Stuart Dickson Produce Pty Ltd v Nemra
[2021] NSWPICMP 189
•12 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Stuart Dickson Produce Pty Ltd v Nemra [2021] NSWPICMP 189 |
| APPELLANT: | Stuart Dickson Produce Pty Ltd |
| RESPONDENT: | Mohamed Nemra |
| APPEAL PANEL: | Member Catherine McDonald Dr John Ashwell Dr Gregory McGroder |
| DATE OF DECISION: | 12 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker suffered a penetrating injury to his thigh resulting in dissection of the femoral artery; parties agreed Medical Assessor (MA) erred in assessment of femoral nerve dysfunction; MA made an allowance of 2% under Guidelines paragraph 1.32 for the effects of that treatment; employer argued that aspirin was analgesia taken for pain relief; worker was prescribed low dose aspirin to reduce the risk of clotting; Held - allowance was appropriate; 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 21 July 2021 Stuart Dickson Produce Pty Limited (Produce) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 June 2021.
The appellant relies on the ground of appeal in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) - that the MAC contains a demonstrable error.
The delegate was 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
Mr Nemra was employed by Produce as a forklift driver at its premises at Flemington Markets. On 19 June 2018 he was driving a forklift. When he tried to steer around a truck and applied the brakes in the usual way, the forklift skidded on a wet floor, causing his left leg to hit the truck. Mr Nemra suffered a penetrating injury to his left thigh, resulting in a dissection of the femoral artery. He was admitted to Concord Hospital and underwent wound exploration and debridement, superficial femoral artery (SFA) thrombectomy and SFA grafting.
The Medical Assessor assessed 25% lower extremity impairment (LEI) due to claudication assessed as peripheral vascular disease and 4% due to sensory loss of the saphenous nerve, making a total of 28% LEI which converted to 11% WPI. He assessed 4% WPI for scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI) and 2% for the effects of treatment, making a total of 17% WPI.
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 there is sufficient information in the file to determine the appeal.
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.
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.
In summary and in submissions prepared by its solicitor Ms Blackman, Produce submitted that the Medical Assessor made an error in the calculation of loss resulting from sensory dysfunction of the saphenous nerve. The maximum LEI for dysfunction of the femoral nerve is 2%. The Medical Assessor assessed a deficit of 70% so that the appropriate assessment was 1% LEI. When combined with 25% LEI for peripheral vascular disease, the result is 26% LEI or 10% WPI.
Produce did not appeal in respect of the assessment under the TEMSKI. It said that the Medical Assessor failed to provide reasons for the assessment of 2% for the effects of treatment under paragraph 1.32 of the Guidelines. Produce noted that paragraph 1.32 did not apply to the use of analgesia or anti-inflammatory medication for pain relief and said that Mr Nemra was not entitled to an assessment for the effects of treatment because aspirin is an analgesic.
In submissions prepared for him by his solicitor, Ms Mackovic, Mr Nemra agreed that the Medical Assessor has erred in respect of the assessment of impairment of the femoral nerve. He argued that aspirin was prescribed from the time of his hospitalisation because it is antiplatelet. He noted that the independent medical examiners qualified for him and for Produce accepted that it was reasonable and necessary that he take aspirin for the remainder of his life to prevent clotting.
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[1] 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.
[1] [2006] NSWCA 284.
Assessment of femoral nerve dysfunction
Because the parties agree that the assessment made by the Medical Assessor is in error, our findings can be shortly stated.
Peripheral nerve injuries are assessed under paragraph 17.2l of AMA 5, using the methodology in Table 16-10, which applies to the upper extremity. That Table requires the assessor to grade the severity of the sensory deficit. The Medical Assessor assessed Mr Nemra at grade 2 which provides a range of 61-80%. He assessed 70%. Table 17-37 of AMA 5 provides that the maximum impairment for sensory loss of the femoral nerve (of which the saphenous nerve is part) is 2% LEI. 70% of 2 is 1.4% which is rounded down to 1% LEI.
When that assessment is combined with 25% for vascular disease, the LEI is 26% or 10% LEI.
There is no appeal with respect to the assessment of 4% under the TEMSKI.
Allowance for the effects of treatment
The Medical Assessor did not set out his reasons for this assessment and this part of the appeal may have been avoided if he had explained why an allowance for the effects of treatment was warranted. He may also have considered that little explanation was warranted, based on the medical evidence in the file.
The notes from Concord Hospital show that Mr Nemra was started on 100 mg of aspirin daily immediately following the surgery with a note that it be continued indefinitely. The notes show that Mr Nemra was prescribed a number of drugs, including morphine – for pain relief whilst in hospital and that he was discharged with Pregbaline (Lyrica), Tramadol and Paracetamol.
On 22 October 2018, Dr Kerdic recommended regular Panadol and Lyrica with breakthrough Tramadol for pain relief.
Mr Nemra’s solicitors qualified Dr J Niesche, vascular surgeon, who reported on 18 September 2019. He noted that angiography before surgery was undertaken showed complete occlusion (blockage) of the femoral artery. Dr Niesche noted that Mr Nemra was told on discharge to take aspirin for an indefinite period. On review by Dr Kerdic, ultrasound revealed a patent graft and no evidence of stenosis (narrowing). Dr Niesche observed that Mr Nemra had claudication (decreased blood flow, causing pain in his leg). He made an allowance of 2% for the effects of treatment and, like the Medical Assessor, did not explain why.
Produce qualified Associate Professor P Myers who reported on 24 January 2020. He recorded that Mr Nemra was:
“prescribed painkilling tablets, neuropathic medication and was placed on low-dose aspirin which he was told he would need to take for the rest of his life.”
Mr Nemra told A/Prof Myers that he was taking Nurofen, Lyrica as necessary and low-dose aspirin daily. After setting out the results of his examination and his opinion that Mr Nemra had not reached maximum medical improvement, A/Prof Myers said:
“He does need to be on an anti-platelet agent, effectively for the rest of his life, having a bypass graft in situ. Low-dose aspirin is currently one of those recommendations -
I concur with him taking that.”The low dose aspirin which Mr Nemra takes is not for the purpose of pain relief. He takes other medication for that purpose. The purpose of the aspirin is to act as an anti-platelet agent and to reduce the risk of clotting which could further block or narrow the artery and impact blood flow. If Mr Nemra did not take aspirin, the risk of clotting could result in greater permanent impairment.
Paragraph 1.32 of the Guidelines states:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
The use of aspirin to maintain patency of Mr Nemra’s femoral artery fulfils the criteria of the paragraph. The last sentence of paragraph 1.32 contemplates the use of aspirin – which may also be used as an analgesic – for this purpose. The serious consequences of not taking aspirin indicate that the Medical Assessor’s assessment of 2% was appropriate.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 June 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 Tommasino Mastroianni 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) |
| Left lower extremity | 19 June 2018 | Chapter 3, pages 13-23 | Chapter 17, pages 523 to 564 | 10% | Nil | 10% |
| Scarring (TEMSKI) | 19 June 2018 | Chapter 14, pages 73-74 | 4% | Nil | 4% | |
| Effects of treatment | 19 June 2018 | Paragraph 1.32, page 6 | 2% | Nil | 2% | |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
Catherine McDonald
Member
Dr John Ashwell
Medical Assessor
Dr Gregory McGroder
Medical Assessor
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