Transport for NSW v Lowden-Menz
[2021] NSWPICMP 135
•27 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Transport for NSW v Lowden-Menz [2021] NSWPICMP 135 |
| APPELLANT: | Transport for NSW |
| RESPONDENT: | Maurice Lowden-Menz |
| APPEAL PANEL: | Member John Wynyard Dr Margaret Gibson Dr Gregory McGroder |
| DATE OF DECISION: | 27 July 2021 |
CATCHWORDS: | WORKERS COMPENSATION- Employer appealed against 15% WPI assessment for left upper extremity (10%) and back (6%); appeal confined to the back; whether DRE II category finding a demonstrable error in the absence of most criteria set out in AMA5; Held- AMA5 Table 15.3 confers a discretionary power on a Medical Assessor by the use of the word ”may”; individual criteria therein named not exclusive; criteria for DRE I assessment not appropriate to worker; Table 4.7 of the Guides considered where Medical Assessor unable to distinguish between two DRE categories; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 November 2020 Transport for NSW, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mohammad Assem, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 4 November 2020.
This Statement of Reasons follows our determination of the appeal by the injured worker against the same MAC, issued on 23 April 2021.
The appellant 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,
· 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.
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 Guides) and the American Medical Aviation Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 7 August 2020 Consent Orders were made and on 30 October 2020 a Further Amended Referral was made to the MA seeking an assessment of WPI caused to the “left upper extremity, lumbar spine, chronic pain” by injury on 30 May 2015.
The respondent was employed by Transport for NSW in 2009 as a Grade 1 Signaller. He progressed to working as a Grade 4 Controller. His last day of work was 2 January 2018 and his position was formally terminated in June 2019.
On 30 May 2015 Mr Lowden-Menz was opening a heavy security door at the Control Centre when he sustained a forced extension injury to his right thumb. He sought medical advice and after some time off eventually returned to his full duties but with needing some time off as well.
In our determination as to the development of the respondent’s symptoms in his left upper extremity in matter M2 3723/20, we described the relevant history.
The respondent also complained of persistent severe pain in his lower back. Treatment included the insertion of a spinal cord stimulator in October 2017 which was complicated by the development of numbness involving the left leg and his toes, sparing the fifth toe. Because of these symptoms, the stimulator was relocated to Mr Lowden-Menz’s abdomen. He continued to complain of residual numbness in his left leg and poor balance.
He has also undergone further MRI investigation into his lumbar spine, a further ultrasound examination of his left wrist on 10 January 2018, an ultrasound of his left hip on 10 January 2018, and a further CT scan of the lumbar spine on 28 September 2018. This latter CT scan showed early facet joint arthrosis at L2/3, a broad based disc bulge at L4/5 and L5/S1 with facet joint arthropathy.
The MA found a combined value 15% WPI consisting of 10% WPI for the left upper extremity and 6% WPI in relation to the lumbar spine.
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 as no request was made for a re-examination by the appellant employer, and no error has been found.
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 which 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 (Vegan) 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 appellant employer confined this appeal to the finding by the MA as to the lumbar spine.
THE MAC
The MA described the injury on 30 May 2015 to the injured worker’s right thumb. He noted that Mr Lowden-Menz returned to work after being certified fit for suitable duties but finding that he was unable to complete the work. He returned six weeks later and upgraded to his pre-injury hours albeit with time off work intermittently. Investigations were carried out on his left wrist and thumb and he underwent treatment for his persisting symptoms in his left upper extremity.
The MA said[1]:
“Due to persistent severe pain, a spinal cord stimulator was inserted in around October 2017. This was complicated by the development of numbness involving his left leg and the first, second digits. It also involved the third, fourth digits, sparing the fifth toe. His hand symptoms improved with the use of his spinal cord stimulator, but he was complaining of pain across his back and his left leg. It was therefore relocated to his abdomen with some improvement in his symptoms. There was still residual numbness in his left leg and poor balance.”
[1] Appeal papers page 32.
The MA noted that nerve conduction tests had been performed on the left hand and also to the lower extremities, although the results were not available. Mr Lowden-Menz told the MA that he thought he had undergone an MRI scan to the lumbar spine, but that was not available.
The MA noted the complaints of Mr Lowden-Menz, and described his present symptoms as[2]:
“He also reports constant pain across his low back that he rates as 7/10 on a visual analogue scale. The pain is in the mid-lumbar region radiating across his buttocks, the posterior aspect of his left leg and involves the left knee and a tingling sensation involving his toes, particularly the first and second toes. He states that he has difficulty sitting for long periods.
He estimates that he can stand for five to six minutes and walk for 10 minutes. He has difficulty twisting or bending. After walking for more than 10 minutes, there is a jarring discomfort to his left wrist and also pain in his back, left hip and neck.”[2] Appeal papers page 33.
The MA recorded Mr Lowden-Menz’s social activities and restrictions in activities of daily living saying[3]:
“• Social activities/ADL: Mr Lowden-Menz lives with his wife and three children in a property at Penrith. He can pick up a jug of water with his left arm but not for long periods. He is independent with self-care but sometimes uses a shower chair. He does the cooking, cleaning, vacuuming for 5-10 minutes at a time. He cannot pull the clothes out of the washing machine. He can hang up the washing but sometimes experiences spasms. If the spasms occurred, he might throw a cup across the other side of the room. He can do some of the gardening and yard work with his uninjured right arm but usually obtains paid assistance.”
[3] Appeal papers page 34.
On examination of the lumbar spine the MA reported[4]
“Lumbar spine
He had a 6 cm longitudinal surgical scar and a 5 cm transverse scar from the insertion of the spinal cord stimulator. This was relocated to the abdominal wall where there is a transverse surgical scar. He reported tenderness on palpation. There was no muscle guarding or spasm.There was symmetrical restriction of lumbar movement to three-quarters of normal range in flexion, extension, lateral flexion and rotation with pain reported at the end of range.
He did not have any difficulty climbing on or off the examination couch. Active straight leg raise in the supine position was 70° on the right with complaints of pain involving his right leg and 50° on the left. His reflexes were brisk and symmetrical. Power and tone were normal. Sensation was reduced over the entire left leg in a global distribution. There was no change in colour, temperature or perspiration. There were no dystrophic changes. He was able to stand on his heels and toes without difficulty. He was able to squat three-quarters of normal range and but had difficulty. He did not have any difficulty putting on his shoes and socks using both hands.”
[4] Appeal papers page 29.
In his summary the MA said in dealing with the injury to the lumbar spine, that after the spinal cord simulator had been inserted, Mr Lowden-Menz experienced pain across his lower back radiating to his left leg. He said[5]:
“He was suspected of having sciatica due to involvement of the sciatic nerve root. This is unusual as the spinal cord stimulator is inserted in a superficial position, but the leads may have caused mild irritation to the sciatic nerve. Nevertheless, at the time of my assessment, he did not have any focal neurological abnormalities that corresponded to a specific dermatomal pattern. Radiological imaging of his lumbar spine was unremarkable apart from age related degenerative changes.”
[5] Appeal papers page 36.
The MA assessed a DRE lumbar category II together with additional 1% for restrictions in activities of daily living. He said[6]:
“With regards to the lumbar spine, he demonstrated a symmetrical restriction in lumbar motion without any muscle guarding, spasm or spinal dysmetria. There were no radicular symptoms corresponding to a specific dermatomal pattern and no focal neurological deficits. I have given the benefit of the doubt and awarded a DRE lumbar category II or 6% whole person impairment inclusive of 1% for a minor limitation in his activities of daily living (He can do some of the gardening and yard work with his uninjured right arm but usually obtains paid assistance).”
(Footnotes omitted).
[6] Appeal papers page 38.
When discussing the report of Dr Powell, Orthopaedic Surgeon, the MA said[7]:
“Although my clinical findings were similar to Dr Powell, I have …. given him the benefit of the doubt for the lumbar spine.”
SUBMISSIONS
[7] Appeal papers page 39.
The appellant employer
The appellant employer alleged error in the allocation by the MA of a DRE II category for the lumbar spine. The appellant employer kindly repeated the criteria necessary for both a DRE II category.
We were referred to the findings by the MA and particularly that there were no findings that were consistent with the criteria set out for a DRE II categorisation.
The appellant employer observed that the MA had used Chapter 4.7 of the Guides to enable him to qualify Mr Lowden-Menz into that category. The applicant employer also kindly provided the content of that guideline. The MA had failed to disclose his reasoning as to why he had been unable to differentiate between the two DRE categories, the appellant employer submitted. Moreover, there was no cause for doubt when the relevant criteria were examined, as the MA had found:
“(i) There was no muscle guarding.
(ii) There was no muscle spasm.
(iii) There was no spinal dysmetria
(iv) There was no radicular symptoms.
(v) There was no focal neurological deficit.
(vi) There was no asymmetry loss of range of movement.”
The worker
The respondent’s submissions were prepared by Mr James McEnaney of counsel (as indeed they were in Mr Lowden-Menz’s appeal which we determined on 23 April 2021). Mr Lowden-Menz noted the ground of appeal advanced by the appellant employer and submitted that it was simply caviling with the reasonable exercise of a discretion which was conferred on “a medical professional following a physical examination”. Mr McEnaney referred to the history of treatment undergone by Mr Lowden-Menz and the results of the investigations.
Mr McEnaney submitted that the matters referred to by the MA were not consistent with the description of a DRE I categorization. He submitted that there was in fact “other indication of impairment related to injury or illness” in the appearance of the CT scan of 28 September 2018, the insertion of a spinal court stimulator in or about October 2017, and the ensuing symptoms.
There was also, it was submitted, some uncertainty relating to the neurological symptoms complained of, and as to the findings by the MA of symmetrical restriction of movement and reduced sensation in a global distribution over the left leg. Mr McEnaney referred also to the conjecture as to the cause of the complaints about sciatica.
The MA had not made any demonstrable error simply by exercising a discretion that was granted to him by virtue of the criteria set out in the Guides and in AMA 5, Mr McEnaney contended. Mr McEnaney submitted that the MA had complied with his obligation to give reasons and that the appellant employer had done no more than cavil with his conclusions.
Discussion
This is an unusual case in that the condition of the lumbar spine has been caused as a consequence of the insertion of a spinal stimulator which apparently was intended to treat the worker’s injury to his thumb. The MA has set out in a thorough and considered MAC the reasons for his assessment, referring to what he regarded as a discretionary power regarding “the benefit of the doubt.”
It his instructive to reproduce the whole of the MA’s comments regarding Dr Powell’s opinion as to the involvement of the lumbar spine, the MA said[8]:
“With regard to the sciatic nerve, [Dr Powell] opined that there may be some irritation from the device but this would not be considered an injury to the lumbar spine as none of the structures were affected by placement of the device. …. Although my clinical findings were similar to Dr Powell, I have … given him the benefit of the doubt for the lumbar spine.”
[8] Appeal papers page 39.
The question arises as to whether the MA’s referral to the “benefit of the doubt” in this context related to whether the signs and symptoms exhibited by Mr Lowden-Menz could in fact constitute an injury to the lumbar spine at all, bearing in mind that the symptoms were caused by the installation of the spinal stimulator. This area of speculation did not assist, as the referral had included the lumbar spine, and injury was thereby admitted.
However, with regard to his comments about his findings on examination, The MA was somewhat clearer, as his reference there to “the benefit of the doubt” related to the criteria for the assessment of lumbar impairment as set out in Table 15.3 of AMA 5, at page 384.
Whilst the appellant employer was correct to submit that the MA did not find evidence on examination of muscle guarding, muscle spasm, spinal dysmetria, focal neurological deficit, or asymmetrical loss of range of movement, and allowing for the sake of argument that he found no radicular symptoms, the checking of each criterion against those set out in Table 15.3 does not necessarily determine the appropriate lumbar DRE category. It is accordingly necessary to consider the criteria for both DRE categories I and II.
Category I provides:
“No significant clinical findings, no observed muscle guarding or spasm, no documentable neurological impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures.”
Category II provides relevantly:
“Clinical history and examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or non-verifiable radicular complaints of radicular pain defined as complaints of radicular pain without objective findings; no alteration of structural integrity and no significant radiculopathy.”
Chapter 4.7 of the Guides provides:
“4.7 If an assessor is unable to distinguish between two DRE categories, then the higher of those two categories should apply. The reasons for the inability to differentiate should be noted in the assessor’s report.”
It can be seen that the criteria for category I includes “no other indication of impairment related to injury.” Category II does not mandate that the individual criteria therein set out are exclusive, as it provides that where the clinical history and examination findings are compatible with a specific injury, the findings “may” include the criteria thereafter set out. The structure of the criteria accordingly gives an MA a discretion as to which category is to be ascribed.
We do not feel that category I is appropriate in the worker’s situation, as the “other indication of impairment” is present, in the form of the complaints of Mr Louden-Menz’s restrictions in his activities of daily living, and indeed of symptoms as described above following the installation and then relocation of the spinal stimulator.
Although the MA did not find any radiculopathy, we note that in his summary he discussed whether the sciatic symptoms might have been caused by the leads in the spinal stimulator, and we note further that whilst the worker complained of a global reduction of sensation in his left leg on examination, his neurological abnormalities did not correspond to a specific dermatomal pattern. This finding in any event might constitute “non-verifiable radicular complaints,” defined in category II as “complaints of radicular pain without objective findings.”
Given the discretionary nature of category II, we find no error in the assessment. The MA was in two minds as to which category was applicable, and it was appropriate therefore that he availed himself of the option given by Chapter 4.7 of the Guides. Whilst other minds might differ, the course he chose was open to him. His explanation for doing so was sufficiently evident to disclose his path of reasoning, and his MAC is thus confirmed.
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