Wigley v State of NSW (Sydney Local Health District)
[2022] NSWPICMP 369
•26 September 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wigley v State of NSW (Sydney Local Health District) [2022] NSWPICMP 369 |
| APPELLANT: | Ian James Wigley |
| RESPONDENT: | State of New South Wales (Sydney Local Health District) |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr John Brian Stephenson |
| MEDICAL ASSESSOR: | Dr David Crocker |
| DATE OF DECISION: | 26 September 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Whether Medical Assessor (MA) made deduction under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 based on assumption rather than the requirements of section and NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; whether MA considered all relevant evidence with respect to the effect of worker’s injury to his lumbar spine on his activities of daily living; Appeal Panel found Medical Assessment Certificate (MAC) contained demonstrable error; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 July 2022 Ian James Wigley, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 12 July 2022.
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 s328 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 commenced employment with the State of New South Wales (Sydney Local Health District), the respondent, as a groundsman in 1995. Whilst working at the Rozelle Hospital on 22 December 2005, he suffered an injury to his lumbar spine and cervical spine when loading cut trees into a trailer. He was then 41 years of age. He had previously suffered an injury to his lumbar spine when he was around 20 years of age while working as a roof tiler. That earlier injury necessitated a two week admission into a hospital for treatment. He recovered from that injury although experienced “the odd twinge” in his back subsequently.
Orthopaedic surgeon Dr Yuk Kai Lee examined the appellant on 10 December 2021, at the request of his solicitors, and provided a report on 10 January 2022 on several aspects relating to the appellant’s injury, including the degree of permanent impairment the appellant had from his injury. Dr Lee advised that he had assessed the appellant to have 10% whole person impairment (WPI) from his injury.
The respondent’s insurer had previously arranged for the appellant to be examined by orthopaedic surgeon Dr Anthony Smith on 30 March 2017. In a report of that date to the insurer Dr Smith expressed his opinion that the appellant had suffered an aggravation of a symptomatic lumbar degenerative disease in the incident on 22 December 2005 from which he recovered after four or five months. He expressed the view that the appellant had no impairment as a result of that injury. He also expressed the view that the appellant had no symptoms “in his neck of note, so there is no impairment associated with his neck”.
On or around 2 May 2022 the appellant lodged with the Personal Injury Commission a Form 7 Application for Assessment by a Medical Assessor, seeking that a medical dispute regarding the degree of permanent impairment from his injury to his lumbar and cervical spine be referred to a medical assessor for assessment.
On 10 June 2022 a delegate of the President issued an amended referral to the MA to assess a medical dispute between the appellant and the respondent that was defined in the referral in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury : 22 December 2005
Body part/s referred: Cervical spine
Lumbar spine
Method of assessment: WHOLE PERSON IMPAIRMENT
NOTE: THIS MATTER IS REFERRED AS A THRESHOLD DISPUTE ONLY – THE
MEDICAL ASSESSOR IS TO ASSESS AS THE WHOLE PERSON IMPAIRMENT
REGARDLESS OF THE DATE OF INJURY”
The MA examined the appellant on 24 June 2022 and, as mentioned above, issued the MAC on 17 July 2022. In that he certified the appellant had 10% WPI resulting from his injury on 22 December 2005. That was comprised of 5% WPI for the appellant’s cervical spine and 5% WPI for the appellant’s lumbar spine. With respect to the assessment the MA made of the appellant’s impairment relating to his lumbar spine, the MA certified he had assessed the appellant had a total of 10% WPI relating to his lumbar spine but half of that was due to the appellant’s previous injury when working as a roof tiler. The MA therefore made a deduction under s 323(1) of the 1998 Act of half of the appellant’s overall permanent impairment relating to his lumbar spine when assessing the degree of permanent impairment the appellant had from his injury on 22 December 2005.
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 appellant to undergo a further medical examination. This is because the Appeal Panel considers no further useful clinical evidence would be obtained by examining the appellant again. The material before the Appeal Panel is sufficient for it to determine the appeal.
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 appellant’s appeal against the MAC relates to the MA’s assessment of his permanent impairment due to the injury to his lumbar spine. The history the MA obtained relevant to that included the lower back injury the appellant suffered when he was around 20 years of age while working as a roof tiler. The MA noted that the appellant was in traction for two weeks in hospital as a consequence of that injury but then returned to work. The MA noted that the appellant’s back “was generally good afterwards” and that the appellant “denied” any problem with his back after that and that prior to 22 December 2005 the appellant did not have any symptoms in his lower back.
The history the MA obtained also included that the appellant has experienced chronic back pain subsequent to his injury on 22 December 2005 that has never resolved but the appellant has not had surgery. The MA noted that the appellant described experiencing pain going down his right leg and that his symptoms had become recently worse which the appellant felt was due to a new job he started in 2017. The MA noted that the appellant has been seeing his general practitioner to monitor symptoms and has been seeing a pain specialist to manage his pain. The MA noted that the appellant rated the pain in his lower back as being “10 out of 10 and constant but worsens at time”.
The MA recorded that the appellant “is able to shower and dress” and “is able to clean and maintain his own place”. The MA noted that the appellant does not drive a car and that “there are no sports or hobbies”.
The MA correlated the findings he made from his examination of the appellant’s lumbar spine with the criteria for DRE Lumbar Category III, and there is no controversy between the parties regarding that. Given that, it serves no purpose for the Appeal Panel to recite in this Statement of Reasons the MA’s findings from his examination.
The MA noted in the MAC that he had viewed the films of a CT scan done on 30 September 2021 of the appellant’s lumbar spine and the MA briefly described in the MAC what that revealed. The MA also had regard to a report on a CT scan of the appellant’s lumbar spine done on 5 February 1998 and a report of a MRI scan done on 28 October 2021. The MA provided brief summaries within the MAC of those reports.
The MA diagnosed the injury the appellant suffered to his lumbar spine on 22 December 2005 as being “lumbar spine pain, right L5/S1 disc herniation with radiculopathy, aggravation of pre-existing L5/S1 disc herniation”.
The MA noted, with respect to his assessment of the permanent impairment the appellant had from his injury on 22 December 2005 to his lumbar spine, that given the appellant’s signs correlated with the criteria for DRE Lumbar Category III, “10-13% WPI applies”. The MA also noted “section 4.34 p.28 is used to assess ADLs”. That of course is a reference to [4.34] of the Guidelines. The MA said that the appellant lives on his own and was able to continue with homecare. The MA said “with no apparent affect on ADLs, a 0% addition applies, result in a 10% WPI”.
As mentioned above, the MA assessed that half of the appellant’s permanent impairment relating to his lumbar spine was due to the earlier injury he suffered while working as a roof tiler. The MA provided the following explanation in the MAC for his opinion:
“There was evidence of a pre-existing lower back injury with right lower extremity radiculopathy in the documentation. There was varying evidence of whether the radiculopathy remained or recovered. The presence of pathology on investigations can be present with a recovery of the radiculopathy. The documentation provided evidence that Mr Wigley was working at the Rozelle Hospital from around 1995. He worked fulltime hours and full duties and tolerated until the subject injury 22 December 2005 and then stopped working. The evidence suggests that Mr Wigley had a persistent right lower extremity radiculopathy. The determination of a radiculopathy according to SIRA Guidelines is by satisfying the criteria of section 4.27. Accordingly with this criteria, it is not possible to determine if there was a radiculopathy as per section 4.27 prior to the workplace injury. Thus, a deduction is reasonable, and the amount of deduction must be estimated based upon all of the available evidence. As the evidence indicated a pre-existing radiculopathy, to get the benefit of the doubt of a recovery, according to Table 15-3p.384 AMA 5 and DRE II is appropriate which relates to a pre-existing value of 5%. Thus a half deduction is a reasonable deduction for pre-existing impairment based upon the available evidence.”
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 MA did not adopt the correct approach to determine the deduction to be made under s 323(1) of the 1998 Act for his prior injury. The appellant submitted that the MA impermissibly assessed what the degree of his permanent impairment would have been immediately preceding the injury he suffered on 22 December 2005 and deducted that from his present impairment, which the appellant submitted was a demonstrable error.
The appellant further submitted that the MA erred with respect to the assessment the MA made of the effect of his injury had on his activities of daily living. The appellant referred to the criteria set out in [4.33]-[4.36] of the Guidelines and contended that the MA did not consider whether there was a difference in his level of activity following his injury compared to what it was before his injury. The appellant submitted that the MA wrongly limited his consideration of the matters he took into account when establishing the effect of his injury on his activities of daily living. The appellant submitted the history the MA obtained gave no “insight into any difference in activity level”.
In reply, the respondent submitted that the MA considered all the evidence so as to form his own view regarding the appellant’s impairment due to the effect his injury has on his activities of daily living. The appellant submitted that the MA was entitled to form his own expert view regarding the level of impairment. The respondent submitted that the appellant provided the MA with an adequate explanation of his capacities with respect to his daily activities and the MA used his clinical judgment to conclude that there was no impact on the appellant’s activities of daily living.
The respondent submitted that the MA applied [1.28] of the Guidelines with the deduction he made pursuant to s 323(1) for the appellant’s prior injury. The respondent submitted that the MA recorded that the medical evidence displayed a pre-existing radiculopathy which would have enabled a rating to be made based on DRE Lumbar Category II for the appellant’s prior injury, which is 5% WPI in accordance with Table 15-3 of AMA 5. The respondent submitted that the MA “noted that the likely assessment prior to the injury may have been 5% WPI”. The respondent submitted that the MA noted that to assist him to determine whether a 1/10th deduction or otherwise ought to be applied to the overall assessment. The respondent submitted that a 1/10th deduction would be at odds with the available evidence and a one-half deduction was appropriate.
The respondent submitted that the MA relied on his expertise and clinical judgment with respect to the deduction under s 323(1) and that the radiological evidence led the MA to find that the appellant’s pre-existing condition directly contributed to the WPI the appellant had from his injury. The respondent submitted that there was ample evidence before the MA, which the MA considered and to which he referred, relating to a substantial pre-existing pathology in the appellant’s lumbar spine that contributed to his impairment.
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.
There are several authorities detailing the approach a MA must take when assessing what if any deduction is to be made under s 323(1) of the 1998 Act.[1]
[1] See especially, Cole v Wenaline Pty Ltd [2010] NSWSC 78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz), Ryder v Sundance Bakehouse [2015] NSWSC526 (Ryder) and Pereira v Siemens Ltd [2015] NSWSC 1133.
The MA must firstly be satisfied that the worker has an impairment from a work injury at the time of assessment. Secondly, a worker’s prior injury or pre-existing condition or abnormality must be identified. Thirdly, it must be determined whether a proportion of a worker’s post-injury impairment is due to that prior injury or pre-existing condition. Lastly, the extent to which a worker’s post-injury impairment is due to the prior injury or pre-existing condition or abnormality must be determined.
The third stage of the process cannot be done based on assumption or hypothesis, but must be done by reference to the evidence. The evidence must be able to demonstrate that a proportion of a worker’s impairment is due to the pre-existing condition or previous injury.[2] The Supreme Court held in Ryder that the pre-existing condition that a worker has or the prior injury the worker has suffered must make a difference to the outcome in order that a worker’s impairment can be found to be due to it. Insofar as it does make a difference, there must be a deduction.
[2] See Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [86].
Further, the fourth stage can also not be done by reference to assumption unless the extent to which a deduction is to be made under s 323(1) would be too difficult or costly to determine, because of the absence of medical evidence or some other reason. In that circumstance, the deduction to be made under s 323(1) is be assumed, in accordance with s 323(2) of the 1987 Act, to be 10%. However, s 323(2) makes clear that that assumption cannot be made if it is not at odds with the evidence.
The MA has not correctly applied the fourth step in this process. The MA has assumed that because the appellant’s permanent impairment resulting from the injury the appellant suffered to his lumbar spine many years before 22 December 2005 when working as a roof tiler might possibly have been assessed as 5% WPI that half of the appellant’s overall impairment of 10% WPI following his injury on 22 December 2015 was due to his earlier injury. The MA by assuming that made an error and consequently the MAC contains a demonstrable error. The MA was required, based on the clinical evidence and not on assumption, to assess the extent to which the earlier injury contributes now to the appellant’s permanent impairment in the sense of determining the difference his earlier injury makes to the outcome now for the appellant.
The evidence clearly establishes that the appellant suffered an earlier injury and as a consequence of that had a pre-existing abnormality in his lumbar spine, being degenerative disease in his lumbar spine. That abnormality is confirmed by the report on the CT scan done on 5 February 1998. That investigation revealed a right sided disc protrusion at the level L5/S1 causing an impression on the right side of the thecal sac and high density material extending into the right lateral recess obliterating the epidural fat and likely compressing the right S1 nerve root. The CT scan done on 30 September 2021 revealed multi-level degenerative change in the lumbar spine and advanced spondylotic change at L5/S1 with a broad base posterior disc osteophyte complex narrowing the lateral recess and impinging on the ascending S1 nerve root particularly on the right. The latter scan also revealed a foraminal narrowing pronounced bilaterally at L5/S1 and with a potential existing L5 nerve root impingement. The MRI scan done on 28 October 2021 revealed similar findings.
Dr Smith in a report of 30 March 2006 noted that a CT scan done of the appellant’s lumbar spine on 28 February 2006 revealed a normal lumbar spine at L1/2, L2/3, L3/4 with annular bulge at L4/5 and an annular bulge at L5/S1 more prominent on the right and facet joint arthritis on the right and left. Orthopaedic surgeon Dr Paul Hitchen in a report of 18 July 2006 noted that an X-ray done of the appellant’s spine on 28 February 2006 revealed narrowing at the L5/S1 disc level with sclerosis of the facet joint consistent with chronic degenerative disease.
The Appeal Panel considers that prior to the appellant suffering injury on 22 December 2005 he had degenerative changes in his lumbar spine. Indeed, the injury the appellant suffered on 22 December 2005 was an aggravation of those degenerative changes. Those degenerative changes in all likelihood would have been contributed to by the injury he suffered when the appellant was around 20 years of age working as a roof tiler.
Given that his injury on 22 December 2005 was an aggravation of that pre-existing degeneration the appellant’s prior injury contributes to the permanent impairment he now suffers as a consequence of the injury on 22 December 2005. In other words, a proportion of his post injury impairment is due to that prior injury.
The appellant however, following the in-hospital treatment he initially received for his earlier injury, many years before he suffered injury on 22 December, was not troubled much by his earlier injury. In the interim he worked for many years as a groundsman doing arduous work without significant trouble from his prior injury and indeed only experiencing the occasional twinge. He did not need to consult a doctor in the period between the treatment he received for his prior injury and 22 December 2005.
In a statement the appellant signed on 22 April 2022 he said that since suffering his injury on 22 December 2005 he has had “unbearable” back pain and foot drop on his right and left side resulting in his stumbling, and that he cannot sit down or stand for long periods. He said that he has trouble putting on his shoes and socks and doing his housework.
In the Appeal Panel’s view it is simply not possible to determine precisely what proportion of the appellant’s permanent impairment now is due to the prior injury he suffered when he was around 20 years of age. As said, it cannot be assumed by virtue of the fact that he might have been assessed immediately prior to his injury on 22 December 2005 as correlating with the criteria for DRE Category II, and consequently at that as having 5% WPI from his earlier injury, that the proportion of his permanent impairment now due to his prior injury is half. That does not take into account, in the Appeal Panel’s view, the difference to the outcome that his prior injury now makes, noting that he was largely untroubled by his prior injury over the course of decades. Had he come for an assessment of permanent impairment immediately prior to his suffering the injury on 22 December 2005, it may well have been that his signs and symptoms would have correlated with the criteria for DRE Category I, in that he may not have exhibited any muscle guarding or spasm, asymmetric loss of range of motion or
non-verifiable radicular complaints. If he were to have been assessed as DRE Lumbar Category 1 then, if the method the MA adopted had been employed, there would have been no deduction under s 323(1). This just merely emphasises, as the authorities have established, that the deduction to be made under s 323(1) is not to be done by assumption, unless s 323(2) applies, but must be done by reference to the clinical evidence.As mentioned above, the proper approach is to determine to what extent his prior injury makes to his clinical outcome now in terms of his impairment.
As said, it is just not possible to determine with any precision what that is and so consequently, in accordance with s 323(2) of the Act it is to be assumed that it is 1/10th. That is not inconsistent with the evidence, noting that the appellant was largely untroubled with symptoms or signs over the course of decades since the treatment he received for his earlier injury.
Regarding the respondent’s submission that the MA when making the deduction under s 323(1) complied with [1.28] of the Guidelines, the Appeal Panel considers that that paragraph merely paraphrases s 323(1) and (2). If the Appeal Panel is wrong in that regard and it is the case that [1.28] requires a worker’s pre-injury level of impairment to be determined based on what it may have been immediately preceding the worker’s subsequent injury for which the worker’s permanent impairment is being assessed, and for that level of impairment assessed for the earlier injury to be deducted from the worker’s overall impairment, then [1.28] would be inconsistent with s 323(1) and could not be applied.[3] Simply, [1.28] of the Guidelines cannot require a greater deduction to be made under s 323(1) than what s 323(1) permits.
[3] Marks v Secretary, Department of Communities & Justice (NO2) [2021] NSWSC 616 [22]-[28].
The Appeal Panel also considers that the MA made an error with respect to his assessment of the effect of the appellant’s injury on his activities of daily living. The relevant criteria are found in [4.33]-[4.35] of the Guidelines. The assessment is not based solely on self-reporting but is to take into account all clinical findings and reports. As noted above, the appellant has been in significant pain since suffering his injury and now experiences symptoms such as drop foot on both the left and right side. The appellant’s evidence in his statement was that he has difficulty putting on his shoes and socks and doing housework. The MA noted that the appellant is able to dress himself and able to clean and maintain his own place, but the appellant’s statement indicates that he does so with difficulty. That difficulty arises as a consequence of his injury. The appellant is correct with his submission that the MA did not, as required by the Guidelines, contrast to what extent his injury has affected his ability to engage in activities of daily living with his ability beforehand. The Appeal Panel accepts that there is a difference in his activities as a consequence of his injury. In all the circumstances, the Appeal Panel considers that the effect of the appellant’s injury on his activities of daily living ought to attract an assessment of 2% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 July 2022 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: | W2715/22 |
Applicant: | Ian James Wigley |
Respondent: | State of New South Wales (Sydney Local Health District) |
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 Dr Todd Gothelf 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. Cervical spine | 22/12/05 | Chapter 4 pp 24-30 | Chapter 15, 15.6, Table 15-5, pp 392-395; DRE II | 5% | - | 5% |
| 2.Lumbar spine | Chapter 15, 15.4. Table 15-3, pp 384-388; DRE III | 12% | 1/10 | 11% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
6
0