Swan v Disability Services Australia Ltd
[2023] NSWPICMP 504
•9 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Swan v Disability Services Australia Ltd [2023] NSWPICMP 504 |
| APPELLANT: | Kim Lee-Ann Swan |
| RESPONDENT: | Disability Services Australia Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | John Brian Stephenson |
DATE OF DECISION: | 9 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Medical Assessor assessed 0% for lumbar spine and found left lower extremity (hip) had not reached maximum medical improvement (MMI) on the basis that the sciatic nerve needed further investigation and treatment; worker appealed; Appeal Panel found that it was open to the Medical Assessor, in the exercise of his clinical judgment, to have assessed the lower extremity as not having reached MMI but this also meant the lumbar spine should have been assessed as not MMI as opposed to assessing 0% WPI for the lumbar spine; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 May 2023 Ms Kim Lee-Ann Swan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 April 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·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 (the 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).
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.
The appellant sought re-examination by a medical assessor member of the Appeal Panel.
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 the Appeal Panel could not, for the reasons set out below, find error. Absent a finding of error, the Appeal Panel has no power to require a worker to undergo 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 Medical Assessor 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 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.
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 by the Personal Injury Commission to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 23 March 2020
· Body parts/systems referred: Cervical spine
Lumbar spine
Left lower extremity (left hip)
Left upper extremity (left shoulder)
· Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in WorkCover Guides
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality
Sub-total/s % WPI (after any deductions in column 6)
Cervical spine
23/03/20
Chapter 4
Page 24-29
Chapter 15
Page 392
Table 15-5
5%
nil
5%
Lumbar spine
23/03/20
Chapter 4
Page 24-29
Chapter 15
Page 384
Table 15-3
0%
not applicable
0%
Left lower extremity
(left hip)
23/03/20
In my opinion her left lower extremity symptoms are arising from her sciatic nerve lesion and have not reached maximal medical improvement.
Left upper extremity
(left shoulder)
23/03/20
Chapter 2
Pages 10-12
Chapter 16
Pages 433 to 521
4%
nil
4%
Total % WPI (the Combined Table values of all sub-totals)
9%
The worker appealed.
There was no complaint on appeal about the assessments in respect of the cervical spine and left upper extremity (left shoulder).
The complaint on appeal was in respect of the assessment by the Medical Assessor that the appellant had not reached Maximum Medical Improvement (MMI) in respect of the injury to her left lower extremity (left hip) and that an assessment should have been made of the lumbar spine at Diagnostic Based Estimates II (DREII) which was assessed at 0% whole person impairment (WPI). The Medical Assessor found as follows:
“In my opinion her left lower extremity symptoms are arising from her sciatic nerve lesion and have not reached maximal medical improvement.”
In summary, the appellant submitted that in so finding, the Medical Assessor made a demonstrable error as follows:
· By not assessing the lumbar spine when he should have assessed DREII.
· By assessing the sciatic nerve when he did not have expertise to do so.
· By not giving adequate reasons for not assessing “not MMI” for the left lower extremity.
In summary, the employer Disability Services Australia Ltd (the respondent) submitted on appeal that the Medical Assessor did not make a demonstrable error and the MAC should be confirmed.
The role of the Medical Assessor is to make an independent assessment on the day of examination. He is not bound to follow the findings of any other expert whose reports are in evidence. He must reach his or her own assessment using his or her own clinical judgment and expertise having due regard to his findings on clinical examination on the day of examination, the other evidence before him including radiological evidence and the other medical evidence including other medical opinions that are in evidence. An assessment must be made in accordance with the criteria in the Workcover Guides.
The Workcover Guides provide as follows:
(a) Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
(b) If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.
Paragraph 1.34 deals with the refusal of treatment which is not relevant here.
The Medical Assessor took a detailed history broadly consistent with the other evidence before him, he had regard to the radiological evidence, he conducted a thorough physical examination, came to his diagnosis, made his assessment and briefly explained where his opinion differed from the other experts.
The history taken by the Medical Assessor detailed the appellant’s present symptoms which noted the main concern to be the discomfort in the left buttock area extending down the left leg as follows:
“Present symptoms:
Ms Swan’s main concern is the discomfort in her left buttock area extending down her left leg and into the lateral four toes of her left foot. She does say that there has been some improvement with the passage of time, whereas early on symptoms would go as high as 10/10 and they now range between 4-8/10. The pins and needles and numbness in her left foot used to be constantly present but they are not constant at this stage, but do occur on a daily basis.
Her symptoms are aggravated particularly by sitting on a hard surface and it was noted today that when she sits she tends to take her weight on her right buttock cheek, keeping her left cheek slightly elevated.
Ms Swan says that her symptoms are aggravated by doing exercise physiology and by standing for long, and if she has been sitting for any length of time she has difficulty getting up. Mowing the lawn aggravates her symptoms but she has been instructed to ‘do more’. The only way she can get some relief is by getting the weight off her left buttock region.
As mentioned Ms Swan is complaining of a lot of headaches which seem to arise from the left side of her neck into her trapezius area and into the occiput, and more recently symptoms have been extending to the right of her neck. Symptoms are present on a daily basis, ranging between 4-8/10 and once again she feels symptoms have improved to a certain extent. She cannot think of any aggravating factors and ice packs do tend to help.
As far as her low back is concerned, she does not have any particular discomfort in her back at the present time but only in the left buttock area as noted above.
As far as her left hip is concerned, once again these symptoms are confined to the buttock area and not in relation to her groin region at all.”
The Medical Assessor conducted a thorough physical examination the relevant findings in respect of the left lower extremity and lumbar spine were as follows:
“Ms Swan is a shorter than average adult female with a moderate increase in her body mass index. She undresses and dresses without much difficulty and walks with a very slight limp on the left side. She is able to walk on heels and toes and back movements are restricted because of discomfort in her left buttock region.
Straight leg raising on the right is present to 80°, but she was reluctant to elevate beyond 60° on the left because of the discomfort in the buttock and leg, and flexing the knee at this stage allowed further hip flexion to occur. Reflexes are present and equal, and importantly Ms Swan has hypoaesthesia to pinprick in the S1 distribution of her left foot over the lateral border of the foot and sole. There is also weakness of eversion on the left side.
In addition the circumference of her left calf is 1½cm less than the right side.
There was no discomfort to palpation in the lower lumbar region but she does complain of localised tenderness to palpation in the left buttock area over the sciatic nerve.
Ms Swan showed a satisfactory range of hip movements carried out slowly and carefully, but avoiding flexion because of the discomfort in the buttock area.”
The Medical Assessor reviewed the special investigation in respect of the lumbar apsine and hips as follows: (emphasis in original)
“A CT scan of her hips suggested some early degenerative change in the left hip and an MRI of her pelvis and gluteal region in February 2021 suggested tendinopathy of gluteus minimus.
An MRI of her lumbar spine on 3 March 2021 showed facet joint degeneration but no obvious neurological deficit although the L4/5 facet joint degeneration on the left side was felt to be ‘in close proximity to the left S1 nerve’.”
The Medical Assessor summarised the injury and his diagnosis as follows:
“Summary of injuries and diagnoses:
In my opinion Ms Swan’s main injury occurred when she fell heavily on her left buttock region and sustained localised damage to her sciatic nerve, as evidenced by the localised tenderness in the left buttock region, as well as the evidence of peripheral nerve involvement mainly involving the S1 nerve root. In my opinion this is unlikely to be arising from her lumbar spine as she has no tenderness in the low back and no symptoms in this area, and when she sits she takes her weight on her right buttock, trying to avoid pressure on her left buttock region.
She also would seem to have sustained damage to her left shoulder and has had surgery for this and does have some residual restriction of movement following a rotator cuff repair.
She also has evidence of a mechanical problem in the cervical spine without evidence of any neurological involvement.
In my opinion there is no residual impairment in relation to her lumbar spine at this stage.
· consistency of presentation
Ms Swan’s presentation was entirely consistent.”
When evaluating permanent impairment the Medical Assessor considered that not all body parts had reached MMI as follows:
“(a) Have all body parts/systems stabilized/reached maximum medical improvement? No
(b) If not, please list those injuries not yet stable/at maximum medical improvement: Left sciatic nerve lesion
(c) If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? In my opinion maximum improvement will have been reached when a firm diagnosis has been achieved and all possible treatment completed.”
When giving reasons for his assessment the Medical Assessor stated as follows: (emphasis in the original)
“My opinion and assessment of whole person impairment
In my opinion Ms Swan’s impairment in relation to her cervical spine and left shoulder region can be assessed as these regions have reached maximal medical improvement.
In my opinion Ms Swan falls into DRE Category II of her cervical spine(1) (see 10b), with 5% WPI. I have not added any additional impairment for activities of daily living, as these are affected mainly by what in my opinion is a sciatic nerve lesion on the left side.
In my opinion Ms Swan has a 6% upper extremity impairment due to the restricted range of left shoulder movement(2), which equates with 4% WPI.
In my opinion assessment of her left lower extremity cannot be assessed at the present time as a firm diagnosis has not been achieved.
In my opinion Ms Swan needs to see a neurologist with a specific request that a sciatic nerve lesion on the left side is being considered with evidence of S1 involvement in the left lower extremity. In my opinion this needs to be a consultation and not simply nerve conduction studies.
An explanation of my calculations (if applicable)
AMA Guides to the Evaluation of Permanent Impairment, 5th Edition:
(1)Page 392, table 15-5. Clinical history compatible with a specific injury; asymmetric
(2)loss of range of motion.
(2) Pages 476 to 479, Figures 16-40 to 16-46
Worksheet /actual calculations attached? No.”
The Medical Assessor’s comments on the other evidence before him were as follows:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
I note the reports of Dr J G Bodel of 8 December 2021 placing Ms Swan in DRE Category II of her cervical spine, and I have agreed with this suggestion, and DRE Category II of the lumbar spine, and I have not agreed with this suggestion. He has suggested impairment for the left shoulder and I am in agreement with this, but in my opinion there is no residual impairment in relation to the left hip.
I note that Dr Bodel has suggested a total of 19% WPI.
There are reports of Dr A Cadden, orthopaedic surgeon of 3 May 2022 noting the restriction of left shoulder and left hip movement, and suggesting a full range of movement of the cervical spine with no residual impairment, but finding DRE Category II for the lumbar spine, and 5% WPI for the left shoulder and 2% WPI for the left hip, giving a total of 14% WPI. As noted my findings differ from those suggested above.”
The Appeal Panel considers that it was within the Medical Assessor’s clinical judgment to conclude, having proper regard to the history taken and the other medical evidence before him, that the appellant had not reached MMI in respect of the left hip. The appeal concerns also the Medical Assessor’s conclusion of a nil impairment in respect of the lumbar spine. The Appeal Panel considers that an assessment of 0% WPI for the lumbar spine is at odds with the logic by which he has concluded that there can be no assessment of the left lower extremity until the appellant sese “a neurologist with a specific request that a sciatic nerve lesion on the left side is being considered with evidence of S1 involvement in the left lower extremity. In my opinion this needs to be a consultation and not simply nerve conduction studies” (emphasis in original). He also made no allowance for restrictions on Activities of Daily Living (ADLS) for the cervical spine stating: “I have not added any additional impairment for activities of daily living, as these are affected mainly by what in my opinion is a sciatic nerve lesion on the left side”. He also stated in his MAC that there is no impairment of the lumbar spine “at this stage”. It is inconsistent medically to conclude that the left lower extremity warrants further investigation before it can be assessed because of possible involvement of the S1 nerve root but conclude that the lumbar spine can be assessed at 0%. The further investigation and treatment recommended by the Medical Assessor can potentially impact the lumbar spine assessment. The Appeal Panel therefore finds that the conclusion that the left lower extremity was not MMI was open to him but this implicates the assessment of the lumbar spine and accordingly the Panel will revoke the MAC in respect of the lumbar spine assessment of 0% and replace it with a finding of not MMI consistent with the Medical Assessor’s reasoning for the left lower extremity. This also means that the overall WPI from the referred injury cannot be totalled and should be marked not MMI because all of the injured body parts have not been able to be assessed at this stage.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 April 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1146/23 |
Applicant: | Kim Lee-Ann Swan |
Respondent: | Disability Services Australia 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 Medical Assessor Dr Roger Pillemer 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 AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 23/03/20 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 5% | nil | 5% |
| Lumbar spine | 23/03/20 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | NOT MMI | NOT MMI | |
| Left lower extremity (left hip) | 23/03/20 | In my opinion her left lower extremity symptoms are arising from her sciatic nerve lesion and have not reached maximal medical improvement. | ||||
| Left upper extremity (left shoulder) | 23/03/20 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 4% | nil | 4% |
| Total % WPI (the Combined Table values of all sub-totals) | NOT MMI | |||||
1
2
0