he took, and continues to take, to alleviate back pain from a work caused injury; Held- finding the Medical Assessor was in error in deducting 100% of the WPI assessed by him in respect of the upper gastrointestinal tract symptoms experienced by the appellant, and the continued taking of Voltaren contributed to the upper digestive tract symptoms; this was the cause of the symptoms complained of; finding that the deduction should be 50% pursuant to section 323(2) of the 1998 Act; finding the lower gastrointestinal tract symptoms resulting from irritable bowel syndrome had been correctly assessed by the Medical Assessor pursuant to Item 16.9, Chapter 18, page 78 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 April 2016 at 0% WPI; MAC issued by the Medical Assessor revoked and new MAC issued. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 December 2020 Jovan Spasevski lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Damodaran Prem Kumar, a Medical Assessor (formerly referred to as an Approved Medical Specialist), who issued a Medical Assessment Certificate (MAC) on 23 November 2020.
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 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).
RELEVANT FACTUAL BACKGROUND
The appellant worker Jovan Spasevski (the appellant/Mr Spasevski) suffered an injury to his back on 28 July 2005 arising out of or in the course of his employment with the respondent employer, Planet Enterprises Australia Limited. He consulted his general practitioner, Dr Blago Kuzmanovski and was sent for physiotherapy; imaging studies were carried out. After an attempt to return to work three days after the injury, Mr Spasevski ceased work on 4 August 2005 because of back pain. He has not worked since.
The appellant was treated for his back injury by Professor Van Gelder, neurosurgeon, who offered treatment by way of cortisone injections which was not accepted. Mr Spasevski was subsequently referred to the pain clinic at St George Hospital under the care of Dr Paul Bertolina. His condition did not improve.
Dr Kuzmanovski initially prescribed Voltaren for pain relief, and at a later date, Digesic. The appellant has continued to take Voltaren, a very strong non-steroidal anti-inflammatory. At a later date he was prescribed Nexium, a proton pump inhibitor, to counter the effect of Voltaren which is known to cause damage to the lining of the stomach and oesophagus.
Mr Thomas recollects that in around 2008 he started to get gastrointestinal symptoms in the form of reflux, pain in the abdomen area, bloating and heartburn. His bowel habits became erratic with diarrhoea followed by constipation.
Dr Kuzmanovski referred the appellant to Dr A J Sanki, general surgeon, for treatment of his gastrointestinal symptoms. Dr Sanki carried out a colonoscopy and gastroscopy on 10 November 2016 which resulted in a diagnosis of gastroesophageal reflux disease, Monilia, gastric ulcer and gastritis. Subsequent reports confirmed the presence of helicobacter and lactase deficiency. The appellant was prescribed medication to control a thrush condition and Nexium HP7, the standard treatment for helicobacter pylori. The colonoscopy was described as being normal.
Mr Spasevski’s upper digestive symptoms did not improve and he had a second gastroscopy and colonoscopy on 5 April 2017 carried out by Dr Sanki. The gastroscopy revealed:
(a) normal oesophagus;
(b) moderate erythematous;
(c) a single ulcer of 4 mm in the antrum of the stomach, which appeared to be of chronic nature with no active bleeding;
(d) that the stomach contained a small amount of clear fluid, and
(e) duodenitis with tiny erosions in the first part of the duodenum.
Dr Sanki reported on 8 July 2018 that histopathology results from the samples taken from the fundus showed no evidence of helicobacter, and another urea breath test carried out on 8 June 2017 showed negative result[1].
[1] Appeal Papers pp 51-53.
Dr Sanki provided a further report dated 23 July 2018[2] in which he provided an assessment of the upper and lower gastrointestinal tract. He assessed 9% whole person impairment (WPI) in respect of the upper gastrointestinal tract and 2% WPI in respect of the lower gastrointestinal tract.
[2] Appeal Papers p 50.
According to the history relating to the injury provided to the Medical Assessor Dr Kumar on 6 November 2020, a belief was expressed that further treatment was given for the helicobacter pylori.[3]
[3] Appeal Papers p 25.
The appellant was also independently medically examined by Dr Philip Sharpe, consulting surgeon, on 7 November 2018. In his report of that date[4] Dr Sharpe recorded that Mr Spasevski told him that he was again treated for helicobacter after the gastroscopy and colonoscopy carried out by Dr Sanki on 5 April 2017. Dr Sharpe’s opinion was that Mr Spasevski’s upper gastrointestinal symptoms were caused by recurrent helicobacter infections. The gastroscopies suggested chronic gastritis and an ulcer, which is in keeping with the helicobacter infection. Dr Sharpe assessed 0% WPI due to the helicobacter pylori which he said was not related to the appellant’s (back) injury, and 0% WPI with regard to the colonic and rectal disorders from which the appellant was suffering.
[4] Appeal Papers p 89.
The appellant had been previously assessed by an Approved Medical Specialist, Dr Nicholas A Talley, gastroenterologist/consultant physician, on 28 July 2011. In his MAC dated 2 August 2011[5] Dr Talley assessed Mr Spasevski as having sustained 1% WPI in respect of the upper digestive tract and 0% WPI in respect of the colon, rectum and anus. This assessment was the subject of an appeal to a Medical Appeal Panel which gave its decision on 12 December 2011[6]. The Appeal Panel found an error in the reasoning of the AMS and that it was therefore necessary for Mr Spasevski to be examined by a member of the Panel, Dr John Garvey. Dr Garvey reported no special investigations relevant to the digestive system and assessed the worker as having symptoms but no physical signs of upper digestive tract impairment. He also reported that Mr Spasevski had symptoms of irritable bowel syndrome, but no clinical evidence of organic gastrointestinal disease. The Appeal Panel issued a new MAC with the same WPI as the Approved Medical Specialist, but did so by applying the correct criteria and reasoning which it found to be absent from the MAC issued by Dr Talley.
[5] Appeal Papers p 115.
[6] Appeal Papers p 124.
The present treatment received by the appellant consists of seeing his general practitioner at least once a month. He last saw Dr Sanki in about March 2020.
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 neither the appellant nor the respondent requested re-examination by a Medical Assessor who is a member of the Appeal Panel and the Panel considers there is sufficient information in the appeal papers with which to make its decision.
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. They are not repeated in full, but have been considered by the Appeal Panel.
Appellant
In summary, the appellant submits that the Medical Assessor, Dr Kumar, cites no evidence that helicobacter was pre-existing, or pre-dates the work injury, neither of which required the use of analgesics. The appellant notes the Medical Assessor’s statement that “…his bowels were normal prior to the accident.”
The appellant submits that the Medical Assessor has made an error in making a deduction from his assessment of WPI, as it is not on a factual basis that he claims that the helicobacter pylori present in the appellant was a previous injury, or a pre-existing condition or abnormality. The submission is that the finding of the Medical Assessor that the appellant’s gastric condition is entirely unrelated to work is wrong. According to the appellant, there is no evidence that the helicobacter pylori was pre-existing prior to the work injury on 28 July 2005. The appellant had no gastric issues prior to the work accident and prior to the commencement of analgesics.
The appellant notes the concession of the Medical Assessor that the medication he takes, Voltaren 50mg twice daily, is a heavy dose and one could expect this to cause erosions in the stomach and the oesophagus if taken for more than a few months, and that he is somewhat protected from increased acidity by the use of Nexium 40mg daily, which is a heavy dosage. The appellant submits that the observations of the Medical Assessor that Nexium offers only partial protection, and that he would be somewhat protected, totally contradicts the reasoning later in the MAC.
The appellant submits that the Medical Assessor also makes his assessment on the assumption that the helicobacter pylori infection is still extant. He presumes that, in the absence of further tests being carried out, the infection is still present.
The appellant takes issue with the manner in which the Medical Assessor expresses his opinion in terms of “feelings or predictions”[7] rather than evidence and reasoning based on the appellant’s current state.
[7] See appellant’s submissions – Appeal Papers p 10.
The appellant submits that the contribution of lactose intolerance to his gastric issues is also irrelevant, as it pre-dated the work injury and there were no prior complaints.
For the foregoing reasons the applicant submits that the MAC contains a demonstrable error and the assessment was made on the basis of incorrect criteria.
Respondent
In reply, the respondent submits that the appellant’s submissions do not distinguish between “demonstrable error” and “incorrect criteria”, but that the submissions proceed on a global basis to argue that on the basis of factual discrepancies and asserted inconsistencies that the MAC contains a demonstrable error and was made on the basis of incorrect criteria.
The respondent submits that the fact that the appellant’s condition was previously asymptomatic does not assist in the application of s 323 of the 1998 Act, citing Cole v Wenaline Pty Limited[8] as authority for the proposition that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition was asymptomatic prior to the injury.
[8] [2010] NSWSC 78 (Cole).
The respondent notes the explanation of the Medical Assessor as to how helicobacter pylori gastritis is an infection usually acquired in early adulthood which is transmitted from person to person, and the details of such likely transmission. The respondent notes the Medical Assessor relies of two tests performed at gastroscopy to confirm his diagnosis, and submits that there is no evidence that lactose intolerance has been caused by the ingestion of medication.
The respondent submits that a fair reading of the MAC indicates that the Medical Assessor considered that whilst the majority of the worker’s symptoms are attributable to helicobacter pylori infection, there is also some contribution from his lactose intolerance. Therefore the asserted basis of appeal regarding lactose intolerance must fail.
In respect of the assessment of the lower digestive tract, the respondent submits that the assessment of the Medical Assessor is based on a diagnosis of irritable bowel syndrome and the application of Item 16.9 of the Guidelines, not on helicobacter pylori infection.
The respondent submits that no demonstrable error has been made out and there is no basis for a finding that the MAC was based upon incorrect criteria.
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. Relevant case law includes Siddik v Workcover Authority of NSW[9] and NSW Police Force v Registrarof the Workers Compensation Commission of New South Wales[10]).
[9] [2008] NSWCA 116.
[10] [2013] NSWCA 1792.
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 Appeal Panel notes that the appellant suffers from helicobacter pylori gastritis, lactose intolerance and irritable bowel syndrome. The helicobacter pylori gastritis was asymptomatic prior to the work related injury to Mr Spasevski’s back on 28 July 2005. The medical members of the Appeal Panel agree with the opinion of the Medical Assessor that this infection is usually acquired in early adulthood and is caused by a bacteria transmitted from person to person, usually through poor hygiene with contamination by faeces or vomitus, and is usually acquired from another person with the same condition[11]. Mr Spasevski has received three treatments with the standard treatment of Nexium HP7; however the condition has proved resistant to treatment. Notwithstanding the negative results for helicobacter pylori reported by Dr Sanki on 8 July 2018, referred to in [11] above, following the second gastroscopy on 5 April 2017, Mr Spasevski reported to Dr Sharpe on 7 November 2018 that he was again treated for helicobacter pylori after the last gastroscopy dated 5 April 2017. He reported to the Medical Assessor that he was vague about whether any further breath test was done, or whether he received any further treatment.
[11] See [10.b.] at Appeal Papers p 28.
As noted above at [30], Cole is authority for the proposition that the fact that a pre-existing condition is asymptomatic is irrelevant if it is a contributing factor causing permanent impairment. The Appeal Panel finds that the chronic helicobacter pylori infection from which the appellant suffers is a factor causing the permanent impairment from which he suffers in the upper gastrointestinal tract.
However the Appeal Panel finds that the Medical Assessor was in error in deducting the whole of the 2% WPI assessed in respect of the upper digestive system as being due to a pre-existing condition. The appellant was prescribed Voltaren by his general practitioner, Dr Kuzmanovski, from a short time after the injury on 28 July 2005. In his report dated 21 November 2005[12] the doctor notes Voltaren and Digesic as the current medications. The appellant has continued to take Voltaren, notwithstanding an attempt to cease this medication. He says that his recollection is that he started taking Nexium in about March 2008 and continues to take it. He tried to take less Voltaren, but got a lot of pain and had to go back on the original dosage[13]. His recollection is also that it was in around 2008 that he started to get gastrointestinal symptoms. Mr Spasevski says in his latest statement dated 17 July 2020[14] that he continues to take Voltaren and Nexium, and that his upper and lower digestive tract symptoms haver worsened since he continued to take the medication.
[12] Appeal Papers p 160.
[13] See undated statement of the appellant – Appeal Papers p 65.
[14] Appeal Papers p 67.
The medical members of the Appeal Panel note that Voltaren has an irritant effect on the upper digestive tract, and in the appellant’s case, the Nexium which has been prescribed has not been effective in giving relief from the symptoms experienced in the upper gastrointestinal tract. The Appeal Panel is of the view that a significant part of the appellant’s current symptomatology is caused by the continued ingestion of Voltaren.
The Appeal Panel accepts that the continued taking of Voltaren by the appellant has contributed to the upper digestive tract symptoms. For this reason, the Panel finds that there should be a deduction of 50% from the 2% WPI assessed by the Medical Assessor for the pre-existing helicobacter pylori condition.
The Appeal Panel finds that the error of the Medical Assessor identified in [39] above is a demonstrable error.
The Appeal Panel finds that the appellant’s lactose intolerance does not contribute to the aggravation of the pre-existing helicobacter pylori condition caused by Voltaren.
The Appeal Panel agrees with the finding of the Medical Assessor that irritable bowel syndrome from which the appellant suffers attracts 0% WPI in accordance with Item 16.9, Chapter 16, p 78 of the Guidelines, and that both colonoscopies have shown no disease other than incidental polyps in the last examination. These are not related to medication.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 2020 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 Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Damodaran Prem Kumar 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. Upper Digestive System | 28/07/05 | Chapter 16 Item 16-9 Page 78 | Chapter 6 | 2 | ½ | 1 |
| 2. Lower Digestive System | 28/07/05 | Chapter 16 Item 16-9 Page 78 | Chapter 6 | 0 | 0 | 0 |
| Total % WPI (the Combined Table values of all sub-totals) | 1% | |||||
Brett Batchelor
Member
Dr John Dixon-Hughes
Medical Assessor
Dr Richard Crane
Medical Assessor
9 June 2021
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