Walsh v Michael Sklovsky Pty Ltd t/as ISHKA

DETERMINATION OF APPEAL PANEL
CITATION:	Walsh v Michael Sklovsky Pty Ltd t/as ISHKA [2024] NSWPICMP 304
APPELLANT:	Tracey Walsh
RESPONDENT:	Michael Sklovsky Pty Ltd t/as ISHKA
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	21 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by concluding appellant had not achieved maximum medical improvement; whether appellant needed to be re-examined; Appeal Panel held MA erred by concluding appellant had not achieved maximum medical improvement; Appeal could correct that error and assess degree of permanent impairment of appellant based on MA’s findings, so no need to re-examine worker; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 February 2024 Tracey Walsh, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Donald Cawthorne, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
31 January 2024.
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 for 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.
Rule 128 of the Personal Injury Commission Rules 2021 (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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

On 18 February 2020 the appellant, whilst working for Michael Sklovsky Pty Ltd, the respondent, slipped in a shopping centre and injured her lumbar spine.
Her solicitors arranged for her to be examined by general vascular and trauma surgeon
Dr Patrick on 9 December 2022. In a report dated 19 January 2023 Dr Patrick advised the appellant's solicitors that he assessed the appellant had 12% whole person impairment (WPI) from her injury. Relying on that report of Dr Patrick, the appellant claimed compensation from the respondent's insurer for permanent impairment from her injury.
Upon receipt of that claim, the insurer organised for the appellant to be examined by orthopaedic surgeon Dr Ron Haig on 30 March 2023. On 3 April 2023 Dr Haig reported to the insurer that he assessed the appellant had 0% WPI from her injury. Following receipt of that report the insurer notified the appellant on 30 May 2023, pursuant to s 78 of the 1998 Act, that it denied liability for her claim.
The appellant then commenced proceedings in the Personal Injury Commission (Commission). A delegate of the President of the Commission referred the matter to the Medical Assessor on 27 October 2023. The Medical Assessor examined the appellant on
10 January 2024 and, as said, issued the MAC on 20 February 2024. In that, at paragraph 10d, he certified the appellant’s impairment is permanent and that the degree of her permanent impairment is fully ascertainable. Notwithstanding that, and notwithstanding that he had conducted a physical examination of the appellant's permanent impairment and recorded his findings relating to that in the MAC, he did not assess the degree of the appellant's permanent impairment from her injury.
It seems to the Appeal Panel that, when the MAC is read as a whole, that the Medical Assessor certified the degree of the appellant's permanent impairment is fully ascertainable, he did not consider it was because he also expressed his view that the appellant had not achieved maximum medical improvement. In other words, the Medical Assessor’s certification that the appellant’s permanent impairment is fully ascertainable seems to have been an obvious error on his part, based on what he otherwise said in the MAC. What he actually meant to certify was that the appellant’s permanent impairment is not fully ascertainable.
It also seems that because the Medical Assessor was of that view, he exercised his discretion under s 322(4) of the 1998 Act to decline to assess the degree of the appellant's permanent impairment.
The reason the Medical Assessor provided in the MAC for concluding that the appellant had not achieved maximum medical improvement was that he considered conservative treatments the appellant had previously undergone for her injury, specifically physiotherapy and exercise physiology, would resolve back pain that she was presently experiencing. The Medical Assessor recorded the pain the appellant was presently experiencing in her back felt like pressure and warmth around her back, which radiated into her buttocks, especially on the right side.

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 Procedural Direction PIC7.
In her application to appeal against the medical assessment the appellant requested she be re-examined by a member of the Appeal Panel who is a Medical Assessor. She did not however in her written submissions expand on why she should be re-examined, other than to say that it is required.
The respondent in a letter to the appellant’s solicitors dated 12 March 2024, which was attached to its notice of opposition, advised that the respondent consented to a re-examination by Medical Assessor of the Appeal Panel.
Section 324(1) and (3) of the 1998 Act when read together provide an Appeal Panel with a discretion to require a worker to submit him or herself for examination by a Medical Assessor who is a member of the Appeal Panel. Further rule 128 of the Personal Injury Commission Rules 2021 and cl 50 of PID 7 make it clear that an Appeal Panel determines what procedure it ought to adopt to determine the appeal and, hence, confirms the discretion the Appeal Panel has under s 324 to require whether it should or should not re-examine a worker. Simply put, it is a matter for the Appeal Panel to consider whether it should re-examine a worker. Important to the exercise of its discretion is the attitude of the parties relating to this, which in this case is that the appellant requests a re-examination (without however explaining why this should occur) and the respondent consents to it.
There is however a cost to the system, that is to the State of New South Wales, to conduct an examination. An objective of the 1998 Act is that the system be fair, affordable and financially viable. An object of the Commission is to ensure that the Commission can resolve the parties’ issues in a cost-effective way. The guiding principle of the Commission, as set out in s 42 of the Personal Injury Commission Act 2020, includes that the real issues in the proceedings between the parties be resolved in a just, quick and cost-effective way. Clause 51 of PID7, in effect, extends that principle to proceedings before an Appeal Panel. Rule 127 does so explicitly.
The appellant has not taken issue with any aspect of the Medical Assessor’s clinical examination of her. Nor has the respondent. The Appeal Panel considers that the Medical Assessor’s clinical examination of the appellant covered all relevant matters, with the exception of one detail, which the Appeal Panel has set out below under “findings and reasons”.
Nor has either party challenged the findings the Medical Assessor made from his clinical examination of the appellant, and is apparent to the Appeal Panel, which is an expert panel, that his findings are reliable and are sufficient to enable the Appeal Panel to assess the appellant's permanent impairment from her injury.
Saying the above in another shorter way, there is no substantive error with the Medical Assessor's clinical examination or with his findings from that examination, with the exception of one matter which makes no difference to the outcome.
For reasons the Appeal Panel will explain below, the Appeal Panel is satisfied that the Medical Assessor did make an error in considering that the appellant had achieved maximum medical improvement and not assessing the degree of the appellant's permanent impairment from her injury, which is the issue the appellant has agitated in her appeal, but the Appeal Panel is able to correct that error based on the findings the Medical Assessor made from his examination of the appellant. Given that, there is simply no need therefore for the Appeal Panel to have one of its members who is a Medical Assessor to re-examine the appellant, which would only add a cost to the system and also delay the outcome.

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.

SUBMISSIONS

The appellant made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. The respondent did not make any submissions.
In her submissions, the appellant noted that the Medical Assessor concluded that her condition was not stable because conservative measures of treatment had previously resolved her pain. The appellant submitted that that was irrelevant because pain is not a factor by which the degree of her permanent impairment from her injury to her lumbar spine is assessed.
The appellant submitted that the Medical Assessor failed to make enquiry regarding whether she would undertake the treatment that he considered would relieve her pain. The appellant submitted that she is unable to afford that treatment.
The appellant submitted that any relief from pain she obtained from the treatment the Medical Assessor considered she should have would not eliminate her impairment even if it eliminated her symptoms.
The appellant submitted there is additional information, in the form of a statement she signed on 19 February 2024, in which she states, in substance, that she is no longer entitled to compensation for medical expenses and she is unable to afford physiotherapy and exercise physiology.

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.
The appellant's statement of 19 February 2024 contains additional relevant information because it relates to the issue of her receiving future physiotherapy and exercise physiology. The Medical Assessor’s conclusion that the availability of this treatment for the appellant ultimately resulted in his declining to assess the degree of the appellant's permanent impairment from her injury. However, that additional information was available to the appellant prior to the medical assessment certificate. That is to say, prior to the medical assessment, she was aware she would no longer be having that treatment because she would be unable to afford it. Given this was within her knowledge, she could have provided evidence of that in a statement prior to the medical assessment certificate. Consequently the ground provided in s 327(3)(b) of the 1998 Act is not made out.
Further, the Appeal Panel is unable to receive into evidence her statement under s 328(3) of the 1998 Act with respect to its consideration of the other grounds for appeal which she relied on are established. This is again because this evidence was available to her before the medical assessment.
The Appeal Panel accepts the appellant’s submission that the pain she suffers from her injury is irrelevant to the assessment of the permanent impairment she has from her injury. Consequently, any relief from that pain that she might obtain by undergoing physiotherapy and exercise physiology, which the Medical Assessor considered would benefit her by relieving her pain, is irrelevant to whether her permanent impairment is fully ascertainable.
The degree of the appellant’s permanent impairment relating to her lumbar spine injury is, in accordance with Chapter 4 of the Guidelines, to be assessed by reference to the criteria set out in Chapter 15 of AMA5. Paragraph 4.1 of the Guidelines stipulates that the assessment is to be done by reference to the criteria within Chapter 15 of AMA5 relating to diagnosis-related estimates (DREs). Table 15-3 of AMA 5 provides that criteria with respect to rating impairment due to lumbar spine injury. It is apparent from the criteria set out within that table that radicular symptoms are relevant to assessing impairment due to a lumbar spine injury, but pain of itself is not.
The Appeal Panel considers that irrespective of whether the appellant would or would not have further treatment that might provide relief of her pain, the likelihood is, noting that the Medical Assessor’s examination of her occurred approximately four years after she suffered injury, her impairment will remain the same into the foreseeable future.
The Medical Assessor consequently erred by finding that the appellant had not achieved maximum medical improvement and erred by not assessing the degree of the appellant’s permanent impairment from her injury. It follows that the MAC contains a demonstrable error.
That being the case, the Appeal Panel must revoke the MAC and correct that error.
The Medical Assessor's findings from his examination of the appellant were:
“Ms Walsh was noted to rise from a chair slightly gingerly and had some mild guarding whilst in the standing position of the lower spine.
Her range of motion of the spine was 60° forward flexion, 10° extension, 20° left lateral bend and 10° right lateral bend. Her straight leg raise was 50° on the left and 50° on the right which elicited buttock pain.
She had grade 5 power on myotomes from L3-S1 and she was able to walk on tip toes and heel without issue. Her sensation was intact from L2-S2 dermatomes. She had 2+ knee jerk, 2+ ankle jerk and down going plantars bilaterally.”
The Medical Assessor also noted that an MRI of the appellant's spine done on 27 August 2020 revealed a minor disc bulge at L4/5 and L5/ S1 but potential for irritation of the exiting right L4 nerve route at L4/5.
The Medical Assessor's examination did not include any finding relating to whether the appellant had muscle wasting or atrophy of her lower limbs. The fact that the Medical Assessor did not record any finding regarding this indicates that he most likely did not examine the appellant for that. It was an error for him not to have done so, but ultimately, as the Appeal Panel will explain below, the fact that there is no finding regarding whether the appellant had muscle wasting makes no difference to the outcome in this matter. Repeating the substance of what the Appeal Panel set out under “preliminary review”, because this error makes no difference to the outcome there was no need for the Appeal Panel to re-examine the appellant.
The Medical Assessor’s findings reveal that the appellant does not meet the criteria set out in paragraph 4.27 of the Guidelines to allow a finding to be made that radiculopathy is present. The Medical Assessor’s findings reveal that the appellant's reflexes are symmetrical, and consequently the appellant does not have loss or asymmetry of reflexes. The Medical Assessor's findings reveal that the appellant has grade 5 power on myotomes from L3 to S1 and that she was able to walk on tiptoes and heels without issue. That indicates the appellant does not have muscle weakness that is anatomically localised to a spinal nerve root distribution.
The Medical Assessor’s findings revealed that the appellant's sensation was intact from the L2-S2 dermatomes. That reveals the appellant does not have reproducible impairment of sensation that is anatomically localised to a spinal nerve root distribution.
Given those finding, the appellant did not meet one of the major criteria in paragraph 4.27 of the Guidelines, which, and to repeat, means she could not be found to have a radiculopathy.
For completeness, the Appeal Panel also notes that the Medical Assessor also found that the appellant achieved straight leg raise of 50 degrees on the left and 50 degrees on the right which indicates that she did not have positive nerve root tension. Further, the findings from the MRI scan do not accord with any of the clinical signs that the appellant exhibited.
Because the appellant did not meet any of the major criteria of paragraph 4.27, she could not be found to have radiculopathy irrespective of whether or not she had muscle wasting. Consequently, and to repeat, the failure of the Medical Assessor to examine the appellant for that, and the Appeal Panel not knowing whether the appellant has or has not muscle wasting, makes no difference to the outcome in this matter.
The Medical Assessor's findings revealed that the appellant exhibited muscle guarding and had asymmetry of motion of her spine. Given that, the appellant met the criteria for DRE lumbar category II, which allows an assessment of between 5 and 8% WPI, depending upon the effect the appellant's injury has on her activities of darling living.
With respect to that, the Appeal Panel notes from the MAC that the appellant has pain with some movements when getting dressed and toileting and showering, but she is able to perform those tasks independently. She avoids activities such as hanging clothes on a clothes line. Her back pain also affects her activities of leisure. Given that, the Appeal Panel considers that it is appropriate in accordance with paragraph 4.33 of the Guidelines that 2% WPI be added to the base of 5% WPI allowed under Table 15-3 of AMA5.
Consequently, when the Appeal Panel corrects the error in the MAC it assesses the appellant has 7% at WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
31 January 2024 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

Matter number:	W7309/23
Applicant:	Tracey Walsh
Respondent:	Michael Sklovsky Pty Limited t/as ISHKA

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Donald Cawthorne 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)

Lumbar spine

18/2/2020

Chapter 4.

Paragraphs 4.27, 4.33-4.35

Chapter 15,

Table 15-3

Total % WPI (the Combined Table values of all sub-totals)

[2024] NSWPICMP 304

21 May 2024