Warburton v Rimfire Asia Pacific Pty Ltd
[2021] NSWPICMP 236
•13 December 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Warburton v Rimfire Asia Pacific Pty Ltd [2021] NSWPICMP 236 |
| APPELLANT: | David Warburton |
| RESPONDENT: | Rimfire Asia Pacific Pty Ltd |
| APPEAL PANEL: | Member Marshal Douglas Dr Brian Noll Dr Gregory McGroder |
| DATE OF DECISION: | 13 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant worker submitted Medical Assessor’s (MA) clinical examination of him was defective in that MA did not examine him for all criteria listed in [4.27] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 to determine whether he had radiculopathy; Held - Appeal Panel agreed and consequently found Medical Assessment Certificate contained demonstrable error; appellant was re-examined; findings from re-examination were adopted by the Appeal Panel; those findings did not permit a finding appellant had radiculopathy; Appeal Panel assessed the appellant’s whole person impairment the same as that which the MA had. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 31 May 2021 David Warburton (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 6 May 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant worked for Rimfire Asia Pacific Pty Ltd (the respondent) as a truck driver. On 18 December 2017 he was climbing down the side of a truck when he slipped and fell backwards landing on his legs. This resulted in his injuring his lower back and right ankle.
The appellant’s solicitors organised for him to be examined by general surgeon Dr Sikander Khan on 16 June 2020. In a report dated 16 June 2020 addressed to the appellant’s solicitors Dr Khan advised that he had examined the appellant by means of a video conference and had assessed the appellant had 12% whole person impairment (WPI) resulting from the injury the appellant suffered on 18 December 2017. That impairment related wholly to the appellant’s lumbar spine.
On 30 June 2020 the appellant’s solicitors wrote to the respondent’s insurer notifying the insurer that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 12% WPI resulting from his injury. The appellant’s solicitors provided the insurer with a copy of Dr Khan’s report.
The insurer then organised for the appellant to be examined by Orthopaedic Surgeon Dr James Powell. That occurred on 20 July 2020. Dr Powell reported to the insurer on that same date advising he had assessed the appellant had 7% WPI from his injury. Dr Powell noted in his report that his assessment differed from Dr Khan’s assessment. Dr Powell explained that that was because in his examination of the appellant he found no clinical evidence the appellant had verifiable radiculopathy at the time of examination.
On 2 September 2020 the insurer wrote to the appellant notifying him under s 78 of the 1998 Act that it denied liability to pay him the compensation he had claimed. It advised him that they did not agree that the degree of his permanent impairment from his injury was in excess of 15% WPI and that his permanent impairment from his injury was therefore less than the threshold imposed by s 65A(3) of the Act for him to be entitled to compensation. It attached a copy of Dr Powell’s report of 22 July 2020, upon which it relied to deny the appellant’s claim against if for compensation.
The appellant thereupon lodged with the Commission an Application to Resolve a Dispute seeking determination of his claim for compensation from the respondent under s 66. On 13 January 2021 the Commission referred the matter to the MA. The MA conducted an examination of the appellant on 22 April 2021. As mentioned above he issued the MAC on 6 May 2021. In that he certified the appellant had 7% WPI from his injury.
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.
Based on its preliminary review and for reasons provided below, the Appeal Panel determined that the MAC contained a demonstrable error. This meant that the Appeal Panel would have to assess the disputes that were referred for assessment.[1] The Appeal Panel considered that in order for it to be able to do that, it would need to examine the appellant. The Appeal Panel appointed Dr Gregory McGroder to do that. His report to the Appeal Panel on his examination of the appellant is set out below under findings and reasons.
[1] See Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [56]; Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 at [26]; Hearne v Spamil Discretionary Trust [2018] NSWSC 1631 at [40].
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The MA recorded in the MAC that the appellant reported suffering pain in his back that “tends to come and go”. The MA recorded the appellant experiences the pain on the left side and that it goes down to his buttock and to his left leg to the back of the knee. The MA noted that the appellant’s pain is aggravated by walking. The MA noted that the appellant is unable to sit for more than 30 minutes at a time.
The MA conducted a physical examination of the appellant and recorded his findings from that in the MAC in the following terms:
“Mr Warburton was 191 cm in height and 126 kgs in weight. He moved with normal posture and gait.
Examination was confined to the lumbar spine and lower extremities
Lumbar Spine - Examination of the back revealed that there was tenderness in the left
paraspinal muscles at the sacroiliac level. There was no muscle spasm and no flattening of the lumbar lordosis. The patient demonstrated half the normal range of flexion, a third of the normal range of extension and half the normal range of left and right rotation. Lateral flexion to the left and right was one third of the normal range.Lower Extremities - The patient was able to demonstrate 60 degrees of straight leg raising on both sides. Reflexes were generally reduced but present. There was no unilateral muscle wasting with the right leg 10 cm above the patella, measuring 50 cm and the calf 10 cm below the patella, measuring 43 cm and the left leg measuring 49 cm for the thigh, and 42 cm for the calf.
No other physical examination was carried out.”
The MA summarised within the MAC the findings of the radiological investigations the appellant has undergone.
The MA diagnosed the appellant suffered a twisting injury to his left lumbar spine that aggravated a pre-existing degenerative change at L4/5 and L5/S1.
The MA, as mentioned earlier, assessed the degree of the appellant’s permanent impairment from his injury to be 7% WPI. He provided the following explanation for his assessment:
“Mr Warburton should be assessed using the DRE methods for the assessment of the lumbar spine and I refer you to Chapter 15, Table 15-3 on page 384. The patient’s history and findings are consistent with a specific injury with muscle guarding and an asymmetric loss of motion. There are radicular complaints in the left leg, however, the criteria for radiculopathy in the NSW Workers Compensation Guidelines, in Paragraph 4.27 on page 27 are not met and therefore I place the patient in DRE Lumbar Category II which is a 5% Whole Person Impairment.
The impact of this injury on the activities of daily living is assessed using the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition and I refer you to Paragraph 4.34 and 4.35 on page 28. From the patient’s history it is apparent that he can self-care but has difficulty with inside and outside activities and therefore he is allowed a 2% Whole Person Impairment for the impact of this injury on his activities of daily living giving him a Total 7% Whole Person Impairment.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the examination the MA undertook of him was deficient in that it did not address all the relevant criteria to establish whether radiculopathy was present. The appellant submitted that the MA also did not have regard to the findings Dr Khan made relating to the presence of radiculopathy.
In reply, the respondent submitted that the MA accepted that the appellant exhibited radicular complaints in his left leg but the MA specifically stated that the criteria stipulated in the Guidelines to enable a finding that radiculopathy was present were not satisfied. The respondent submitted that the MA’s conclusion that the appellant fell within the DRE II classification was correct.
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.
Consistent with [1.6a] and [4.18] of the Guidelines, the MA was entitled to base his assessment on his findings from his clinical examination of the appellant. In other words, contrary to the appellant’s submission, the MA was not required to make his assessment by reference to any clinical findings that Dr Khan or any other doctor had made.
That said however, the Appeal Panel agrees with the appellant’s submissions to the effect that the MA’s examination of him was deficient in terms of establishing whether radiculopathy was present. The Guidelines at [4.27] require that in order that a finding can be made that radiculopathy is present two or more of the following criteria must be satisfied, one of which must be a major criteria (which are highlighted in bold):
“• loss or asymmetry of reflexes
• muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
• reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
• positive nerve root tension (AMA5 Box 15-1, p 382)
• muscle wasting – atrophy (AMA5 Box 15-1, p 382)
• findings on an imaging study consistent with the clinical signs (AMA5, p 382).”
The MA’s findings from his examination did not include any reference to the appellant’s muscle strength or sensation, each of which is major criterion for determining whether radiculopathy is present. The MA specifically stated in the MAC that, “no other physical examination was carried out”.
In order to ascertain whether or not the appellant had radiculopathy the MA’s examination of the appellant needed to address all the criteria specified in [4.27] of the Guidelines. If the appellant had both muscle weakness and sensory deficit that would be sufficient to make a diagnosis of radiculopathy, even in the absence of any of the minor criteria. If the appellant had radiculopathy, he would be assessed within the DRE Lumbar Category III, which would mean his permanent impairment would be assessed within the range of 10-13% WPI, depending on the affect his injury had on this activities of daily living.
In the circumstance where the MA did not record any findings with respect to whether or not the appellant had muscle weakness that was anatomically localised to an appropriate spinal nerve root distribution and whether or not the appellant had reproducible impairment of sensation that was anatomically localised to an appropriate spinal nerve root distribution, and noting that the MA said “no other physical examination was carried out”, the Appeal Panel considers the MA has overlooked these criteria. Saying that another way, the MA’s failure to set out any findings with respect to muscle strength and sensation is consistent with the MA having over looked it.[2]
[2] See Peachey v Bildon Pty Ltd (Quality Siesta Resort Ltd & Quality Hotel) [2020] NSWSC 781 at [50]; SZCBT v Minister for Immigration & Multicultural Affairs [2017] FCA 9 at [26].
Given that the MA in his examination of the appellant overlooked two major criteria, the Appeal Panel finds that the MAC contains a demonstrable error.
As mentioned above, because of that, the Appeal Panel must re-assess the medical dispute referred for assessment and, to that end, the Appeal Panel appointed MA Dr Gregory McGroder to do that. Dr McGroder carried out his examination on 30 November 2021 and provided the Appeal Panel with the following report:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-7375/20 |
| Appellant: | David Warburton |
| Respondent: | Rimfire Asia Pacific Pty Limited |
| Date of Determination: | 30 November 2021 |
| Examination Conducted By: | Dr Gregory McGroder |
| Date of Examination: | 30 November 2021 |
1.The workers medical history, where it differs from previous records
History conveyed to me today by Mr Warburton was as that described by the AMS at his assessment on 22 April 2021.
2.Additional history since the original Medical Assessment Certificate was performed
Mr Warburton said that he was involved in a minor road traffic accident when in an Uber on 29 July 2021. He said that the only difference was that there was a slight increase in the nerve pain in his right leg but he saw his GP who said that basically he had sustained no further injury in the accident.
Mr Warburton informed me that he had completed his course in security but has been unsuccessful in finding any work.
Mr Warburton said that his back pain has persisted and is there constantly but at the moment it is variable. He said it becomes worse when he sits or stands too much or puts any strain on the back. He feels it as a burning sensation and sometimes a cramping sensation to the left. He said when the pain becomes worse it radiates to his legs and usually down the back of the thigh, in the centre of the thigh but occasionally past his knee to his foot. He did get cramps in his left toes before but now all his toes on both legs cramp. He said that he has noted some weakness in his legs but cannot nominate a specific muscle group.
Mr Warburton said that he has now not seen his treating specialist, Dr McKechnie, since around March 2020.
3.Findings on clinical examination
Mr Warburton was of tall build. He had normal spinal alignment. He had even gait. He could walk on heels and toes. He displayed forward flexion to three-quarters of the expected range and backward extension to one-half of the expected range. Lateral movement and rotation were towards the right, three-quarters of the expected range and the left, one-half of the expected range. Straight leg raising was 70 degrees on the left and 90 degrees on the right. He could extend his legs from a seated position with some minor back discomfort but neural tension tests were negative. I couldn’t detect any wasting or specific muscle weakness involving the lower extremities. Calf circumference at maximum was 40cm bilaterally and thigh circumference measured 10cm suprapatella 52cm bilaterally. Reflexes were difficult to obtain and required reinforcement but there was no asymmetry and this involved knee, medial hamstring and ankle jerks. I could not detect any anatomically localised diminished sensation in one leg relative to the other. There was some tenderness in the paraspinal muscles in the upper lumbar area bilaterally.
4.Results of any additional investigations since the original Medical Assessment Certificate
There have been no further investigations.
Signed: Dr Gregory McGroder
Date: 30 November 2021”
The Appeal Panel considers that Dr McGroder’s examination of the appellant was thorough. The Appeal Panel adopts his findings.
Dr McGroder found from his examination the appellant had dysmetria and non-verifiable radicular complaints, and the appellant’s signs correlate with the criteria DRE Lumbar Category II. Dr McGroder’s findings do not enable a conclusion to be made that the appellant has radiculopathy in accordance with the criteria of [4.27] of the Guidelines. This is because none of the major criteria or minor criteria are present apart from a concomitant imaging study.
The Appeal Panel also considers, in accordance with [4.34] and [4.35] of the Guidelines that 2% WPI ought to be added for the impairment the appellant has on his activities of daily living from his injury. This is because the appellant has difficulty with household tasks.
There is no evidence the appellant had a pre-existing condition and, accordingly, no proportion of his impairment can be due to a non-existent pre-existing condition. In other words, s 323 of the 1998 Act is not engaged.
Hence, whilst the Appeal Panel found that the MAC contained a demonstrable error, the Appeal Panel has nevertheless assessed the appellant’s WPI from his injury to be the same as that which the MA assessed it.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 May 2021 should be confirmed.
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