State of New South Wales (south Western Sydney Local Health District) v Plust
[2021] NSWPICMP 177
•21 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (south Western Sydney Local Health District) v Plust [2021] NSWPICMP 177 |
| APPELLANT: | State of New South Wales (south Western Sydney Local Health District) |
| RESPONDENT: | Katarzyna Plust |
| APPEAL PANEL: | Member Jane Peacock Dr Phillipa Harvey-Sutton |
| DATE OF DECISION: | 21 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Injury to lumbar spine; no complaint on appeal about DRE III assessment; complaint on appeal about Activities of Daily Living (ADLs) allowance and failure to make a section 323 deduction; complaint on appeal that 2% WPI allowed for restrictions on ADLs when there was a prior award of 1% WPI for ADLs in respect of the cervical spine in respect of a different injury; Held - the Medical Assessor (MA) erred; WorkCover Guides paragraph 4.36 applied by the Panel which provides that “For injuries to different spinal regions on different dates, where there is a worsening of ability to perform ADL after the second injury, additional impairment may be assessed”; in accordance with the guides additional 1% WPI allowable not 2%; the MA erred when he failed to make a section 323 deduction on the basis there was radiology showing pre-existing changes at the affected level; the available evidence supported the making of a 1/10 deduction for this pre-existing condition relating to the same level as the disc protrusion causing the diagnosed radiculopathy; Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 June 2001 the State of New South Wales (South Western Sydney Local Health district) (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 5 May 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 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELIMINARY 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 that the respondent worker be re-examined by a MA who is member of the Appeal Panel, As a result of their preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Panel was not satisfied for the reasons set out below, that the MA had erred and absent error the Appeal Panel has no power to require a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
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.
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 a MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
• Date of injury: 13/09/13 • Body parts referred: Lumbar spine • Method of assessment: Whole Person Impairment”
The MA issued a MAC certifying as to the following:
Body Part or system Date of Injury Chapter,
page and paragraph number in SIRA guidelinesChapter, 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) Lumbar spine
13/09/13 Chap 4
P 24P 384
T 15-312 0 12 Total % WPI (the Combined Table values of all sub-totals) 12
The employer appealed. There was no complaint about the assessment of DRE III (10% whole person impairmen (WPI)) for the lumbar spine. The complaints on appeal were in regards to the allowance of 2% WPI for restrictions on activities of daily living (ADLs) and the failure to make a deduction under s 323 for any pre-existing injury, abnormality or condition.
In summary, the appellant submitted as follows:
· The MA erred in applying any impairment for ADLs to the lumbar spine. The worker has failed to admit evidence which demonstrates that the lumbar spine injury which occurred as a result of the frank injury sustained on 13 September 2013 caused a worsening of the worker’s ability to perform ADLs. Rather it is clear on the evidence that the injury to the cervical spine resulted in the totality of the worker’s ability to perform ADLs as opposed to the lumbar injury.
· The MA erred in assessing the WPI as 12% without a 10% WPI deduction for a pre-existing injury in relation to the lumbar spine. The worker suffered from a pre-existing condition to her lumbar spine prior to the frank injury on 13 September 2013 and that pre-existing condition has contributed to the worker’s present impairment to her lumbar spine. This should result in a 10% deduction for the pre-existing disorder.
In summary, the respondent worker submitted that the MA did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed. In summary, the respondent submitted as follows:
· In a report of the independent medical expert (IME) qualified on behalf of the appellant Dr Powell dated 5 March 2020 1% is allocated for ADLs, noting a normal capacity for self-care, albeit the observation that she should “avoid the heavier physical tasks such as lawn mowing and gardening, which are currently being done by her husband”, might well have warranted an assessment of 2% for ADLs.
· There is no evidence of any degree of impairment that may or may not have been related to the respondent’s pre-existing degenerative changes. While it cannot be denied that the respondent suffered an episode of sciatica in 2010, there is no evidence that it affected her ADLs, nor is there any evidence that the responent was impaired prior to her injury on 13 September 2013.
In respect of the allowance of ADLs, the Appeal Panel notes that the WorkCover Guides provide the following information in paragraph 4.36:
“For a single injury, where there has been more than one spinal region injured, the effect of the injury on ADL is assessed once only.
For injuries to one spinal region on different dates, the effect of the injury on ADL is assessed for the first injury. If, following the second injury, there is a worsening in the ability to perform ADL, the appropriate adjustments are made within the range. For example, if WPI for ADL is assessed as 1% following the first injury and 3% after the second injury, then WPI for ADL for the second injury is assessed as 2%.
For injuries to different spinal regions on different dates, where there is a worsening of ability to perform ADL after the second injury, additional impairment may be assessed. For example, if ADL for a cervical spine injury is assessed as 1%, and an assessment of a subsequent lumbar spine injury determined 3% WPI for ADL, then WPI for impact on ADLs for the lumbar injury is assessed as 2% WPI.”
In this matter it would seem reasonable to conclude that 2% should be added for ADLs based on the information provided in the MAC. If 1% WPI was allocated for the injury to the cervical spine then this should be deducted from the 2% leaving a total of 1% WPI for ADLs. In this regard the respondent worker concedes that: “A reduction of 1% is sought, having regard to the accepted impairment (with respect to the ADL assessment) of the Cervical Spine, resulting from an injury on the 22 June 2012’)”.
In respect of the deduction under s 323, a deduction can only be made if the pre-existing condition, abnormality or injury has, on the available evidence, contributed to the level of permanent impairment assessed. Here the MA made no deduction with the following reasoning;
“Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
No. The radiological investigations only demonstrate degenerative changes at the L5/S1 facet joints. There was no history of any previous low back condition. The current condition is due to discogenic pathology at L4/5 and therefore no significant pre-existing condition is identified.”When the MA addressed why his opinion differed from that of the IME qualified on behalf of the appellant, Dr Powell, who had made a one-tenth deduction, the MA pointed out:
“Specialist Orthopaedic Surgeon, Dr Richard Powell, in his report of 05/03/20 did not demonstrate radiculopathy features and placed Mrs Plust in DRE Lumbar Category II. He also had a deduction of one tenth for pre-existing degenerative condition. With the greatest of respect, I am at variance to this. Firstly, there was no history (at all) of any previous low back condition. Also, if we study the available radiological investigations, the only place where degenerative changes have been reported are the facet joints at the L5/S1 articulation. It has already been identified that Mrs Plust’s injury is associated with the segment immediately above this which is L4/5 with a disc protrusion.”
The MA provided the following additional reasons when dealing with the question of a deductible proportion:
“As advised, there is no indication of any significant pre-existing condition which would necessitate a deduction. Attention is drawn to the major pathology being at L4/5 and the only reported degenerative change at the fact joints of L5/S1.”
However the MA has failed to have regard to a MRI scan dated 16/09/13, some three days after the work-related injury, which was reported to show ‘Narrowing of the L4/L5 disc space with desiccation of the disc’. This is indicative of a pre-existing disorder of the L4/5 disc. The MA has not referred to this imaging study evidence when concluding that there was no imaging evidence of a pre-existing asymptomatic disorder at the L4/5 level. The available evidence therefore supports the making of a 1/10 deduction for this pre-existing condition relating to the same level as the disc protrusion causing the diagnosed radiculopathy.
Based on the above findings with a 1% allocation for ADLs in relation to the lumbar spine the final assessment would be 10% +1% = 11% and a deduction of 1/10 = 10% WPI as a result of the injury on 13 September 2013.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 May 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 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) | |
| Lumbar spine | 13/09/13 | Chap 4 P 24 | P 384 T 15-3 | 11 | 1/10 | 10 | |
| Total % WPI (the Combined Table values of all sub-totals) | 10 | ||||||
Jane Peacock
Member
Dr Brian Noll
Medical Assessor
Dr Phillipa Harvey-Sutton
Medical Assessor
21 September 2021
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