Toll Personnel Pty Limited v Ari Veloutsos
[2021] NSWPICMP 10
•8 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Toll Personnel Pty Limited v Ari Veloutsos [2021] NSWPICMP 10 |
| APPELLANT: | Toll Personnel Pty Limited |
| RESPONDENT: | Ari Veloutsos |
| APPEAL PANEL: | Catherine McDonald Dr Richard Crane Dr John Dixon- Hughes |
| DATE OF DECISION: | 8 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker suffered a right inguinal hernia and during surgery the right ilioinguinal nerve was excised; worker developed genitofemoral and ilioinguinal neuralgia; one independent medical examiner also diagnosed iliohypogastric neuralgia though the treating pain specialist and two other IMEs did not; AMS assessed genitofemoral, ilioinguinal and iliohypogastric neuralgia but did not provide reasons for including the latter and provided only generalised examination findings; no evidence of dysaesthesia in iliohypogastric nerve distibrution; no error by AMS in assessment in assessing worker in highest class of relevant table; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 December 2020 Toll Personnel Pty Limited (Toll) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr John Garvey, as an Approved Medical Specialist (AMS) under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 30 November 2020.
Toll 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 Registrar was satisfied that, on the face of the application, at least one ground of appeal has been made out – that the MAC contains a demonstrable error. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The Workers Compensation Medical Dispute Assessment Guidelines 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 those guidelines.
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 Veloutsos was employed by Toll as a forklift driver. His work required him to lift the gates on the sides of trucks numerous times in a day. Over time he developed pain and swelling in his right groin which he noticed on 29 August 2011 and he saw his general practitioner on 31 August 2011.
Mr Veloutsos was referred to Dr R Hanney who diagnosed a right inguinal hernia and recommended open repair surgery which was carried out on 28 November 2011. During the surgery, the ilioinguinal nerve was excised because it was likely to become impinged in the mesh repair. Mr Veloutsos returned to selected duties but developed increasing pain. He was referred to A/Prof R Sundaraj for pain management treatment.
Dr P Truskett has examined Mr Veloutsos on many occasions for Toll. In 2012 he diagnosed ilio-inguinal nerve neuralgia.
A/Prof Sundaraj diagnosed genitofemoral neuralgia. After undertaking a right L1 dorsal root ganglion block, A/Prof Sundaraj recommended that Mr Veloutsos undergo a peripheral nerve stimulator implant alongside the injured nerve and a temporary trial placement took place in 2013.
In February 2014, A/Prof Sundaraj diagnosed right groin neuropathic pain which was probably due to ilioinguinal nerve, including the genital femoral nerve, neuralgia. He recommended a trial of a spinal modulation implant at the right L1 root being the origin of the ilioinguinal nerve supply. If successful, he proposed to proceed with a permanent implant.
Liability was disputed and proceedings were commenced in the Workers Compensation Commission. A Certificate of Determination was issued on 18 March 2016, ordering Toll to pay the s 60 expenses of that treatment. The implant was installed in 2017 and removed in 2019.
Mr Veloutsos claimed permanent impairment compensation in respect of 27% whole person impairment (WPI) based on a report of Dr M Guirgis, orthopaedic surgeon. When Dr Guirgis’ qualifications to assess impairment in respect of the hernia and system were challenged, Mr Veloutsos’ solicitor qualified Dr N Berry who assessed 10% WPI in respect of the ilioinguinal nerve and genitofemoral nerve and combined that with Dr Guirgis’ assessment of 12% WPI in respect of the right hip and 4% for scarring, resulting in an assessment of 24% WPI.
Dr Truskett again examined Mr Veloutsos and assessed 10% WPI as a result of dysaesthesia of the right ilioinguinal nerve and genitofemoral nerve. He disputed that Mr Veloutsos suffered a right hip condition and assessed 0% for scarring.
Mr Veloutsos was referred to the AMS who prepared a MAC dated 30 November 2020. He assessed 15% WPI, diagnosing right mesh inguinodynia consisting of dysaesthesia of the right iliohypogastric, ilioinguinal, genitofemoral and obturator nerves. The AMS assessed 5% WPI for each of the right iliohypogastric, ilioinguinal and genitofemoral nerves, noting that dysaesthesia of the obturator nerve is assessed at 0% under AMA 5. He said there was no rateable impairment in respect of the right hip or scarring.
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 Workers compensation medical dispute assessment guidelines.
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 AMS for the original medical assessment and has taken them into account in making this determination.
The parts of the medical certificate given by the AMS 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, Toll (in submissions signed by its lawyer, Mr Ainsworth) submitted that the AMS applied incorrect criteria by failing to provide reasons for assessing the maximum impairment for each of three nerves when applying Table 5.1 of the Guidelines. Toll submitted that the AMS had not provided a medical basis for his comment that there were more than two nerves affected. It noted that Dr Berry had disputed Dr Guirgis’ assessment in respect of the iliohypogastric nerve, saying that there was no alteration of sensation in that area.
In reply, Mr Veloutsos, through his solicitor, Mr Andriano, said that the AMS had provided enough information for the Appeal Panel to discern his reasoning process with respect to assessment at the maximum rating. He said that the AMS had set out his extreme symptoms and complaints, taking into account the complication of excessive reaction to the mesh. Mr Veloutsos characterised the second ground as a complaint that the AMS should not have found injury to the iliohypogastric nerve because Drs Truskett and Berry did not. Mr Veloutsos said that the AMS set out reasons in the description of his physical examination.
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 MAC
The AMS briefly summarised the evidence of Mr Veloutsos’ treating doctors and his statement. He said that Mr Veloutsos’ present symptoms were;
“Burning sensation and stabbing pain around inner thigh and towards the scrotum. The intense pain makes him feel like he would like to rip something out and the stabbing pain is associated with a sandpaper like sensation when clothes touch the region and he can only sleep with a bed sheet on him.”
The AMS’s findings on examination included:
“Palpation: There were no enlarged lymph glands palpable in the groin regions. The potential hernia orifices were closed, the femoral pulses were palpable and the external genitalia were normal. Light palpation was hypersensitive in the abdomen and groin region. Moderate palpation of the abdomen was hypersensitive in the right lower quadrant of his abdomen There was muscular guarding and rebound tenderness. There were no abdominal masses palpable.”
With respect to his groin examination the AMS said:
“Groin Examination: Testing his right conjoint tendon by resisted situp was painful (5/10). Adductor palpation and resisted adduction were painful on the right (4-5/10) and resisted adduction on the left referred across the midline to the right adductor compartment. His Adductor squeeze test in the neutral and 45° position was normal and in the 75° position referred to the right inguinal region. There is hypersensitivity to punctate sensation in the distribution of the right iliohypogastric, ilia-inguinal, genitofemoral and proximal obturator nerves. The pudendal nerves and lateral femoral cutaneous nerves were normal.”
The AMS summarised his diagnosis as “right mesh inguinodynia consisting of dysaesthesia of the right iliohypogastric, ilioinguinal, genitofemoral and obturator nerves.” He assessed 15% WPI and said:
“The Worker underwent a standard open right inguinal hernia repair with mesh but sustained the complication of excessive (presumed inflammatory/autoimmune) reaction to the mesh being severe dysaesthesia in the anatomical distribution of the right iliohypogastric, ilia-inguinal, genitofemoral and obturator nerves.”
He explained his calculations:
“The Worker receives 5% WPI for dysaesthesia of the right iliohypogastric, ilio-inguinal and, genitofemoral nerves. Dysaesthesia of the right obturator nerve is assessed at 0% WPI under Table 17-37 on page 552 of AMAS. There is no rateable impairment for reduced range of motion of hip joint because the movements are limited by mesh inguinodynia which has already been assessed as the maximum under Table 5.1, page 33 WCC guidelines #4. There is no rateable impairment for scarring because ‘uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment’ (Clause 14.6, page 73 WCC guidelines #4).”
The AMS considered the reports of Drs Guirgis and Berry. He summarised Dr Berry’s report and said “ There are more than 2 nerves affected by this mesh inguinodynia inflammatory process.” He made the same comment after summarising Dr Truskett’s reports.
No issue was raised with respect to the assessments of the right lower extremity and scarring so those aspects of the MAC do not need to be considered.
Impairments assessed
Toll argued that the AMS applied incorrect criteria in in failing to give reasons for assessing 5% in respect of each of the affected nerves. If this was an error, it is not the application of incorrect criteria. In Pitsonis v Registrar of the Workers Compensation Commission[1] Mason P said:
[1] [2008] NSWCA 88.
“Malpass AsJ rejected the argument based upon s327(3)(c) because, as presented to him, it went no further than an argument that Dr Parmegiani had failed to correctly apply the Guides. This was really no more than a dispute going to the merits of the assessment. The Delegate was held not to have erred when he refused to permit such a complaint to go forward to the Appeal Panel. It did not fall within para (c).
In my view the Associate Judge was correct.
…
The expression ‘incorrect criteria’ is undefined in the Act. In Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL referred (at [58]) to a statement in the minister’s Second Reading speech to the effect that s327(3)(c) was designed to cover circumstances where the Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the “criteria” upon which assessment is to be based are to be found in any relevant guides including guides issues by WorkCover. At [60] his Honour observed that this view drew support from the requirement in s322(1) that the assessment is to be made ‘in accordance with the WorkCover Guidelines’.‘The Chief Judge’s decision went on appeal to this Court (Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284). Basten JA, with whose reasons McColl JA agreed said (at 391[95]) that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the Certificate, may be ‘demonstrable errors’ within s327(3)(d), they would not usually satisfy the ‘incorrect criteria’ ground. His Honour observed that the latter ground:
‘must refer to such matters as the tests set out in the Guidelines, where they are applicable’”(emphasis in the original).
If the assessment made by the AMS was an error, it was a demonstrable error rather than the application of incorrect criteria. The Panel does not agree that the AMS made an error.
Assessment of permanent impairment as a result of hernias repair is dealt with under Chapter 16. Paragraphs 16.2 and 16.3 provide:
“AMA5 Section 6.6, ‘Hernias’ (p 136): Occasionally in regard to inguinal hernias, there is damage to the ilio- inguinal nerve following surgical repair. Where there is loss of sensation in the distribution of the ilio-inguinal nerve involving the upper anterior medial aspect of the thigh, a 1% WPI should be assessed as per Table 5.1 in the Guidelines. This assessment should not be made unless the symptoms have persisted for 12 months.
Where, following repair, there is severe dysaesthesia in the distribution of the ilioinguinal nerve, a maximum of 5% whole person impairment (WPI) may be assessed as per Table 5.1 in the Guidelines. This assessment should not be made unless the symptoms have persisted for 12 months.”
Table 5.1 provides for the assessment of certain peripheral nerves in four classes from 0% to 4-5%. The highest range applies where there is “severe neurogenic pain and sensory alteration in an anatomic distribution.” The assessment can relevantly be made in respect of the genitofemoral, ilioinguinal and iliohypogastric nerves.
While paragraph 16.2 only refers to the ilioinguinal nerve, there is consensus that the genitofemoral nerve should also be assessed. As Dr Truskett noted in his report dated 1 June 2020, it can be assessed as an analogous condition. That was not, in the end, necessary because the referral was in respect of the nervous system.
The assessment in the range in Table 5.1 is a matter for the clinical judgement of the AMS. The responses to light or moderate palpation are not determinative. Notably, Dr Truskett, qualified for Toll, assessed 5% in respect of each of the ilioinguinal and genitofemoral nerves.
The criteria for the highest rating is severe neurogenic pain. Noting the extent of the treatment that Mr Veloutsos has undergone, it was an appropriate exercise of the AMS’s clinical judgement to assess him at the highest end of the range.
The first ground of appeal is without substance.
Iliohypogastric nerve
A/Prof R Sunderaj saw Mr Veloutsos for the first time on 19 September 2012 and reported to Dr Hanney that he had genitofemoral neuralgia. His initial treatment focussed on that nerve. On 2 April 2014 A/Prof Sunderaj told Toll that Mr Veloutsos had signnifcant neuropathic pain affecting his ilioinguinal and genitofemoral nerves. He maintained that diagnosis in subsequent reports and did not diagnose iliohypogastric neuralgia.
Dr M Guirgis, orthopaedic surgeon, said in his report dated 3 July 2018:
“Unfortunately, shortly after the operation he developed severe disabling neuropathic pain and allodynia affecting his right groin, the right side of his scrotum, and the inner right thigh - the territories of genitofemoral, ilioinguinal, and iliohypogastric nerve all being branches of the T12, L1, and L2 nerve roots.”
Dr Guirgis assessed 5% WPI in respect of the iliohypogastric nerve.
Dr Berry said in his report dated 14 February 2020 that he did not agree with Dr Guirgis’ assessment because there was no alternation of sensation in the distribution of that nerve. He said:
“With the claimant supine, careful assessment of sensation revealed that there was severe hypersensitivity from the mid-inguinal point to the pubis into the medial aspect of the left thigh below the inguinal ligament and into the lateral scrotal wall. There was no abnormality of sensation on the left side and no other examination was conducted.”
Dr Truskett said in his report dated 17 October 2018 that Mr Veloutsos had neuralgia of his ilioinguinal nerve. In his report dated 1 June 2020, having reviewed the reports of Drs Guirgis and Berry, Dr Truskett said:
“Mr Veloutsos experiences pain in his right groin which radiates to the base of his penis and scrotum and the inner aspect of his right thigh.”
and
“On examining his right groin, Mr Veloutsos described sensory disturbance which extended approximately 3-4cm above his scar to the base of his penis and right scrotum, and 6cm below the pubic tubercle on the medial aspect of his right thigh. He experienced hyperaesthesia over these areas.”
Dr Truskett said that Mr Veloutsos had “dysaesthesia of his right ilioinguinal and genitofemoral nerves.” When asked about the diagnoses provided by Drs Guirgis and Berry, he disagreed with Dr Guirgis’ assessments with respect to the right hip and chronic regional pain syndrome and said:
“I agree with Dr Berry’s assessment of Mr Veloutsos’ ilio-inguinal and ilio-hypogastric nerve dysaesthesia and this is because of the consistency and area of involvement that was way more consistent today than when previously examined by me. Dr Berry uses the genitofemoral nerve as a similar rating of the ilio-inguinal nerve, as there is no genitofemoral nerve impairment described. He correctly uses this as analogy. I agree with that assessment.”
The AMS said in more than one place in the MAC that Mr Veloutsos suffered dysaesthesia in the distribution of the iliohypogastric, ilioinguinal, genitofemoral and obturator nerves. He did not describe the anatomical area to which he referred. When there is a dispute in the evidence about the involvement of the iliohypogastric nerve, it was necessary for him to do so.
Post-herniorrhaphy neuralgia is usually found to affect either the ilioinguinal or genitofemoral nerve or both.
The distribution of the iliohypogastric nerve is described by R J Last in Anatomy Regional and Applied[2] as:
“Sloping down between external and internal obliques it pierces the aponeurosis of the external oblique an inch or so above the superficial inguinal ring and ends by supplying the skin over the lower part of rectus abdominis.”
[2] 4th edition, 1966.
None of the medical reports in the file indicate a finding of dysaesthesia over the lower end of the rectus abdominal muscle. The nerve is not related to the inguinal canal or the area of the implant of the mesh
The findings recorded by the AMS are general and the extent of them is set out at [25] and [26] above. Reported punctate hypersensitivity does not necessarily equate to severe dysaesthesia. Muscle guarding and rebound tenderness in the right lower abdomen is usually considered to be associated intra-abdominal irritation, for example acute appendicitis.
The AMS recorded that the worker suffered a burning sensation and stabbing pain around the inner aspect of the right thigh and toward the scrotum. These symptoms do not relate to the ilio-hypogastric nerve.
The more detailed examination findings recorded by Drs Berry and Truskett, coupled with knowledge of the distribution of the ilio-hypogastric nerve are sufficient to allow the Panel to determine that the dysaesthesia suffered by Mr Veloutsos does not involve that nerve.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 November 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr John Garvey 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 the Guidelines | 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) |
| Right lower extremity | 2 September 2011 | Chapter 3 paragraph 3.16 | Chapter 17 page 537, Table 17-9 | 0% | 0% | 0% |
| Nervous system | 2 September 2011 | Table 5.1 page 33 | Table 17-37 page 552 | 10% | 0% | 10% |
| Scarring | 2 September 2011 | Chapter 14 page 73, paragraphs 14.6 and 14.7 TEMSKI page 74 | Not applicable | 0% | 0% | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 10% | |||||
Catherine McDonald
Member
Dr Richard Crane
Medical Assessor
Dr John Dixon-Hughes
Medical Assessor
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