Velevski v Glad Cleaning Services Pty Ltd
[2021] NSWPICMP 136
•27 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Velevski v Glad Cleaning Services Pty Ltd [2021] NSWPICMP 136 |
| APPELLANT: | Josif Velevski |
| RESPONDENT: | Glad Cleaning Services Pty Ltd |
| APPEAL PANEL: | Member John Wynyard Dr Margaret Gibson Dr John Ashwell |
| DATE OF DECISION: | 27 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against assessment of 7% WPI for lumbar spine and 0% WPI for either lower extremity; additional evidence tendered and rejected; statement of worker’s daughter lacking in prima facie probative value; Lukacevic v Coates Hire Operations Pty Ltd applied; further report by medico-legal expert rejected as offending public policy; whether earlier report of medico-legal expert should have been followed by the Medical Assessor; Held- Medical Assessor not required to discuss all diagnoses before him; failure to discuss a particular diagnosis does not lead to an inference that the Medical Assessor failed to consider it; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 March 2021 Josif Velevski, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 17 February 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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· 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.
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 Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 26 November 2020 following a defended hearing, this matter was remitted by an Arbitrator for an assessment of WPI. On 22 December 2020 the delegate of the Registrar referred this matter to the MA for assessment of WPI caused to the right lower extremity (ankle/foot/Achilles tendon), the left lower extremity (ankle/foot/Achilles tendon) and the lumbar spine, all of which occurred on a deemed date of 30 June 2016.
Mr Velevski was employed as a cleaner by the respondent since 2002 on a full time basis. He noted the onset of discomfort in the lower back region and both heels in about 2012 which symptoms became worse with time. His work was heavy at times and involved the use of a lot of the equipment required of a cleaner, such as buckets full of chemicals and pushing, pulling trolleys for eight hours a day.
The MA found that a 7% WPI in relation to the injury to the lumbar spine but 0% for either the right or left lower extremity.
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.
The appellant requested to be re-examined by an MA who was a member of the Appeal Panel. 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 no error was found in the MAC.
Fresh evidence
The appellant sought to introduce as fresh evidence a statutory declaration of the appellant’s daughter, Ms Biljana Nestorovski sworn 17 March 2021, and a medical report from Dr Drew Dixon, the applicant’s medico-legal expert, dated 17 March 2021.
Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The appellant submitted that the additional evidence was admissible because it was not available prior to the assessment, could not reasonably have been obtained before then, and that it would assist the just determination of the claim.
The respondent objected, citing Lukacevic v Coates Hire Operations Pty Ltd,[1] amongst other cases.
[1] [2008] NSWCA 112 (Lukacevic).
Ms Nestorovski
The statutory declaration by Ms Nestorovski related how she read extracts from Dr Pillemer’s report to her father, who alleged that his comments by the MA had been incorrectly translated. Ms Nestorovski cited the MA’s finding that:
"Mr Velevski indicates ongoing discomfort in both heel regions, the left side worrying him more than the right and symptoms are aggravated with activity and with high temperatures and on specific questioning, provided he is not doing excessive walking, he can go for 2-3-days without any particular discomfort in his heels."
Ms Nestorovski said that her father alleged that he had discomfort in his heels for 2-3 days after excessive walking. An example was given where Mr Velevski would assist his wife with the shopping once per week, and his leg pains would consequently get worse, and have swelling for 2-3 days
Ms Nestorovski then cited a further passage from the MA, that:
"Mr Velevski is an adult man in no obvious discomfort who dresses and undresses without any particular problem, walks without an obvious limp and is able to walk on heels and toes. He showed significant restriction of back movement, only getting his fingertips as far as his knees in flexion and lateral flexion to the right is slightly more restricted than to the left."
Ms Nestorovski said that her father confirmed that he dressed and undressed slowly and cautiously and that when at home he needed assistance. Ms Nestorovski’s father, she said, was not a demonstrative man.
Ms Nestorovski referred to a further comment by the MA:
"As far as his feet and ankles are concerned, importantly there was no swelling or thickening of his tendo-Achilles on either side today and he only complained of mild discomfort to stressing tendons."
Ms Nestorovski said that her father stated that he would avoid walking and would only walk as necessary. Any walking more than that made him suffer from swelling and increased pain.
Ms Nestorovski then referred to a report of Dr Drew Dixon dated 28 January 2020. She referred to Dr Dixon’s description of Mr Velevski’s complaints and Dr Dixon’s findings on examination.
Ms Nestorovski indicated that her father confirmed that he had said “This painful” to the MA when walking heel to toe, and that the MA indicated for him to stop. The MA had then asked him where the pain was located, and Mr Velevski indicated his Achilles tendons and above.
Ms Nestorovski said that her father said that he did not specifically mention abnormal feelings in his feet and toes, because the MA did not ask him. Ms Nestorovski said that her father said that Dr Dixon did ask him questions about his swelling feet.
Decision
We are grateful for Ms Nestorovski’s input, but we are of the view that her evidence does not assist us. Apart from its inherent unreliability, it is difficult to see the relevance of Mr Velevski’s statement. The purpose of the excessive walking evidence from Mr Velevski was not inconsistent with the extract relied on; further, he agreed that he dressed and undressed slowly, and he said that did not walk much, presumably to explain the findings of the MA.
The impression gained from Ms Nestorovski’s statement was that Mr Velevski was more seriously impaired than the MA found, and that if the MA had asked the right questions, a higher WPI would have been assessed.
Such an approach overlooks the presumption of regularity that accompanies the actions of administrative decision makers, of which an MA is one.[2] It may be presumed that the MA asked all appropriate questions of Mr Velevski that were relevant to his task. Presumptions are rebuttable, but Ms Nestorovski’s evidence does not have the prima facie probative value to do so. It is flimsy, it has no independent support, and it comes from a witness translating another witness’ impressions of a conversation that had taken place some weeks earlier with a qualified medical expert. The appropriateness of the various steps involved in the assessment, including taking of the history and the complaints, is not one that either witness was qualified to comment upon. Further, Mr Velevski has an interest in the outcome of his appeal, which could carry an unconscious bias as to his recall.
[2] Jones v Registrar of the Workers Compensation Commission [2010] NSWSC 481 (Jones) at [50].
In Lukacevic v Coates Hire Operations Pty Ltd [2011] NSW CA 112, the Court of Appeal was concerned with fresh evidence that took the form of a statement by the appellant calling into question the conduct and enquiry of the AMS. The majority (Handley AJA and Hodgson JA), upheld the Appeal Panel’s decision to reject the statement upon a consideration of the policy of the legislation, and its relation to the particular matters raised in a fresh statement. Hodgson JA at [78] said:-
“A dispute by the worker as to the history set out in the Certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong of flimsy grounds. Having regard to the matters I have set out, in my opinion, it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute going to a matter relevant to the correctness of the Certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
For the above reasons there is no substantial prima facie probative value in Ms Nestorovski’s statutory declaration, and it is rejected.
Dr Dixon
It is contrary to public policy to permit further medical reports to be tendered for the purpose of cavilling with the finding of the MA.
The policy behind the workers’ compensation scheme that relates to medical assessments is to make the determination of the MA final, subject to the appeal processes provided pursuant to s 327 and s 328 of the 1998 Act.
The opinion of an MA is conclusively presumed to be correct pursuant to s 326 (1) of the 1998 Act. To allow another medical expert to modify, explain or cavil with the opinion of an MA would be to negate the intent of the scheme. To admit such a report would entail giving an opportunity to the opponent to put on evidence in response. A hearing might then have to be called before the Medical Appeal Panel to decide which of the competing views should be admitted. Such litigation relating to medical disputes would be protracted and their overall resolution delayed, thereby defeating the purpose of the Act.
As a matter of policy therefore it would negate the legislative intent if either or both sides were permitted to lodge expert opinion cavilling with the opinion of the MA.
Dr Dixon’s report was obtained to comment on the MAC and is accordingly dismissed.
EVIDENCE
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 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 appeal was directed at the 0% WPI findings by the MA in relation to the lower extremities.
The MAC
The MA took a consistent history of the onset of Mr Velevski’s problems, and noted the restrictions complained of in his heels. The MA recorded that the left lower extremity was worse on the right, and that his symptoms were aggravated with activity and high temperatures. The MA specifically enquired as to the frequency of Mr Velevski’s symptoms and was told that provided he did not do any excessive walking, Mr Velevski could go from
2 – 3 days without any particular discomfort.[3] The MA noted that Mr Velevski did go shopping with his wife and tended to lean on the trolley “because of his back.”[3] Appeal papers page 31.
In his findings on physical examination, the MA found[4]:
“Reflexes were generally depressed but present and equal, sensation is intact….
…..As far as his feet and ankles are concerned, importantly there was no swelling or thickening of his tendo-Achilles on either side today and he only complained of mild discomfort to stressing tendons.
Importantly, he has a full range of ankle and subtalar movements bilaterally which does not seem to cause him any particular discomfort today.”
[4] Appeal papers page 32.
The MA noted that MRI scans of both ankle regions on 21 January 2020 showed “chronic tendinopathy of the Achilles tendon associated with retrocalcaneal bursitis”.
In his summary the MA noted there was:
“.. A history and investigation findings in keeping with tendinopathy of both our Achilles tendon’s, but as noted at the moment he can go for 2 – 3 days at a time without any particular discomfort, there was no thickening or swelling of either tendon, the tendons were only mildly uncomfortable to palpation, and there was a full range of ankle and subtalar movements.”
The MA explained his reasons, saying: [5]
“As far as his ankles, feet and Achilles tendons are concerned, as noted, he does have a full range of ankle and subtalar movement bilaterally, with no particular swelling of his tendons, and there is therefore no basis for assessing any impairment of his right and left lower extremities at the present time. Please note that this does not indicate that he is not having intermittent ongoing symptoms; simply that AMA-5 and the WorkCover Guidelines did not allow for any assessment of impairment in the present situation.”
[5] Appeal papers page 34.
The MA considered the medical opinions that were before him. He noted the reports of Dr Drew Dixon of 2 December 2015 and 28 January 2020. He noted that Dr Dixon had found “significant impairment” from the reduced range of movement both ankle and subtalar joints. The MA said that he did not find such a reduced range of movement. He said:[6]
“It is interesting to note that [Dr Dixon] suggests stiffness of the left ankle with a 10° flexion contracture. I have particular difficulty with coming to terms with this particular finding. As noted then, my assessment of the impairment of the lower extremities differ significantly from that suggested by Dr Dixon.”
[6] Ibid.
The MA noted that no other reports before him suggested in any rateable impairment in the ankle and subtalar joints.
Submissions
The appellant took issue with the findings by the MA regarding Dr Dixon’s opinion. We were referred to Dr Dixon’s report of 28 January 2020 and his diagnoses of dysthesia on the dorsum of both feet on the distribution of the superficial perineal nerve and the medial and lateral plantar nerves of both feet.[7]
[7] Appeal papers page 142.
The appellant submitted that the MA had failed to assess and indeed had failed to “question the appellant about” Dr Dixon’s diagnoses. These failures were said to have “coloured” the MA’s approach to the formal assessment by range of motion.
The appellant noted that the MA had observed the radiology before him which included a finding of chronic tendinopathy of the Achilles tendon associated with a retrocalcaneal bursitis.
The appellant then submitted that incorrect criteria had been applied by the MA by virtue of his failure to assess any impairment caused by the “nerve deficit” and secondly that he failed to use an appropriate method for his assessment as a result of not assessing the alleged nerve damage.
The appellable error was said to be that the MA did not question or assess the nerve deficit aspect of Mr Velevski’s alleged condition. Moreover the MA had not commented on the findings by Dr Dixon that those deficits were present and contributing to the WPI. This was clear because the MA had only referred to Dr Dixon’s findings regarding range of movement and not the nerve deficit. The MA had failed to turn his mind to the nerve deficit impairment and in doing so had breached the provisions of Chapters 3.2, 3.3 and 3.5 of the Guides, which relate to the approach to be taken by an MA to assessment of the lower extremity.
The method used by the MA was also said to have been erroneous because the symptoms complained of in Dr Dixon’s report of 28 January 2020 and Mr Velevski’s statement of 23 April 2020 showed that Mr Velevski’s symptoms did not become evident until he had been walking for approximately 30 minutes. The error was said to be that the MA assessed the lower extremity without considering that factor, as we understood the submission. There should accordingly have been a modification to reflect that circumstance.
A demonstrable error further was said to have occurred because the MA did not comply with the provisions of AMA 5. Again, the basis of this submission was the failure by the MA to assess the impairment to the lower extremities caused by nerve deficit.
It was also submitted that the MA had failed to accord to Mr Velevski natural justice because he did not have regard to Dr Dixon’s opinion or Mr Velevski’s statement as mentioned above. We were referred to Dranichnikov v Minister for Immigration and Multicultural Affairs[8] in that regard.
[8] [2003] HCA 26 (Dranichnikov).
The MA was also alleged to have failed to provide reasons and we were referred to the well-known decision of Wingfoot Australia Partners Pty Ltd v Kodak[9] which is authority for the proposition that the actual path of reasoning has to be discernible in a decision maker’s determination.
Respondent
[9] [2013] HCA 43 (Wingfoot).
The respondent submitted that it was apparent from an examination of the MAC that there was no involvement of any nerve deficit when Mr Velevski was examined.
The respondent referred to the presumption of regularity that attends the actions of decision-makers and that we could presume that the MA had performed such tests as were required. The respondent submitted that matters of clinical judgement were not appellable, and that it was not the function of an MA to choose between competing medical opinions.
DISCUSSION
It can be seen that the challenge to the MAC is based on a finding by Dr Dixon, the appellant’s medico-legal expert, that was made after assessment on 28 January 2020, some 12 months prior to the assessment by the MA.
The MA was aware of Dr Dixon’s opinion, and explained why he did not agree with Dr Dixon’s conclusions. We note that the MA limited himself to a discussion of Dr Dixon’s assessment as to the reduced range of movement. It is correct that he did not address Dr Dixon’s diagnoses concerning the alleged nerve deficit.
The task of an MA is to assess an injured worker’s condition as he/she presents on the date of consultation. The date of consultation was 15 February 2021. As Mr Velevski presented on that date, examination of Mr Velevski’s ankle/foot/Achilles tendon did not demonstrate any nerve involvement. There was no swelling or thickening of the tendo – Achilles on either side, he had a full range of ankle and subtalar movements bilaterally, and did not display any particular discomfort. The MA found that sensation was intact.
An MA is not obliged to comment on every opinion that comes before him. An MA’s task is not to choose between competing medical opinions, but is to use his clinical judgement, experience and expertise to give an opinion within the applicable guidelines.[10]
[10] See discussion in Jones from [35]-[37] and at [49].
We noted with interest the appellant’s submission that the assessment ought to have included a “modification” because it was alleged that symptoms (and presumably pathological changes such as swelling and thickening of the tendo-Achilles area) did not occur until certain actions were performed – in this case excessive walking. We would observe that, whilst such a method might in some circumstances be appropriate, it was not suggested by the MA that this case was one. That decision was a matter of clinical judgement for the MA. It has not been alleged that the MA was unaware of Mr Velevski’s complaint, as he spelt it out clearly when giving his findings on examination.
Similarly, an MA is not required to discuss all the diagnoses that are expressed in the material referred to him/her. The failure by the MA to discuss Dr Dixon’s diagnosis regarding nerve deficit does not lead to a finding of fact that he therefore did not consider it. In view of his findings on examination and view of the imaging, together with his assessment of Mr Velevski, we find no error in his failure to engage with Dr Dixon’s diagnosis regarding nerve deficit. We note also that Dr Dixon’s finding of dysthesia on the dorsum of both feet on the distribution of the superficial perineal nerve and the medial and lateral plantar nerves of both feet was not supported by any other practitioner over the long history of this injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 February 2021 should be confirmed.
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