Toll Transport Pty Ltd v Manson
[2022] NSWPICMP 413
•21 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Toll Transport Pty Ltd v Manson [2022] NSWPICMP 413 |
| APPELLANT: | Toll Transport Pty Ltd |
| RESPONDENT: | Jarryd James Manson |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Dr David Crocker |
| MEDICAL ASSESSOR: | Dr J Brian Stephenson |
| DATE OF DECISION: | 21 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Injury to lumbar spine requiring surgery after a period of conservative treatment; employer argued that reference to degenerative changes on scans required section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; no medical evidence making section 323 of the 1998 Act deduction; Cole v Wenaline Pty Ltd and Ryder v Sundance Bakehouse considered and applied; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 August 2022 Toll Transport Pty Ltd (Toll) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 July 2022.
Toll relies on the ground of appeal under s 327(3)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the assessment was made on the basis of incorrect criteria.
The delegate was satisfied that, on the face of the application, the ground of appeal was made out. We conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Manson suffered injury on 12 January 2013 while aged in his early 20s. He was attempting to remove the side gates of a semi-trailer which were usually heavy because some of the freight was leaning against them. He experienced severe pain in his low back radiating to his legs.
Because of his age, Dr Al-Kawaja recommended a series of cortisone injections and physiotherapy rather than surgery. In 2020, Mr Manson saw Dr Singh who recommended surgery which was carried out in two operations in late 2020.
The Medical Assessor assessed 27% whole person impairment (WPI).
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
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 no error in the assessment.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have 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 we have considered them.
In summary, Toll submitted that the assessment was made on the basis of incorrect criteria because the Medical Assessor did not make, or give reasons for failing to make, a deduction under s 323 of the 1998 Act in respect of a pre-existing condition or abnormality and did not disclose the path of his reasoning. Toll said that the Medical Assessor said that the reports of Drs Nair and Bentivoglio were particularly relevant, that Dr Nair noted multilevel degenerative disease and that the Medical Assessor gave “absolutely no explanation” why a deduction was made. Toll said that a deduction of at least one tenth should have been made. It sought re-examination.
In reply, Mr Manson noted that the Medical Assessor said that there was no pre-existing condition of significance and that is consistent with Dr Nair’s opinion. Dr Nair said that the radicular symptoms Mr Manson suffered were the result of a frank incident which also caused a permanent aggravation of the condition in his low back. There is no evidence that the pre-existing condition contributed to the WPI assessed.
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.
The MAC
The Medical Assessor set out the history of Mr Manson’s injury and treatment. He described his examination in detail. He considered an MRI scan dated 7 November 2017 and X-ray taken on 16 October 2020.
The Medical Assessor said:
“Mr Manson gives a history of hurting his lower back carrying out heavy lifting in January 2013. This has resulted in discogenic pathology, predominantly at the L4/5 articulation. This has ultimately been managed by a complex fusion procedure with an anterior and a posterior approach, each about a week apart. Although this gave him some improvement over the pain going down his left leg, the lower back pain still remains severe. At this assessment there were also radiculopathy features down the left leg.”
In explaining his calculations the Medical Assessor said:
“This is initially addressed in AMA 5 Page 384, Table 15-03. There has been a fusion at the L4/5 articulation. This places Mr Manson into DRE Lumbar Category IV. This provides a whole person impairment ranging between 20% and 23%, depending on the activities of daily living. For this he would attract a further 2%, giving 22%.
From Page 29, Table 4.2 in the SIRA Guidelines, there are further modifications. There have been two surgical procedures, each a week apart. This would therefore generate a further 2% WPI. At this assessment there was also significant radiculopathy down the left leg. This would generate a further 3%. These features are combined at 5%. This is, in turn, combined to the previous whole person impairment of 22%, which gives him a final whole person impairment of 26%.”
When commenting on the other medical reports in the file, the Medical Assessor said:
“Specialist Orthopaedic Surgeon, Dr John Bentivoglio in his report of 21/06/21 also assesses DRE IV with 20%. In studying his report, I get the impression that he allocates 2% for activities of daily living, with which I would agree although it looks as though this may have been applied twice. Dr Bentivoglio did not identify any radiculopathy. He also advised that although there had been two surgical procedures to the lower back, he did not feel that the application of an additional impairment for the second procedure was appropriate. With the greatest of respect, I would suggest that since there have been two surgical procedures, these should be fully accounted for with the assessment of whole person impairment. For example, if there had been a second surgical procedure at the same level for any other reason, this would also have been taken into account. Therefore, I am strongly of the view that there should be a further 2% to account for this form of treatment. (If this second procedure had been undertaken at the same time as the first, then there would not have been the need for the inclusion of the second surgical procedure impairment.)”
The Medical Assessor said that there was no pre-existing condition which would necessitate a deduction.
Consideration
The Medical Assessor said that the reports of Drs Nair and Bentivoglio were particularly relevant in the context of a very large file. Dr Bentivoglio was qualified by Mr Manson’s solicitors and provided an assessment of permanent impairment.
Dr Nair was asked by Toll to assess Mr Manson in June 2020 and to provide an opinion as to whether the surgery proposed was reasonably necessary medical treatment as a result of the injury in 2013. Dr Nair said that it was. He did not prepare an assessment of permanent impairment and did not see Mr Manson again. Toll did not rely on any assessment of permanent impairment in response to that of Dr Bentivoglio.
In Cole v Wenaline Pty Ltd, Schmidt J considered a case in which the medical members of an appeal panel found that a deduction under s 323 was warranted because of surgery which had been undertaken as a result of a previous injury some years before. Her Honour said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[2]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.[3]”
[2] At [29]-[30].
[3] At [38].
In Ryder v Sundance Bakehouse[4] (Ryder) Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
And
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”[5]
[4] [2015] NSWSC 526 at [45].
[5] At [54].
Those passages explain why the submissions made by Toll cannot be accepted. Toll’s submissions are not supported on any medical opinion suggesting that s 323 is relevant to the assessment of permanent impairment.
Mr Manson underwent conservative treatment for the injury. In late 2019 he was referred to Dr Singh because of “left quadriceps weakness from a long-standing L3/4 foraminal disc extrusion.” Dr Singh said that an MRI scan on 7 November 2019 revealed a disc bulge causing high-grade left foraminal stenosis. The surgery proposed and undertaken was a staged L3/4 decompression and fusion.
Dr Nair was asked to consider if the surgery proposed by Dr Singh was reasonably necessary medical treatment as a result of the injury. He said that Mr Manson suffered “functional impairment due to multi-level lumbar degenerative disc disease.” He continued:
“It is my opinion that the lumbar disc herniation at L3/4 as labelled by the reporting radiologist on the most recent MRI of 7 November 2019 is likely related to his employment. The underlying endplate irregularity and ‘Scheuermann like changes’ are not related to employment.”
Dr Nair accepted that there was a disc herniation at L3/4 and said that the radicular symptoms in Mr Manson’s left leg were in a L4 dermatomal pattern and related to the injury. Degenerative change at any other level of Mr Manson’s spine was irrelevant to the need for surgery at L3/4. Dr Nair considered that the proposed surgery at L3/4 was reasonably necessary and that the injury had caused a permanent aggravation of an underlying tendency to degenerative disc disease.
The surgery which was undertaken was required as a result of the disc herniation. The assessment of permanent impairment is a different task to the consideration of whether surgery is reasonably necessary.
Permanent impairment is assessed under Table 15-03 of AMA 5 and chapter 4 of the Guidelines. The nature of the surgery required assessment in DRE Lumbar Category IV because it was a fusion. The Medical Assessor appropriately applied modifiers, including that for a second operation, to assess 26% WPI.
As Campbell J said in Ryder, a s 323 deduction is only appropriate if it “made a difference to” the assessment of permanent impairment. There is no evidence that any pre-existing condition made a difference to the impairment assessed. No medical practitioner has said that it did and Dr Nair’s report does not provide support for Toll’s submissions.
The Medical Assessor said the reports of Dr Nair and Dr Bentivoglio were relevant and we agree that they provided detailed summaries of the claim in the midst of a large file. There was no medical evidence supporting a s 323 deduction. A s 323 deduction was not appropriate based on Mr Manson’s age, the history of the injury and the radiological evidence. The mere fact that Dr Nair has noted degenerative change on radiology did not require the Medical Assessor to provide extensive reasons explaining why he did not make a s 323 deduction.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 July 2022 should be confirmed.
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