Squire-Wilson v Menz
[2023] NSWPICMP 304
•5 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Squire-Wilson v Menz [2023] NSWPICMP 304 |
| APPELLANT: | R Squire-Wilson |
| RESPONDENT: | Peter Menz |
| Appeal Panel | |
| MEMBER: | R J Perrignon |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 5 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of whole person impairment (lumbar spine, scarring); whether Medical Assessor erred in assessing a diagnosis related estimates (DRE) category III impairment by reason of surgery at L4/5 and L5/S1; whether he erred in assessing scarring as a result of the surgery; whether surgery resulted from injury; Held –Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer, R Squire-Wilson, appeals from the Medical Assessment Certificate of Medical Assessor Wong dated 8 November 2022.
On 6 June 2017, the respondent worker, Mr Menz, suffered injury when he fell off a motor bike in the course of his employment as a farm hand. On 26 March 2019, he drove his tractor into a hole at work.
On or about 12 August 2022, Mr Menz commenced proceedings in the Personal Injury Commission, alleging injury on 6 June 2017, and claiming whole person impairment compensation as a result of that injury. He made no claim in those proceedings for whole person impairment compensation as a result of injury on 26 March 2019.
On 19 September 2022, after amendment on 19 October 2022, and in accordance with consent orders made on 13 September 2022, the President referred the relevant body systems for assessment of whole person impairment as a result of injury on 6 June 2017. The was no referral for assessment of whole person impairment as a result of injury on
26 March 2019.Medical Assessor Wong assessed a 33% whole person impairment (5% cervical spine, 13% right upper extremity – shoulder and elbow, 12% lumbar spine, 6% right lower extremity - knee, scarring 1%) as a result of injury on 6 June 2017.
With respect to the lumbar spine, Medical Assessor Wong assessed a DRE category III impairment in accordance with [4.27] of the Guidelines, because on 13 September 2021,
Mr Menz had come to posterior decompression surgery at L4/5 and L5/S1 at the hands of neurosurgeon, Dr Fielding, after driving his tractor into a hole at work on 26 March 2019. In accordance with Table 15-3 (AMA5) this yielded a 10% whole person impairment, to which Dr Wong added 2% for the effects on activities of daily living, and a further 1% for surgery at the second level (Guidelines, Table 4.2), totalling 13% whole person impairment. From this figure, he deducted 10% for pre-existing degenerative disease, to arrive at 12%.The appellant employer says that the Medical Assessor erred in assessing the lumbar spine by reference to the decompression surgery conducted on 13 September 2021, because that surgery was not conducted for the purposes of treating the effects of injury on 6 June 2017. Rather, it says, it was conducted to treat left sided sciatica resulting from the later injury on 26 March 2019, when the worker drove his tractor into a hole. Impairment resulting from that injury, it says, was not referred for assessment, and is in fact the subject of a separate claim made to the insurer. It says that, in assessing the lumbar spine and other body parts, impairment resulting from injury on 26 March 2019 should have been excluded, but was not.
No error is alleged in respect of the allowance of 2% for effects on the activities of daily living, or the deduction of one tenth for pre-existing degenerative disease.
The employer also seeks leave to appeal out of time against the assessment of scarring, to the extent that the Medical Assessor assessed scarring which resulted from the lumbar decompression surgery. The worker objects to the grant of leave. As this further ground of appeal necessarily flows from the appellant’s submissions with respect to the lumbar spine, and both parties have had the opportunity to make submissions on it, the grant of leave does not result in unfair prejudice to the worker. Leave is granted.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines). Though error was identified, it was capable of correction without further examination.
Submissions
The parties made written submissions which have been taken into account. The appellant’s submissions are briefly summarised above. In addition, the appellant draws attention to the following evidence, not referred to by the Medical Assessor:
(a) the clinical notes of treating general practitioner Dr Gear on 15 February 2018, in which she records ‘no shooting leg pains, pins and needles, and normal bladder and bowel function’, and
(b) Dr Gear’s response of 22 May 2019 to the insurer’s questionnaire, in which she was asked whether the accident of 26 May 2019 aggravated a previous condition, and responded:
‘… previously no reports of sciatica + L[eft] leg weakness’.
The respondent submits in summary as follows:
(a) the Medical Assessor did not include in his assessment impairment resulting from the second injury on 26 March 2019;
(b) he explained at page 8 of his reasons that he accepted the worker’s evidence that, after recovery from the second injury, he suffered no symptoms additional to those he had been suffering from the initial injury of 6 June 2017, and
(c) it was open to him to accept that evidence, and to assess the worker on the basis of the symptoms he currently suffered, as the Medical Assessor did.
Assessment of the lumbar spine
The Medical Assessor took a history at [4] of injury on 6 June 2017 which resulted in, among other things, back pain. He took a history that the worker suffered low back pain with pain and numbness in the back of the left thigh, and that he returned to work on light duties from about October 2018. He noted that the worker injured his back again on 26 March 2019, after which on 26 June 2019 neurosurgeon Dr Karen Fielding diagnosed ‘left L5 radicular pain secondary to severe left L4/5 lateral recess stenosis causing severe left L5 nerve compression’.
The Medical Assessor noted that on 13 September 2021 Mr Menz came to posterior decompression of L4/5 and L5/S1 at the hands of Dr Fielding.
On examination of the lumbar spine, Dr Wong noted at [5] that range of movement was normal, and that:
“Neurological examination was normal with no sensory or motor deficits. The lower limb reflexes were normal and symmetrical.”
He concluded at [7] that the worker had injured his lumbar spine, among other things, when he fell off the motor bike on 6 June 2017.
He explained his assessment of the lumbar spine at [10a] – emphasis added:
“The lumbar spine was rated as DRE III at 10% based on decompression surgery performed. Additional 2% WPI was rated for ADL restriction for performance of household tasks as described (SIRA4 S4.35). Modifier for DRE allows 1% WPI for each additional level operated on. The total lumbar spine impairment = 13% WPI.”
At [10c], he noted that Dr Gothelf had assessed whole person impairment of the lumbar spine at 1% as a result of injury on 6 June 2017 and 10% as a result of injury on 26 March 2019. He observed that he ‘found it difficult to follow the doctor’s logic in his calculations’, but did not explain why.
He also noted, “Dr Powell did not rate the lumbar spine as he considered the lumbar spine injury belonged to a separated [sic] injury”.
Dr Wong concluded:
“After this examination, I came to the conclusion the multiple injuries [sic] were due to the accident on 6 June 2017. Mr Menz has aggravated his lumbar spine at the second injury on 26 March 2019. He was emphatic that he developed no additional symptoms after recovery from the 26 March 2019 accident. He did not suffer aggravation in any other existing injuries from 26 March 2019 accident, I agree with him.”
Doing our best, we interpret this passage as a finding that all current impairment resulted from injury on 6 June 2017, because Dr Wong accepted the oral evidence of the worker that, after recovering from the accident of 26 March 2019, his symptoms were no greater than they had been following the accident of 6 June 2017. That interpretation is supported by the fact that on examination, Medical Assessor Wong did not describe radiculopathy.
As his reasons make plain, Medical Assessor Wong assessed a DRE category III impairment, because of the posterior decompression surgery performed on 13 September 2021. This accords with the Guidelines at [4.37], which provide that surgical decompression for spinal stenosis merits DRE category III.
However, this approach requires a finding that the surgery of 13 September 2021 resulted from injury on 6 June 2017. No such express finding was made by the Medical Assessor, though it is necessarily implied.
We accept that the surgery was directed to treating the ‘’left L5 radicular pain secondary to severe left L4/5 lateral recess stenosis causing severe left L5 nerve compression’ which was diagnosed by Dr Fielding on 26 June 2019.
However, Dr Gear’s clinical note of 15 February 2018, and her response to the questionnaire of 22 May 2019, are compelling evidence that no sciatica was diagnosed until after the accident of 26 March 2019. The Medical Assessor appears to have assumed, without saying so, that the sciatica to which the surgery was directed was caused by injury on 6 June 2017. He made that assumption by accepting the oral evidence of the worker that he experienced left leg pain and numbness after that accident.
However, in accepting that evidence, he failed to consider the contrary evidence of Dr Gear. That amounted to a failure to consider relevant evidence, and to give reasons for accepting one over the other. It demonstrates error, necessitating that the Medical Assessment Certificate be set aside.
We note in passing that the initial symptoms reported by Dave O’Brien, physiotherapist in a referral to Dr Jude, neurologist dated 20 September 2017 stated that “he had commenced physiotherapy on 21st of June 2017 complaining of constant headaches, right shoulder pain, right elbow pain, right knee pain and lumbar spine pain” On examination, he reported “non specific low back pain”. There was no mention by the physiotherapist of sciatic symptoms during this three-month period.
Even if it was open to the Medical Assessor to prefer the worker’s evidence that he suffered left leg symptoms after the 2017 accident, those symptoms do not alone prove the existence of sciatica, let alone sciatica caused by pathology at L4/5 and L5/S1. In our view, it was not reasonably open to the Medical Assessor to find, as he appears to have done by necessary implication, that the surgery of 13 September 2021 resulted from injury on 6 June 2017. The evidence of Dr Gear compels the contrary conclusion, that it resulted from sciatica caused by the accident in March 2019.
In those circumstances, the task of the Medical Assessor was to assess the lumbar spine by reference, not to the surgery of 13 September 2021, but to the DRE criteria set forth in Table 15-3 of AMA5. In doing so, he was bound to exclude any permanent impairment which did not result from injury on 6 June 2017. His failure to do so demonstrates error, necessitating the setting aside of the Medical Assessment Certificate.
Based on the Medical Assessor’s findings on examination, we are able to make that assessment without further examination of the worker.
Assessment
Having regard to the evidence referred to above, we prefer the contemporaneous evidence of Dr Gear in her note of 15 February 2018, and in her response of 22 May 2019, to the recollection of the appellant expressed at examination years later as to the onset of sciatic symptoms. We are not satisfied that there was a causal nexus between the injury of
6 June 2017 and the onset of sciatic symptoms after the injury of 26 March 2019, notwithstanding the worker’s report to Dr Wong of numbness in the back of the left thigh after the first injury.The surgery is therefore not relevant to a selection of DRE category of impairment.
There is no evidence that radiculopathy was present before the second injury. However, on 15 February 2018 Dr Gear noted there had been significant back pain since his accident, not imaged previously, limited bending capacity, but without shooting pain to the legs, no pins and needles, and normal bladder and bowel function.
X-ray on 1 March 2018 showed a transitional vertebra at L5/S1 which is not an uncommon abnormality, degenerative joint disease at all levels of the lumbar spine, worst at L5/S1, and mild degenerative anterolisthesis at that level.
As there is no evidence of back pain prior to the first injury, it is likely that Mr Menz suffered a degree of lumbar spine impairment as a result of it. The evidence supports a DRE category II impairment, because there was evidence of lumbar spine stiffness in the physiotherapy notes on 12 September 2017 and guarding was noted on 26 September 2017. Along with the X-ray findings of lumbar spine osteoarthritis / degenerative changes on 1 March 2018, this is consistent with dysmetria and muscle guarding.
The evidence does not support a category III impairment in the absence of radiculopathy resulting from the first injury.
A category II impairment equates to 5% whole person impairment.
As indicated, no error is alleged in respect of the allowance of 2% for the effects on activities of daily living, or the deduction of one tenth for pre-existing degenerative disease demonstrated by X-ray. We are satisfied in any event that both are appropriate, noting that the extent of the degeneration is such that it must have pre-dated injury, and that, but for the pre-existing condition, current impairment would not be as great as it is. We allow 2% for the effects on activities of daily living, as did the Medical Assessor, giving 7% WPI. We deduct one tenth for the pre-existing degeneration evident on the scans reviewed by the Medical Assessor.
Accordingly, we assess 6% whole person impairment in respect of the lumbar spine.
Assessment of scarring
On examination, the Medical Assessor observed as follows with respect to the skin at [6]:
“Scarring – The lumbar spine had a 10 cm midline incision and it was well healed with no other disfiguring features. The right shoulder had only portal incisions and they were well healed. Right elbow had medial incisions and they were also well healed and not easily visible. Scarring was rated TEMSKI 1% WPI being the best fit category to the characteristics of the scars detailed in this report (SIRA4 T14.1).”
As we have found that it was not open to him to assume, or to find, that the lumbar spine surgery resulted from injury on 6 June 2017, the Medical Assessor erred in assessing the skin by reference to scarring resulted from that surgery.
However, his assessment was not confined to that scarring, but took into account portal and medical incisions of the right shoulder and elbow. The employer does not submit that these were not related to injury on 6 June 2017, or that the Medical Assessor was not entitled to take them into account. It does not submit that the assessment of scarring in respect of those incision marks did not merit an assessment of 1% whole person impairment.
In our view, it was reasonably open to the Medical Assessor to assess 1% in respect of the portal incisions, as they resulted from the relevant injury. In the absence of any ground of appeal to the effect that the reasons for selecting 1% are not sufficiently detailed, we do not propose to disturb the assessment of 1%.
Conclusion
For these reasons, the Medical Assessment Certificate of Medical Assessor Wong is revoked and replaced by the attached Medical Assessment Certificate.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Table 2 - Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002
Matter number: | W5126/22 |
Applicant: | Peter Menz |
Respondent: | R Squire-Wilson |
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 Medical Assessor Wong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation 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) |
| 1. Cervical Spine | 6 June 2017 | Chapter 4 P24-30 | Chapter 15 Table 15-5 | 5 | 1/10th | 5 |
| 2. Right upper extremity (shoulder, elbow) | 6 June 2017 | Chapter 2 P10-12 | Chapter 16 P433-521 | 14 | 1/10th | 13 |
| 3. Lumbar Spine | 6 June 2017 | Chapter 4 P24-30 | Chapter 15 Table 15-3 | 7 | 1/10th | 6 |
| 4. Right lower extremity (knee) | 6 June 2017 | Chapter 3 P13-23 | Chapter 17 P523-564 | 7 | 1/10th | 6 |
| 5. Skin Scarring | 6 June 2017 | Chapter 14 T 14.1 TEMSKI | 1 | Nil | 1 | |
| Total % WPI (the Combined Table values of all sub-totals) | 28% WPI | |||||
0
0
0