Spratt v Allstaff Australia Sydney Pty Ltd
[2022] NSWPICMP 482
•25 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Spratt v Allstaff Australia Sydney Pty Ltd [2022] NSWPICMP 482 |
| APPELLANT: | Melissa Spratt |
| RESPONDENT: | Allstaff Australia Sydney Pty Ltd |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Tomassino Mastroianni |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 25 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Lumbar spine injury; appellant alleged error in the assessment of Diagnosis Related Estimate (DRE) II and submitted DRE III should have been found; Medical Assessor (MA) should have assessed DRE III on the basis that one major criterion and one minor criterion satisfied in accordance with the criteria in Paragraph 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 August 2022 Ms Melissa Spratt (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 7 July 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, 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.
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.
The appellant did not seek re-examination by a MA member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because, although the Appeal Panel found error, there was sufficient material before the Appeal Panel for it to make a determination.
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.
The MAC
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.
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 matter was referred to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
•
Date of injury:
15/11/19
•
Body parts / systems referred:
Cervical spine
Thoracic spine
Lumbar spine
•
Method of assessment:
Whole Person Impairment”
The MA issued a certificate as follows:
Body Part or system
Date of Injury
Chapter,
page and paragraph number in SIRA guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Cervical spine
15/11/19
Chap 4 P 24
P 392 T 15-05
5
0
5
Thoracic spine
P 389 T 15-04
0
0
0
Lumbar spine
P 384 T 15-03
7
1/10th
6
Total % WPI (the Combined Table values of all sub-totals)
11
The worker appealed.
The appeal concerns the assessment of the lumbar spine only. The MA placed the appellant in DRE Category II of his lumbar spine with 5% whole person impairment (WPI), which is the subject of complaint on appeal, to which he has added an additional 2%, about which there is no complaint on appeal, giving a total of 7%. He has then made a one-tenth deduction, about which there was complaint on appeal, leaving 6% WPI.
In summary, the appellant submitted on appeal as follows:
(a) the MA should have found that the appellant fell into DRE Category III of her lumbar spine because she satisfied the criteria for radiculopathy in accordance with paragraph 4.27of the Guidelines, and
(b) the MA erred when he made a one- tenth deduction under s 323.
In summary, Allstaff Australia Sydney Pty Ltd (the respondent employer) submitted that the MA did not make a demonstrable error or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The MA recorded a history consistent with the other evidence that was before him as follows:
“Ms Spratt related that on 15/11/19, she had been working in an area alone. Her tasking was to load pallets with appropriate merchandise. She was driving a PTP machine (similar to a forklift but the tines stick out to the rear). On this device she had a pallet. She would be tasked by information coming through a headset of where to go and what to put on the pallet. When the pallet was fully loaded, she would wrap it and send it off down the system. As she was pulling out the pallet wrap, this broke and she tumbled backwards. She came down mostly on her left side and to the rear, hurting her neck, thoracic spine, lumbar spine and her left hip.
She eventually got to a doctor and sought further assistance. All of her clinical management so far has been conservative.
She was later reviewed by Specialist Spinal Surgeon, Dr Peter Khong. It was identified that there was a pars inter-articularis defect at the L5/S1 articulation with a small associated spondylolisthesis. It was suggested that this may need surgical stabilisation in years to come. Ms Spratt is not very keen on this idea at the moment and unless it becomes very much worse, she would prefer not to have spinal surgery.
Her clinical management has therefore remained conservative with physiotherapy, hydrotherapy and now a cautious form of physio-Pilates.
· Present treatment:
As advised, she pursues her physio-Pilates programme. She also takes extensive anti-inflammatories and some over-the-counter analgesics.
· Present symptoms:
Pain in her neck. Lower back pain with occasional radiation down her left leg. Sometimes she experiences a flare up with pain in her mid-back and occasionally this can radiate around to the front.
· Details of any previous or subsequent accidents, injuries or conditions:
She described that in early 2018 she had been involved in a vehicle accident. Her car had been hit on the front left. It had been subsequently repaired fairly satisfactorily. She was shaken about in this but seems to have resolved fairly well so that she was able to return to her previous physical activities, which included bushwalking and a lot of gymnasium work. Her job was also physically arduous.
· General health:
This is fairly good. She is not having treatment for anything else.
· Work history including previous work history:
Ms Spratt has a background of painting and decorating. She then did beauty therapy.
From 2016 through to 2019 she worked in a Woolworths warehouse.
She subsequently got back to work in an administrative capacity. Today was her last day in this job and it is anticipated that she will take up a similar job which is office based in the near future.
· Social activities/ADL:
Ms Spratt is single and without dependents. She is currently living alone. She smokes a couple of cigarettes a day and occasionally has the odd drink.
Her hobbies include walking and more recently, photography although she has not done much of this.
She is able to drive for about 45 minutes with a lumbar support.
At home she does all of the housework herself, although finds this difficult, particularly bending to make beds. The grass is cut by a neighbour.”
An MA’s assessment cannot be based on self report. It must be the result of an independent clinical assessment on the day of examination and assessed in accordance with the criteria in the Guidelines.
The MA conducted a thorough physical examination of the appellant and recorded his findings relevant to the lumbar spine as follows:
“Ms Spratt was of average stature and fairly lean, fit looking build. She was not in obvious discomfort.
….
Lumbar Spine. There was ache in the lower back radiating out to each side and particularly towards the left side. There was also a shallow sigmoid scoliosis centred at the upper lumbar spine concave to the right. A corresponding sigmoid scoliosis curvature in the lower thoracic spine was concave to the left.
There was associated tenderness in her lower back, mostly to the left of the mid-line.
On forward flexion she could reach her lower thighs with a McRae-Wright movement of 3cm. Lateral flexion to each side and extension were reduced to half the range. Lateral rotation to each side was a bit better at two-thirds of the range.
Lower Limbs. Ms Spratt walked normally. She could also walk on heel and toe. Squatting was reduced to one-third of the range.
The legs were equivalent in length and in circumference at thigh and calf.
No significant features were identified with the hips, knees or ankles. Sensation to pinprick was minimally reduced over the antero-medial side of the left foot and ankle. Elsewhere sensation was throughout the normal distribution and was equivalent. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.
The straight leg raise test was conducted in the sitting position. She could fully extend each knee, although seemed to have a little difficulty on the left side, which she thought was due more to weakness of that side rather than to any increasing tension sign.”
The MA had regard to the special investigations relevant to the lumbar spine as follows:
DATE
MRI SCANS
RESULTS
29/11/19
Lumbar spine
Pars inter-articularis defect at the L5/S1 articulation with a minor spondylolisthesis and associated degenerative changes. The sigmoid scoliosis is concave to the right, centred at the L2 level.
The MA summarised the injury and diagnosis as follows:
“Summary of injuries and diagnoses:
Ms Spratt gives a history of a sudden fall backwards and to her left, where she came down onto hard ground. This resulted in a jarring injury to her neck, mid-back and lower back. There was also bruising to the left hip complex which has long since resolved.
It has been identified that she has experienced a musculo-ligamentous strain at these three major spinal areas. With the thoracic spine this seems largely to have resolved, although occasionally she experiences a tight sensation with occasional pain radiating around to the front.
At the lumbar spine it has been identified that there is a pre-existing pars inter-articularis defect at the L5/S1 articulation. There is also a small associated spondylolisthesis.
Her clinical management has been conservative, although it has been suggested that she may need surgery at the L5/S1 articulation. She would like to put this off for as long as possible.
The remainder of her clinical management has been conservative. She is now trying to get back to being physically a bit more active.”
The MA regarded the appellant’s presentation as “completely consistent”.
The MA explained his impairment assessment in respect of the lumbar spine as follows:
“Lumbar Spine. She continues to have significant dysfunction of the lumbar spine. There were some minor neurological features down the left leg, although this was insufficient to diagnose radiculopathy. She is therefore assessed in DRE Lumbar Category II. This provides a whole person impairment ranging between 5% and 8%, depending on the activities of daily living. For this she would attract a further 2%, giving 7%.”
He had regard to the other expert opinions that were before him and he explained where his opinion differed from the IME qualified on the appellant’s behalf Dr Gehr as follows:
“Specialist Orthopaedic Surgeon, Dr Eugene Gehr in his report of 07/07/20 has a very much higher whole person impairment evaluation. With both the cervical spine and lumbar spine, he has identified radiculopathy. I was unable to demonstrate this at all in the cervical spine. At the lumbar spine, although there were some minor neurological features, these were insufficient to generate a diagnosis of radiculopathy.”
The MA is entitled to rely on his clinical findings on the day of examination when rating impairment but the impairment must be rated correctly according to the Guidelines.
The Guidelines provide at paragraph 4.27 the criteria by which radiculopathy can be found by a MA as follows:
“4.27 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):
i.loss or asymmetry of reflexes
ii.muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
iii.reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
iv.positive nerve root tension (AMA5 Box 15-1, p 382)
v.muscle wasting – atrophy (AMA5 Box 15-1, p 382)
vi.findings on an imaging study consistent with the clinical signs (AMA5, p 382).”
On the MA’s examination findings the appellant has loss of sensation which was reproducible and anatomically localised to an appropriate spinal nerve root distribution. This represents a finding of one major criteria.
In addition, there is satisfaction of one minor criteria because there are findings on an imaging study consistent with the clinical signs. The MRI undertaken 30 November 2019 (page 34 of the Application to Resolve a Dispute) demonstrated “multiple findings as described, causing high grade foraminal narrowing at L5/S1 on the left side likely compressing the exiting left L5 nerve root and the emerging left S1 nerve root within the central canal on a background of a postero central fissure”.
Having satisfied two of the criteria in paragraph 4.27 one being major criteria, the appellant is entitled to an impairment rating of DRE III or 10% WPI. To which there is to be added 2% allowance for ADLs given by the MA (which is not the subject of complaint). This yields 12% WPI before any deduction under s 323.
The deduction by the MA of one-tenth under s 323 was the subject of complaint on appeal. However, the underlying pathology which was aggravated by the injury has contributed to the level of permanent impairment assessed and should therefore be taken into account. Accordingly the Appeal Panel can discern no error in the one-tenth deduction made by the MA under s 323. Appling this deduction to 12% WPI leaves 11% WPI (after rounding) for the lumbar spine.
Under the combined values table, 11% for the lumbar spine combined with 5% for the cervical spine (not the subject of complaint on appeal) yields 15% WPI as a result of the referred injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 7July 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: | W6378/21 |
Applicant: | Melissa Spratt |
Respondent: | Allstaff Australia 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 Dr Tim Anderson 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 SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 15/11/19 | Chap 4 | P 392 | 5 | 0 | 5 |
| Thoracic spine | P 389 | 0 | 0 | 0 | ||
| Lumbar spine | P 384 | 12 | 1/10th | 11 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 15 | |||||
0