Temora Shire Council v Alchin
[2023] NSWPICMP 599
•21 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Temora Shire Council v Alchin [2023] NSWPICMP 599 |
| APPELLANT: | Temora Shire Council |
| RESPONDENT: | Heath Charles Alchin |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | Peter Heathcote |
DATE OF DECISION: DATE AMENDED: | 21 November 2023 23 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by finding the respondent had cauda equina syndrome and assessing respondent had permanent impairment of reproductive system based on that finding; Appeal Panel found that the MA erred by finding respondent had cauda equina syndrome because the requirements of paragraph 4.22 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 had not been met; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
Heath Charles Alchin, the respondent suffered an injury to his lumbar spine on 9 April 2013 while working for the Temora Shire Council, the appellant.
The respondent’s injury required him to undergo several surgeries. These consisted of a laminectomy that neurosurgeon Dr Malcolm Pell performed at the L4/5 on 4 October 2013, which Dr Pell revised on 24 June 2014 and during that procedure also performed a discectomy at L5/S1. The next procedure was done on 7 November 2018 by neurosurgeon Dr Mark Winder, being a discectomy at the L4/5. On 21 May 2019 Dr Mark Winder carried out a circumferential fusion anteriorly from L4 to S1 and a circumferential fusion posteriorly at the same levels on 28 May 2019.
On 7 July 2021, the respondent claimed compensation from the appellant’s insurer under
s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 48% whole person impairment (WPI) that he said had resulted from his injury. He relied on reports prepared by orthopaedic surgeon Dr James Bodel and urological surgeon Dr Edward Korbel. Relevant to this matter is the WPI the respondent said he had from his injury included an impairment for sexual dysfunction.The insurer responded to his claim by letter dated 21 February 2022, in which it notified the respondent, in accordance to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that it disputed the respondent was entitled to compensation under s 66 of the 1987 Act for 48% WPI. The reason the insurer advised the respondent in that correspondence for disputing his claim was, in substance, that it did not agree that the respondent had any sexual dysfunction consequential upon his injury to his lumbar spine. It advised him if he did have a consequential sexual dysfunction from his injury it considered he did not have rateable permanent impairment from that.
On 15 May 2023 the respondent initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation. The matter was referred to Commission Member, Ms Jill Toohey, who with the consent of the parties issued the following determination on 20 June 2023:
“The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a) Date of injury: 9 April 2013
(b) Body systems/parts to be assessed by an orthopaedic specialist:
(i) Lumbar spine
(ii) Scarring (TEMSKI)
(c) Body systems/parts to be assessed by a urologist:
(i) Consequential urinary and sexual dysfunction
(d) Method of Assessment: Whole person impairment
(e) The documents to be referred to the Medical Assessor are:
(i) Application to Resolve a Dispute and attachments,
(ii) Reply and attachments.”
A delegate of the President of the Commission thereupon referred the matter relating to the WPI the respondent had with respect to his lumbar spine and scarring to Medical Assessor Tim Anderson to assess and referred the matter relating to the WPI the respondent had from his consequential urinary and sexual dysfunction to Medical Assessor John Garvey to assess.
On 11 August 2023 Medical Assessor Garvey issued a medical assessment certificate (MAC) in which he certified the respondent had 19% WPI, comprising 16% WPI relating to the urinary system, 0% WPI relating to the reproductive system and 3% WPI relating to the effects of treatment.
On 11 August 2023 Medical Assessor Anderson, acting as the Lead Assessor, issued a MAC in which he certified the respondent had 43% WPI comprising 29% WPI he assessed the respondent had relating to his lumbar spine, 1% WPI relating to his scarring and the 16% WPI that Medical Assessor Garvey assessed the respondent had relating to his urinary system and 3% WPI Medical Assessor Garvey assessed the respondent had relating to the effects of treatment.
On 8 September 2023 the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. Its appeal related to Medical Assessor Garvey’s assessment of the respondent’s permanent impairment with regarding the respondent’s consequential condition of sexual dysfunction, that is the WPI Medical Assessor Garvey assessed the respondent had due to the respondent’s reproductive system and the effects of treatment. The appellant took no issue with respect to the assessment Medical Assessor Garvey made of the respondent’s permanent impairment relating to the respondent’s urinary system or the assessment Medical Assessor Anderson made of the respondent’s permanent impairment relating to the respondent’s lumbar spine and scarring.
The appellant relied on the following grounds for appeal under s 327(3) of the 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).
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. Whilst the Appeal Panel found, for reasons explained below, the MAC did contain a demonstrable error, the Appeal Panel was of the view that it could correct that error based on the material before it.
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
Medical Assessor Garvey detailed in the MAC the several medical procedures the respondent had undergone for treatment of his injury. Medical Assessor Garvey noted that after the second procedure in 2014 the respondent said that his penis was “dead as a doornail”. Medical Assessor Garvey noted that urologist Dr Sowter treated the respondent with Cialis, Levitra and Viagra, but he was still not getting a satisfactory erection. Medical Assessor Garvey noted that Dr Sowter then gave a Caverject implant which resulted in the respondent being able to achieve an erection and ejaculate normally.
Medical Assessor Garvey found from his examination of the respondent that the respondent had no evidence of neuralgia of the anterior cutaneous nerves of the abdomen, groin or pelvis. Medical Assessor Garvey also found that the respondent had no pudendal neuralgia involving the glans or shaft of his penis on either side. Medical Assessor Garvey also found the respondent had no saddle anaesthesia. Medical Assessor Garvey found that the respondent had an absent right ankle reflex. Medical Assessor Garvey found that the respondent had 4cm of muscle wasting in the right thigh and 3cm of wasting in the right calf.
Medical Assessor Garvey noted that paragraph 4.22 of the Guidelines instructed “that a cauda equina syndrome may occasionally complicate lumbar spine surgery when a mass lesion will not be present in the spinal canal or on the radiological examination”.
Medical Assessor Garvey said that:
“There was no evidence of peripheral neuralgia of the border nerves nor of the pudendal nerves on either side. There was no evidence of saddle anaesthesia on today’s physical examination. He is able to achieve satisfactory erection within 15 minutes of Caverject injection with normal erection, ejaculation and sensation, so 0% WPI is assessed for sexual dysfunction, but the Worker merits 3% WPI for the ‘effects of treatment’ under Clause 1.32 on page 6 of the SIRA guides.”
Medical Assessor Garvey explained that he assessed the respondent had a “0% WPI… for erectile dysfunction but 3% WPI…for the effects of treatment with caverject without which [the respondent] would not be able to have a normal erection with ejaculation”.
Medical Assessor Garvey noted in the MAC that urologist Dr Robert Wines had observed that the respondent did not meet the criteria for “Urinary/Sexual Assessment”. Medical Assessor Garvey commented that “Dr Wines is technically correct”. Medical Assessor Garvey said that “there is no impairment assessable for neurological evidence for sexual impairment, so [the respondent] does not qualify for an assessment under AMA5 above 0% WPI because Sexual functioning is impossible of various degrees of erection and ejaculation”. Medical Assessor Garvey also noted that paragraph 4.22 of the Guidelines instructed “a cauda equina syndrome may occasionally complicate Lumbar Spine surgery when a mass lesion will not be present in the spinal canal or on the radiological examination”.
Medical Assessor Garvey noted that urologist Dr Korbel in a report dated 10 October 2022 assessed the respondent had “20% WPI of sexual function with half being deducted under Table 7-5, AMA5”. Medical Assessor Garvey made the following comment regarding that:
“This Claimant cannot be a Class 3 ‘no sexual function possible’ because he does experience erection and ejaculation with the help of Caverject and he said that this happens about 6 times per year. I do not understand the half deduction from 20% WPI under Table 7-5 of AMA5.”
Medical Assessor Garvey assessed the respondent had 0% WPI for sexual dysfunction and he assessed the respondent had 3% WPI for “the effects of treatment”, based on paragraph 1.32 of the Guidelines.
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 Medical Assessor Garvey wrongly formed the view that the Guidelines permitted him to find the respondent had cauda equina syndrome in the circumstances where no radiological examination confirmed that. The appellant submitted that radiological evidence was required by paragraph 4.22 of the Guidelines in order that a finding could be made the respondent suffered cauda equina syndrome.
Further, the appellant submitted that paragraph 4.22 of the Guidelines required the Medical Assessor to have found bilateral neurological signs in the respondent’s lower limbs and sacral region before he could find the respondent had cauda equina syndrome. The appellant submitted the Medical Assessor did not make that finding.
The appellant submitted that Medical Assessor Garvey erred by assessing the respondent had 3% WPI under paragraph 1.32 of the Guidelines in the circumstance where the respondent could not be assessed as having any permanent impairment for sexual dysfunction.
In reply, the respondent submitted that paragraph 4.22 of the Guidelines prescribes what is required to make a diagnosis of cauda equina syndrome. The respondent submitted that a Medical Assessor can make a diagnosis of cauda equina syndrome on the basis of “a clinical examination and possible other materials”. The respondent submitted that the conditions of cauda equina, spinal cord dysfunction and bilateral nerve dysfunction are expressed in the alternative in paragraphs 4.26 and 7.12 and that an assessment of a WPI can occur whenever one of those conditions is present.
The respondent noted that there was no radiological investigation of the respondent’s spine before Medical Assessor Garvey. The respondent submitted that Medical Assessor Garvey did not make a demonstrable error and complied with the Guidelines by concluding that he had an assessable impairment of 0% with respect to his impairment relating to sexual dysfunction.
The respondent submitted that paragraph 1.32 of the Guidelines is of general application and can be used when assessing any body system and that Medical Assessor Garvey did not make an error by applying it in this case.
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.
Paragraphs 4.22 and 4.26 of the Guidelines read as follows:
“4.22 The cauda equina syndrome is defined in Box 15.1 in Chapter 15 of AMA5 (p 383) as ‘manifested by bowel or bladder dysfunction, saddle anaesthesia and variable loss of motor and sensory function in the lower limbs’. For a cauda equina syndrome to be present there must be bilateral neurological signs in the lower limbs and sacral region. Additionally, there must be a radiological study which demonstrates a lesion in the spinal canal, causing a mass effect on the cauda equina with compression of multiple nerve roots. The mass effect would be expected to be large and significant. A lumbar MRI scan is the diagnostic investigation of choice for this condition. A cauda equina syndrome may occasionally complicate lumbar spine surgery when a mass lesion will not be present in the spinal canal on radiological examination.
…
4.26 Loss of sexual function should only be assessed where there is other objective evidence of spinal cord, cauda equina or bilateral nerve root dysfunction. The ratings are described in AMA5 Table 15-6 (pp 396–97). There is no additional impairment rating system for loss of sexual function in the absence of objective neurological findings. Loss of sexual function is not assessed as an ADL.”
Paragraph 7.12 of the Guidelines reads:
“Loss of sexual function related to spinal injury should only be assessed as an impairment where there is other objective evidence of spinal cord, cauda equina or bilateral nerve root dysfunction. The ratings described in AMA5 Table 13-21 (p 342) are used in this instance. There is no additional impairment rating system for loss of sexual function in the absence of objective clinical findings.”
Paragraph 1.32 of the Guidelines reads:
“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.”
Medical Assessor Garvey was correct to assess the respondent had 0% WPI of his reproductive system, that is the respondent had no WPI relating to sexual dysfunction. The radiological evidence that was before the Medical Assessor relating to the respondent’s spine comprised MRI scans that were done in 2014 and CT scan also that was done in 2014. The reports on those radiological investigations did not provide any evidence of any lesion of the respondent’s spinal canal causing a mass effect on the respondent’s cauda equina with compression of multiple nerve roots. Further, Medical Assessor Garvey’s examination of the respondent did not reveal the respondent had bilateral neurological signs in his lower limbs and sacral region.
Consequently, consistent with paragraph 4.22 of the Guidelines, a finding that the respondent has cauda equina syndrome could not be made.
It is the case, as the respondent submitted, that, consistent with paragraphs 4.26 and 7.12 of the Guidelines, there are pathways in addition to cauda equina syndrome, that enable an assessment of permanent impairment to be done for sexual dysfunction. Those pathways are where there is objective evidence of spinal cord dysfunction or objective evidence of bilateral nerve route dysfunction. With respect to the respondent, there is no objective evidence that he has spinal cord dysfunction, noting that the spinal cord ends at L1 and his injury occurred at L4, L5 and S1. Further, there is no objective evidence that the respondent suffers bilateral nerve root dysfunction.
Consequently, and notwithstanding Medical Assessor Garvey wrongly found, in the Appeal Panel’s view, that the respondent had cauda equina syndrome, Medical Assessor Garvey’s assessment that the respondent has 0% WPI relating to his reproductive system is correct. To repeat, paragraph 4.22 did not permit a finding of cauda equina syndrome to be made. Further, there was no evidence the respondent had spinal cord or bilateral nerve root dysfunction. Hence, an assessment that he has 0% WPI relating to his reproductive system/sexual dysfunction is correct.
Medical Assessor Garvey erred however in increasing the respondent’s assessment of WPI by 3% pursuant to paragraph 1.32 of the Guidelines. The reference in paragraph 1.32 to a “claimant’s permanent impairment” must be a reference to a permanent impairment that a claimant can be assessed to have in accordance with the Guidelines. Given the respondent could not be assessed to have a permanent impairment relating to his reproductive system, that is relating to his sexual dysfunction, paragraph 1.32 could not be engaged. The treatment that the respondent had with respect to his sexual dysfunction, being the use of Caverject implant, did result in either substantial elimination or total elimination of any assessable permanent impairment.
For these reasons, the Appeal Panel has determined that both the MAC Medical Assessor Garvey issued on 13 August 2023 and the MAC Medical Assessor Anderson issued on
13 August 2023 should be revoked (given that Medical Assessor’s Anderson’s MAC combined the erroneous assessment of Medical Assessor Garvey), and new MACs should be issued. The new certificates are attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3372/23 |
Applicant: | Heath Charles Alchin |
respondent: | Temora Shire Council |
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 Certificates of Medical Assessor John Garvey and Medical Assessor 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 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 | 9/04/13 | Chapter 4 | Table 15-5 | 29% | - | 29% |
| Scarring | Table 14.1 | 1% | - | 1% | ||
| Urinary system | Chapter 7 | Chapter 13 | 16% | - | 16% | |
| Reproductive system | Chapter 4, paragraphs 4.22, 4.23 and 4.26 Chapter 7, paragraph 7.12 | Chapter 7 | 0% | - | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 41% | |||||
0