Stefanutti Construction Pty Ltd v MacDonald
[2023] NSWPICMP 460
•19 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Stefanutti Construction Pty Ltd v MacDonald [2023] NSWPICMP 460 |
| APPELLANT: | Stefanutti Construction Pty Limited |
| RESPONDENT: | Chris MacDonald |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 19 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor’s conclusion that the respondent did not have a pre-existing lumbar spine condition was contrary to the evidence; Appeal Panel held that a radiological investigation done shortly after respondent suffered injury and findings surgeon made at surgery demonstrated respondent had pre-existing lumbar degeneration at the time he suffered injury; Appeal Panel further held that a proportion of the respondent’s permanent impairment from his injury was due to that pre-existing degeneration such that a deduction under section 323(1) was required; Held – Medical Assessment Certificate revoked. . |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 June 2023 Stefanutti Construction Pty Limited, 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 30 May 2023.
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.
Rule 128 of the Personal Injury Commission Rules 2021 (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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
At some time in October 2019 Chris MacDonald, the respondent, commenced employment as a heavy vehicle operator with the appellant. On 19 November 2019 he was driving a Volvo FL7 water tanker that was loaded with 13,000 litres of water. The respondent was negotiating a wide bend in the road when the front right tyre of his vehicle burst which in turn resulted in his losing control of the vehicle and the vehicle turning on its side. He suffered injuries to his right shoulder, lower back and left knee.
Dr Alan Hopcroft examined the respondent on 17 September 2021, at the request of the respondent’s solicitors, and advised in a report he issued on that date, that he assessed the respondent had 13% whole person impairment (WPI) from the injury to his lumbar spine and right shoulder. Dr Hopcroft further advised the respondent’s solicitors that his assessment comprised 5% WPI relating to the respondent’s lumbar spine, 7% WPI relating to the respondent’s right shoulder and 2% WPI relating to the respondent’s ongoing restrictions in activities of daily living (ADLs). Dr Hopcroft advised that those impairments combined to 12% WPI in accordance with the Combined Values Chart. Dr Hopcroft advised that with respect to his assessment of the respondent’s permanent impairment relating to his lumbar spine, the respondent’s impairment correlated with the criteria for Diagnosis Related Estimate (DRE) Lumbar Category II for which there was a base assessment of 5% WPI.
Dr Hopcroft advised that one-tenth of that impairment “should be subtracted due to pre-existing changes”, but after that was done and the results rounded up the respondent still had 5% WPI relating to his lumbar spine.Relying on that report of Dr Hopcroft, the respondent claimed compensation from the appellant’s insurer pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 13% WPI. The insurer thereupon organised for the respondent to be assessed by
Dr Chris Harrington on 15 March 2022. In a report to the insurer dated 16 March 2022
Dr Harrington advised that in the incident in which the respondent was involved on
19 November 2019 the respondent either aggravated underlying changes in his lumbar spine or sustained a soft tissue injury. Dr Harrington noted that the respondent complained of persistent lower lumbar spine symptoms that the respondent attributed to the incident on
19 November 2019 but Dr Harrington stated that he did not believe the respondent’s employment with the appellant was a “substantial contributing factor” to his “current symptoms”. Dr Harrington advised that it was his opinion that the respondent’s work related back injury had resolved and that the respondent’s current symptoms were due to non-work related factors, specifically pre-existing spinal pathology. Dr Harrington also advised that his diagnosis relating to the respondent’s right shoulder “is probably a combination of mild tendinopathy and early AC joint arthritis”. He advised that the respondent suffered an aggravation injury relating to his right shoulder in the incident of 19 November 2019. He advised that “on the balance of probabilities” the respondent’s employment with the appellant “is a substantial contributing factor to the current ongoing shoulder symptoms”.In a supplementary report dated 15 August 2022, that Dr Harrington prepared without further examination of the respondent, Dr Harrington advised the respondent’s solicitors that he assessed the respondent had 5% WPI relating to his lumbar spine and 7% WPI relating to his right shoulder. Dr Harrington advised that his opinion was “that these impairments are wholly related to constitutional changes and not his work injury”.
By letter dated 7 September 2022 the insurer notified the respondent under s 78 of the
1998 Act that it disputed his claim for compensation. It advised him in that notice that its reason for disputing his entitlement to compensation for permanent impairment from his injury is that his permanent impairment did not exceed 10%. It indicated to him that it relied upon Dr Harrington’s assessment, rather than Dr Hopcroft’s assessment.The respondent’s solicitors then sought a review of that decision of the insurer, but on
20 March 2023 the insurer again wrote to the respondent, care of his solicitors, advising that it maintained its decision of 9 September 2022 denying his claim for compensation.The respondent then initiated proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 11 April 2023. A delegate of the President of the Commission referred the medical dispute between the parties relating to the degree of the respondent’s permanent impairment resulting from his injury to the Medical Assessor to assess.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because neither party challenged the examination the Medical Assessor conducted on the respondent or the Medical Assessor’s findings from that examination. The issues raised in the appeal relate firstly, to whether the Medical Assessor ought to have found that a proportion of the appellant’s permanent impairment relating to his lumbar spine that was due to a pre-existing condition and made a deduction under s 323(1) of the 1998 Act for that and secondly, to the Medical Assessor’s rating of the impact of the respondent’s lumbar spine injury on his ADLs. These issues can be dealt with by the Appeal Panel based on the material before the Appeal Panel. There is simply no need for the Appeal Panel to re-examine the respondent as no further useful clinical data relating to the issues raised in the appeal would be obtained by doing so.
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
As just mentioned, the issues the respondent raised in the Appeal against the MAC relate to the application of s 323(1) of the 1998 Act and the rating the Medical Assessor made of the impact of the respondent’s lumbar spine injury on his ADLs. Relevant to those issues, the history the Medical Assessor obtained included that the appellant reported not having any previous work related injuries or major motor vehicle accidents that resulted in injury and had no right shoulder problems or lower back problems prior to suffering injury on
19 November 2019. The Medical Assessor also obtained a history that the respondent has constant pain in his right shoulder that he rates at 8 on a scale of 0-10 and which is getting worse over time and that the respondent has constant pain in his lower back that he rates at 9 out of 10.The Medical Assessor recorded in the MAC that the respondent is able to shower and dress but needs help with his socks and shoes. The Medical Assessor recorded that the respondent is unable to help his partner with domestic duties and is unable to mow the lawn.
The Medical Assessor set out within part 6 of the MAC relevant details from the reports of the various investigations the respondent had done subsequent to his injury. These included a CT scan of the respondent’s lumbar sacral spine done on 1 July 2020, a MRI of the respondent’s lumbar spine done on 14 July 2020 and a MRI done on 4 March 2022. The Medical Assessor noted that the CT scan revealed mild lumbar discovertebral spondylotic changes, multi-level facet joint arthrosis that was most severe at L4/5 and L5/S1, and mild L5/S1 right foraminal stenosis. The Medical Assessor recorded that the MRI revealed no significant central canal narrowing but revealed contact of the exiting L5 nerve root by a broad based posterior disc protrusion. The Medical Assessor noted that the MRI done on
4 March 2022 revealed bilateral lower lumbar facet arthropathy that was most severe at L4/5, but no evidence of canal stenosis or compromise of existing or traversing nerve roots.The Medical Assessor provided within part 7 of the MAC his diagnoses of the respondent’s injury, which was right shoulder strain and right shoulder impingement syndrome and lumbar spine strain.
With respect to the respondent’s permanent impairment relating to his lumbar spine the Medical Assessor correlated the respondent’s signs and symptoms with the criteria for DRE Lumbar Category II. No issue is raised with respect to that in the appeal and, based on the findings the Medical Assessor made from his examination of the respondent, which is also not challenged, and the history the Medical Assessor obtained, that assessment is correct in any event. The Medical Assessor indicated that he referred to cl 4.35 of the Guidelines to assess whether any additional rating should be made to the baseline of 5% WPI for DRE Lumbar Category II. The Medical Assessor said that he considered a 2% WPI loading was reasonable because the respondent is capable of self care but is unable to perform home domestic duties and gardening since his injury.
The Medical Assessor said that “there was no evidence of a pre-existing condition and therefore no deductions applied”.
Thus, the Medical Assessor assessed that the respondent’s WPI relating to his lumbar spine was 7% and his WPI relating to his right upper extremity was 4% WPI and the Medical Assessor noted that those combined to 11% WPI. He consequently certified in the MAC that the respondent’s WPI from his injury was 11%.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor’s conclusion that there was no evidence of a pre-existing lumbar spine condition was inconsistent with the medical evidence before the Medical Assessor. The appellant referred to the CT scan of the respondent’s lumbar spine done on 1 July 2020 and the MRI of the respondent’s lumbar sacral spine done on 4 March 2022. The appellant submitted those radiological investigations provided evidence that the respondent had a pre-existing or underlying condition in his lumbar spine. The appellant noted that there was an entry in the general practitioner’s (GP) records that the respondent injured his back on 3 August 2016 when he slipped down some stairs and that the respondent complained to his GP of a flair up of lumbar sacral back pain on 5 March 2019. The appellant submitted that the evidence supports “a contention” that a previous injury or pre-existing condition contributes to the respondent’s current impairment and the Medical Assessor erred consequently by failing to make a deduction under s 323(1) of the 1998 Act.
The appellant submitted that the Medical Assessor did not clearly explain whether it was the respondent’s lumbar spine injury or his shoulder injury that caused interference with his ability to carry out his ADLs. The appellant submitted that the Medical Assessor “incorrectly applied an impairment assessment with respect to ADL”.
In reply, the respondent submitted that s 323(1) of the 1998 Act does not provide for “an automatic deduction” and that as to whether there is a deduction “is a discretionary task based on the assessment of the assessor”. The respondent submitted that there is insufficient evidence of any degenerative pre-existing condition that would warrant a deduction to be made under s 323(1) of the 1998 Act. The respondent submitted that the Medical Assessor clearly contemplated whether there was a pre-existing condition and whether a deduction should be made under s 323 and that the Medical Assessor considered the matter based on his observation and clinical assessment.
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.
The Appeal Panel considers there is no merit in the appellant’s submissions relating to the Medical Assessor including a rating of 2% WPI for the effect the respondent’s injury to his lumbar spine has on his ADLs. The history the Medical Assessor obtained from the respondent makes it clear that the respondent currently suffers from significant pain from both the injury to his shoulder and the injury to his lumbar spine. The Medical Assessor also recorded in the MAC that the respondent now has difficulty with some elements of his self care, in that he needs assistance from his partner with his socks and shoes, and that the respondent is unable to undertake domestic duties and mow his lawn. It is apparent from the MAC, when read as a whole, that these impediments the respondent has are due to both the injury he suffered to his shoulder and the injury he suffered to his lumbar spine on
19 November 2019. Because it is a consequence of the injury he suffered to his lumbar spine on 19 November 2019 the Medical Assessor was correct, in the Appeal Panel’s view, to increase the base impairment rating allowed by DRE Lumbar Category II by 2% in accordance with cls 4.33-4.36 of the Guidelines. There is nothing contained within those clauses that stipulates that the impact on a worker’s activities of daily living must exclusively be the result of an injury to the spine in order that the base rate impairment allowed by a DRE Category can be increased. So long as an injury to the spine contributes to an impediment a worker has with respect to ADLs then the base rate impairment allowed by the relevant DRE Category can be increased. As indicated, that is the case here in that the respondent’s injury to his lumbar spine has impeded his ADLs and, accordingly, the Medical Assessor was right to increase the base 5% WPI allowed by DRE Lumbar Category II by 2% WPI.The Appeal Panel however considers there is merit in the appellant’s submissions relating to the Medical Assessor not making a deduction under s 323(1) of the 1998 Act for a proportion of the respondent’s permanent impairment that was due to a pre-existing injury. The radiological investigations of the respondent’s lumbar spine done on 1 July 2020 and
14 July 2020, which occurred within approximately eight months of the respondent’s injury, reveal multi-level degenerative changes in the respondent’s lumbar spine. Those changes would have been present in the respondent’s lumbar spine at the time he suffered injury. Also, they would have been present in the respondent’s lumbar spine, at virtually the same degree as that revealed in the investigations, when he fell down some stairs in August 2016. The time between the occurrence of that event and the investigations being done was too small for the degeneration to have advanced significantly.The respondent’s GP’s records indicate that the respondent’s fall down the stairs was likely to have occurred around 3 August 2016 and that this resulted in the respondent suffering back pain. That pain was likely due to the respondent’s pre-existing degeneration in his back being aggravated by the incident. The GP’s records also reveal that by 8 August 2016 the respondent had recovered from that aggravation. The GP’s records further revealed the respondent experienced a further aggravation around 5 March 2019 but that also seems to have been short lived given that when he next consulted his GP he was not complaining of back pain.
The situation is then that when the respondent suffered injury on 19 November 2019 his pre-existing degeneration in his lumbar spine was asymptomatic. However, the incident that he suffered on 19 November 2019 resulted in the degenerative changes in his lumbar spine again becoming symptomatic. His symptoms have persisted to date and have resulted in his having a permanent impairment. His permanent impairment is consequently a product of both the pre-existing degeneration he has in his lumbar spine and the incident on
19 November 2019 which precipitated enduring symptoms for the respondent. The respondent’s pre-existing degeneration in his lumbar spine consequently makes a difference to the degree of the respondent’s permanent impairment since without the degeneration in his lumbar spine his impairment would not be as great.Given that, the Medical Assessor was wrong not to conclude that a proportion of the respondent’s permanent impairment is due to the pre-existing condition in the respondent’s lumbar spine.[1] Consequently, the MAC contains a demonstrable error.
[1] See Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45].
The Appeal Panel must correct that error. In the Appeal Panel’s view, it is too difficult to determine precisely the extent to which the respondent’s pre-existing degeneration in his lumbar spine contributes to his permanent impairment and, in accordance with s 323(2) of the 1998 Act, the Appeal Panel assumes that the proportion of the respondent’s permanent impairment that is due to his pre-existing degeneration is one tenth, which is not at odds with the evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 May 2023 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: | W2700 |
Applicant: | Chris MacDonald |
Respondent: | Stefanutti Construction Pty Limited |
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 Todd Gothelf 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) |
| Lumbar spine | 19/11/2019 | Chapter 4 | 15-3 | 7% | 1/10 | 6% |
| Right upper extremity (shoulder) | 19/11/2019 | Chapter 2 | 16-40,43,46 4% | 4% | - | 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 10% | |||||
0
2
0