Upper Hunter Shire Council v Towns
[2022] NSWPICMP 88
•19 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Upper Hunter Shire Council v Towns [2022] NSWPICMP 88 |
| APPELLANT: | Upper Hunter Shire Council |
| RESPONDENT: | Raymond Keith Towns |
| APPEAL PANEL: | Member Paul Sweeney Dr Tommasino Mastroianni Dr Drew Dixon |
| DATE OF DECISION: | 19 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Employer’s appeal from assessment of whole person impairment (WPI) as a result of an injury to the worker’s lumbar spine on 24 March 2009; Medical Assessor (MA) assessed an additional 1% WPI pursuant to Table 4.2 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment for previous laminectomies to the lumbar spine in 1991, and 1986, and to the lower thoracic spine in 2004; Held- that as the medical dispute between the parties concerned the consequences of the injury on 24 March 2009, it was not open to the MA to include the previous surgeries in the assessment of WPI; the MA also erred in considering the surgery in 2004 to the thoracic segment of the spine as a basis for a deduction from the assessed WPI in the lumbar segment of the spine pursuant to section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998; Medical Assessment revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 December 2021 the Upper Hunter Shire Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Lewington, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 22 November 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 of appeal on which the appeal is made.
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 the PIC Rules.
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
Raymond Towns (the respondent) has a long history of back pain. In 1981, he underwent a laminectomy to excise an L4/5 disc fragment. While he made a satisfactory recovery from that surgery, he experienced recurrences of symptoms in 1983 and 1986 while performing arduous physical work. On 15 October 1986, Dr Clery, his treating orthopaedic surgeon, performed a further laminectomy at which he removed “a large piece of excreted disc underlying the L5 nerve root”.
Following the surgery Dr Clery opined that the respondent was only fit for “very light work”. However, according to his statement, the respondent returned to work, first as a coach driver and then, to his pre-injury duties in the quarry industry.
In 2004, Dr Ferch, a neurosurgeon, performed further surgery to excise a benign schwannoma at the T12/L1 level of the respondent’s spine at the John Hunter Hospital. The operation was performed against a background of a “worsening” back pain over the previous year.
On 24 March 2009, the respondent suffered a further injury to his low back in the course of his employment with the appellant council. He states that he jolted his lower back when he drove a vehicle over a sharp drop in a pavement. Following this incident, he has experienced increasing back and leg pain. He came under the care of Dr Ferch, a neurosurgeon who expressed the opinion that the 2009 incident had caused an exacerbation of the respondent’s back pain. He advised against further surgery. He also saw Dr Christie, who expressed the opinion that there was no evidence of a new disc protrusion and no indication for further surgery.
When the respondent’s symptoms worsened, he was referred to another neurosurgeon, Dr Hsu, who performed an anterior L3/S1 interbody fusion with discectomies on 7 November and 5 December 2017. While the respondent improved following surgery, he has continued to experience symptoms in his back and radiculopathy in his left leg.
The appellant has paid the respondent weekly compensation during his absences from work and has met the cost of his medical and hospital expenses pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act). By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of that Act.
On 8 January 2021, Dr Fitzsimons, a neurologist, provided a report to his solicitor by which she assessed the respondent as suffering from 31% whole person impairment (WPI) as a result of the injury. She made a one third deduction to reflect the contribution to the respondent’s impairment of the previous injuries in accordance with s 323(1) of the 1998 Act. Thus, she assessed 21% WPI as a result of the injury in 2009.
Dr Richard Powell, an orthopaedic surgeon, saw the respondent at the request of the appellant and provided a report of 24 June 2019. He assessed WPI at 27%. After making various deductions pursuant to s 323 for previous injury, he assessed 8% WPI attributable to incidents on 5 March 2004, 22 April 2008, 24 March 2009 and the nature and conditions of the respondent’s employment.
The markedly different assessments of Dr Fitzsimons and Dr Powell gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. A delegate of the President referred the dispute to an MA for determination. On 15 November 2021, Dr Lewington issued a MAC by which he assessed WPI as 30%. He reduced that figure by four-tenths to reflect the contribution of the previous injuries and surgeries to the respondent’s impairment. His final assessment was 18% WPI. It is from that assessment that the appellant appeals.
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 PIC Rules.
As a result of that preliminary review, the panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that neither party sought a re-examination by a member of the panel. On consideration of the issues in dispute, it concluded that a further examination could not assist its deliberations.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA 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 MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the panel.
In summary, the appellant submits that, as the injury referred for assessment of WPI was that of 24 March 2009, the MA erred in concluding in his assessment an additional rating of 1% WPI in respect of surgery performed in 1981 and 1986 for an L4/5 disc prolapse and for the schwannoma tumour at T12 in 2004.
The appellant stated that:
“The MAC should be amended to deduct the allowance made for those procedures from the assessment of the respondent’s whole person impairment of 30% resulting from the injury on 24 March 2009.
Following that the s 323 deduction should be made.”
By its Reply the respondent argued that the methodology adopted by the MA was “logical and consistent” with the Guidelines. It continued:
“If a Medical Appeal Panel were to disturb the MAC and adopt a different methodology for assessing impairment this would require an adjustment to any discount pursuant to s 323.”
The adjustment to the discount was to reflect the reasoning of the MA who stated that:
“I have assessed the slightly higher deductible proportion of 4/10 as compared to the IME’s 1/3. In part this reflects the fact that I have included spinal-cord tumour surgery as part of the rateable impairment.”
FINDINGS AND REASONS
There is no doubt that the MA erred in allocating a rating of 1% WPI in respect of the surgeries undergone by the respondent in 1991, 1986, and 2004. The medical dispute referred for assessment by a document headed “Referral for Assessment of Permanent Impairment to Medical Assessor” dated 31 May 2004 requested assessment of WPI as a result of an injury to the lumbar spine on 24 March 2009. It did not refer to any prior injury.
In Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) the Court of Appeal by majority held that the role of the MA was to assess the medical dispute between the parties. It was an error to assess impairment outside the terms of the referral.
It will be readily apparent that the 1981 and 1986 surgeries occurred well before the commencement of the respondent’s employment with the appellant. The evidence suggests that the incident which gave rise to the second laminectomy performed by Dr Clery was the subject of a redemption payment pursuant to the provisions of the former workers compensation legislation by a prior employer. The surgery in 2004 related to an apparently non-compensable medical condition. A perusal of the documentation makes it perfectly clear that, other than their significance for the application of s 323 of the 1998 Act, they do not form part of the medical dispute between the parties in these proceedings.
It is not disputed that the MA was correct in assessing the respondent’s lumbar spine as DRE category 1V or in adding 1% WPI to reflect restrictions in the respondent’s activities of daily living in accordance with chapters 4.33 to 4.38 of the Guidelines. Plainly, however, the MA erred in applying Guidelines Table 4.2: Modifiers for DRE categories following surgery. It is, therefore, necessary for the panel to reassess the ratings made by the MA for these modifiers on the basis of his findings. That reassessment must be based on the impairment resulting from the 2009 injury.
Pursuant to Table 4.2 the respondent is entitled to an additional 3% WPI for radiculopathy. As he underwent a three-level laminectomy and fusion under Dr Hsu in 2017, he is entitled to an additional 1% WPI in respect of each of the second and third levels. As he underwent a second operation, he is entitled to an additional 2% WPI. The modifiers should, therefore, be 7% which, when combined with the 21% WPI which is not in dispute, gives rise to a total WPI of 27%. It is then necessary to apply s323 of the 1998 Act.
Section 323
The respondent specifically submitted that if the appeal panel accepted the appellant’s contention in relation to the modifiers for third and subsequent operations, it should also make an adjustment to the discount of 40% made by the MA in respect of s 323. He referred to the reasoning of the MA, who stated:
“On today’s examination I have assessed the slightly higher deductible proportion of 4/10 as compared to the IME’s 1/3. In part this reflects the fact that I have included spinal-cord surgery as part of the rateable impairment.”
It was an error for the MA to take earlier surgeries into account as part of the respondent’s rateable impairment resulting from the 2009 injury. Equally, it was an error for the MA to find that this surgery contributed to the impairment of the respondent’s lumbar spine. The surgery performed by Dr Ferch in 2004 was to the T12/L1 disc space, the lowest disc space in the thoracic spine. It is difficult to envisage how surgery to the lower thoracic segment of the spine might contribute to the impairment that arises in the lumbar spine from the fusion at L3/S1.
Accordingly, it is necessary for the panel to reassess WPI to correct that error. There were two opinions in respect of the appropriate deduction before the MA. After carefully considering the entirety of the pre-injury medical history available to her Dr Fitzsimons concluded that it was appropriate to make a one third deduction for pre=existing injury or condition.
Dr Powell made a much greater deduction in his report of 24 June 2019. However, his approach to the application of the s 323(1) to the facts of the case is difficult to follow. It does not comply with the language of the section or the instruction in relation to its operation provided by the case law. It is inappropriate to assess WPI in respect of previous injuries and deduct the percentages from the WPI assessed in respect of the injury giving rise to the medical dispute.
Rather, it is necessary to determine the extent to which the previous injuries contribute to the impairment assessed: see Cole v Wenaline Pty Ltd[2010] NSWSC 78, Fire & Rescue NSW v Clinen[2013] NSWSC 629 (Clinen), D’Aelo v Ambulance Service of New South Wales(1996) NSWCCR 139; and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq)[2013] NSWSC 365.
In the circumstances, the panel concluded that it should make a deduction consistent with the opinion of Dr Fitzsimons as her analysis of the effect of the schwannoma surgery is consistent with the view formed by the panel. In her report, she recorded the following:
“I have not included any consideration for the unrelated schwannoma within these categories and the deductions which follow therefore do not take account of the schwannoma (at a much higher level than the area of disc protrusion and fusion) which does not appear to have materially affected the present state.”
During its deliberations, the panel considered whether it was appropriate to make a larger deduction for a pre-existing condition. On the entirety of the evidence, however, the panel concluded that any greater deduction would involve an undue element of speculation. It must be borne in mind that s 323 is a disentitling provision. While the issue of onus is rarely of importance in a medical appeal, the principles enunciated a very long time ago in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden 114 CLR 164 have application to an evaluation under s 323. That these principles are relevant to the assessment of lump sum compensation under the Workers Compensation Act is also of ancient lineage: see Sadler v Commissioner for Railways (NSW) (1969) 123 CLR 216. In the opinion of the panel, the evidence did not establish any clear basis for a larger deduction than that assessed by Dr Fitzsimons.
A deduction of 1/3rd from the 27% WPI found on reassessment results in a determination of 18% WPI as a result of the injury on 24 March 2009,
For these reasons, the Appeal Panel has determined that the MAC issued on 22 November 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Lewington 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) |
| 1. Lumbar spine | 24 March 2009 | DRE Method Ch4, P 26 Table 4.1 ADL Pages 27-28, Paragraphs 4.33 - 4.36. Effect of Surgery P 29 Paragraph 4.27, Table 4.2 | Lumbar Spine Ch15,P 384, Table 15-3 | 27% | 1/3 | 18% |
| Total % WPI (the Combined Table values of all sub-totals) | 18% | |||||
Paul Sweeney
Member
Drew Dixson
Medical Assessor
Tommasino Mastroianni
Medical Assessor
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