Woolworths Group Limited v Mikhael
[2023] NSWPICMP 421
•29 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Woolworths Group Limited v Mikhael [2023] NSWPICMP 421 |
| APPELLANT: | Woolworths Group Limited |
| RESPONDENT: | John Mikhael |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Peter Heathcote |
| DATE OF DECISION: | 29 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against assessments of reproductive system and urinary system: whether Medical Assessor (MA) had complied with the requirement in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th ed 1 March 2021 (Guidelines) regarding objective neurological findings in both systems; whether MA had given adequate reasons; Held – MA had erred in relying on a lumbar scan that did not show objective evidence of spinal cord, cauda equina or bilateral nerve root disorder; chapter 4.26 of the Guidelines required the same for the reproductive system, and chapter 4.23 required the same objective evidence to establish a neurogenic bladder disorder; MA reasons inadequate to explain his assessment pursuant to chapter 7.8; Medical Assessment Certificate revoked and lesser impairment certified for impairment of urinary system. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 November 2022 the appellant, Woolworths Group Limited, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Garvey, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 October 2022.
The Medical Assessor had earlier assessed Mr Mikhael (the respondent) and found in a MAC dated 24 November 2021 that Mr Mikhael’s condition had not reached maximum medical improvement. The original referral also sought an assessment in relation to the lumbar spine, which was assessed by Dr Neil A Berry on 24 November 2021. Dr Berry assessed 7% impairment to the lumbar spine.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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.
Rule 128 of 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 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, 4th ed
1 March 2021 (the Guidelines) 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 28 September 2022, a delegate of the President referred this matter for WPI assessments caused by injury to the urinary and reproductive system on 19 December 2014.
The referral itself was not in the usual form by which the delegate of the President refers matters. We shall refer further to this issue in these reasons.
Mr Mikhael was employed as a cashier/console operator when on 19 December 2014 he injured his back. Investigations were carried out and during 2015 he was given physiotherapy and chiropractic treatment. He underwent a right facet joint block by Dr David Manohar, Interventional Pain Physician on 16 February 2016.[1]
[1] Appeal papers page 451.
The Medical Assessor took a history that Mr Mikhael developed incontinence in July 2016, but more contemporaneous accounts put the onset in February 2016,[2] and Mr Mikhael indicated that he worked on in pain until approximately April 2016, when he developed incontinence and accordingly ceased work.[3] Urologist Dr Paul Manohar noted that on 20 June 2016 was “still” having problems with incontinence, and we note a diary dated 10 June 2016 recording Mr Mikhael’s urinary problems on that day. Indeed, the Medical Assessor himself noted Mr Mikhael’s statement that the onset of his incontinence occurred in approximately April 2016. In view of the issues raised, this inconsistency is of no moment, save perhaps to demonstrate some inattention to detail.
[2] Per Dr Powell, appeal papers page 579.
[3] Appeal papers page 65.
The Medical Assessor assessed 22% impairment to the urinary system, and 9% impairment to the reproductive system.
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.
The appellant employer requested a re-examination of the worker by a Panel MA. Whilst a demonstrable error was established, a re-examination was not required, as the evidence needed to re-assess Mr Mikhael’s condition was before us.
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 appellant employer appealed against the assessments of both the urinary system and the reproductive system.
PRELIMINARY
The referral
The referral was unusual. Under the word “brief” the following appeared:
“2. BRIEF
The brief provided to the Medical Assessor includes
1. the Application and attached documents
2. the Reply and attached documents
3. Request for restoration dated 23 August 2022 and attached reports -
1. Medical report of Dr Pascal Mancuso, Urological and Robotic Surgeon, dated 18 August 2022;
2. Report of Dr Pascal Mancuso dated 15 December 2021,18 March 2022, 26 May 2022, 23 June 2022 and 21 July 2022;
3. Report – Renal Tract Ultrasound of Dr Nazanin Zarerad dated 7 May 2022;
4. PSA – Pathology Results dated 11 March 2022;
5. Report – MRI Prostate of Dr Phil Vladica dated 31 January 2022.”
(As written.)
It can be seen that the font differs within the form, and that the Medical Assessor was asked to consider a “request for restoration dated 23 August 2022….” We would observe in passing that Medical Assessors do not have the power to order a “restoration.” Nonetheless, the material listed at paragraph 3 of the referral was forwarded to the Medical Assessor, who acknowledged receipt by referring to it in his MAC.
The MAC
The Medical Assessor took a sufficiently consistent history, examined Mr Mikhael, and noted the investigations and other medical opinions before him. The Medical Assessor took a further history of events subsequent to his 2021 MAC.
As indicated, some of the investigations and opinions he listed were the fresh evidence listed at paragraph 3 of the referral.[4]
[4] Appeal papers pages 25-26 and 29.
At [7] of his MAC the Medical Assessor diagnosed:
“Neurogenic bladder and urinary incontinence
Erectile dysfunction
Pudendal neuralgia”
At [10a] of the MAC the Medical Assessor gave the reasons for his assessment:
“Diagnostic imaging confirms evidence of bilateral lumbosacral nerve root dysfunction which qualifies Worker for assessment of sexual dysfunction under Clause 4.26 on page 26 of the SIRA guides and Clause 4.23 on page 26 of the SIRA guides for neurogenic bladder disorder: October 15, 2015 MRI/CT lumbar spine: L5/S1 disc protrusion contacting S1 nerve roots without significant compression or displacement. In addition, there is history of nocturnal enuresis 2-3 times per week and the history of dysfunctional sexual intercourse every 5-6 months.”
(As written)
The Medical Assessor explained his calculations at [10b]:
“Maximum Medical Improvement has now been reached. The Worker has nocturnal enuresis 2-3 times per week meriting 24% WPI under Clause 7.8 on page 39 of the SIRA guides. He has reduced sexual function with varying degrees of difficulty of erection, ejaculation and sensation meriting 10% WPI under Table 7-5, on page 156 of AMA5.”
At [10c], the MAC has a templated question seeking a Medical Assessor’s “brief comments” regarding other medical opinions and the reasons why his opinion differed, where applicable. The Medical Assessor referred to reports from Dr Edward Korbel, urologist, dated 28 February 2017 and 16 February 2021. The Medical Assessor repeated the findings of Dr Korbel, but made no comment as to why his opinion differed. Dr Korbel assessed 16% WPI pursuant to Chapter 7.8, page 39 of the Guides.
The Medical Assessor also noted the report of Dr Robert Wines, urologist, dated 31 August 2020. Similarly, the Medical Assessor summarised Dr Wines report but again made no comment as to why his opinion differed. Dr Wines, the Medical Assessor said, also assessed 16% WPI pursuant to Chapter 7.8, page 39 of the Guides.
SUBMISSIONS
The appellant employer submitted that the Medical Assessor had fallen into error in his assessment of both the reproductive system and the urinary system.
Regarding the reproductive system assessment, it was submitted that the terms of Chapter 4.26 of the Guides did not support Medical Assessor’s assessment. We were referred to the evidence in that regard.
The urinary system assessment was also flawed, it was argued, because the terms of Chapter 4.23 of the Guides also did not support the assessment. It followed that there was no basis for a diagnosis of neurogenic bladder disorder, and the Medical Assessor had erred in proceeding to an assessment of urinary incontinence pursuant to Chapter 7.8 of the Guides.
Both systems, reproductive and urinary, had accordingly been made without evidentiary foundation and were erroneous.
The appellant employer submitted in the alternative that if an assessment of the urinary system was found to be warranted, it was unclear as to how the Medical Assessor had applied the provisions of Chapter 7.8 in finding a 24% impairment. His reasons were therefore inadequate and did not show his path of reasoning.
Mr Mikhael
Mr Mikhael outlined the history of this matter. He referred to the Medical Assessor’s previous MAC and stated that the Medical Assessor had now found maximum medical improvement, as Mr Mikhael had undergone the investigations that the Medical Assessor had recommended.
Mr Mikhael accurately reproduced the ground relied on by the appellant employer, He then referred to Merza v Registrar Workers Compensation Commission[5] to confirm the definition of a demonstrable error as being one that was readily apparent from an examination of the MAC and the referral.
[5] [2006] NSWSC 939.
It followed, Mr Mikhael said, that no error, “let alone a readily apparent error” had been established by the appellant employer.
We were referred to large portions of the MAC. Mr Mikhael submitted that the employer could not dispute the findings of the MRI/CT scan of 15 October 2015. Mr Mikhael submitted that the other radiological investigations relied on by the appellant employer did not record the pathology found on the 15 October 2015 scan. There was, it was submitted, a neurological explanation in the reasons of the Medical Assessor for the symptoms and for the clinical presentation.
Mr Mikhael submitted that the missing objective evidence complained about by the appellant employer was in fact the evidence requested by the Medical Assessor in the 2021 MAC. Mr Mikhael’s submissions then addressed the urinary system and the additional evidence the Medical Assessor had obtained in answer to his request for further investigations in his 2021 MAC. The Medical Assessor had relied on those investigations to exclude other causes of Mr Mikhael’s urinary condition. We were referred to a report of Dr Pascal Manusco of 22 August in that regard.
Mr Mikhael argued that the reasons given by the Medical Assessor were adequate, and referred to his reasons for assessment regarding the application of Chapter 7.8 of the Guides and Table 7-5 of AMA5.
DISCUSSION
The referral
This is another case where professional due care and attention to detail has been sadly lacking with regard to the referral. The referral was in most unusual form, the font differed within the form, and the Medical Assessor was asked to consider a “request for restoration dated 23 August 2022….” As indicated, Medical Assessors do not have the power to order a “restoration”.
Nonetheless, the material listed at paragraph 3 of the referral was forwarded without objection to the Medical Assessor, who acknowledged receipt by referring to it in his MAC. He did not comment on the unusual terms of the referral. Indeed his recital of the terms of the referral was:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
- Date of injury: December 19, 2014
- Body parts referred: Lumbar spine, urinary and reproductive systems
- Method of assessment: Whole person impairment”
The receipt of the material listed in the referral was problematic. As we indicated, a Medical Assessor has no power to “restore,” by which we assume that Mr Mikhael both wished to have his claim restored in order for the Medical Assessor to assess his impairment, and to have admitted fresh evidence in the form of the documents listed in the referral.
Restoration is not an automatic process in the Commission. An application needs to be made and served. Similarly, if a party wishes to adduce further evidence, an application must be made. When the matter was to be restored the provisions of s 327(3)(b) of the 1998 Act were applicable, but before the Appeal Panel s 328(3) applies.
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 evidence listed in paragraph 3 of the referral was fresh evidence. It is not automatically admissible. We are not surprised that the Medical Assessor simply included the material as it had been remitted to him. No doubt he assumed that it was properly before him.
However, in the light of the forgoing, it appears that the Medical Assessor may have made a demonstrable error, in that he relied on evidence that was inadmissible at that point. As we did not hear any submissions regarding this apparent error, we accordingly express no view. In any event, we have determined on the issues raised within the appeal that the MAC must be revoked, on the issues raised before us.
The reproductive system
Chapter 4.26 of the Guides provides:
“4.26 Loss of sexual function should only be assessed where there is other objective evidence of spinal cord, cauda equina or bilateral nerve root dysfunction. The ratings are described in AMA5 Table 15-6 (pp 396–97).
There is no additional impairment rating system for loss of sexual function in the absence of objective neurological findings. Loss of sexual function is not assessed as an ADL.”
The Medical Assessor, as indicated, gave his reasons for his assessment of 32% WPI at [10a]:
“Diagnostic imaging confirms evidence of bilateral lumbosacral nerve root dysfunction which qualifies Worker for assessment of sexual dysfunction under Clause 4.26 on page 26 of the SIRA guides and Clause 4.23 on page 26 of the SIRA guides for neurogenic bladder disorder: October 15, 2015 MRI/CT lumbar spine: L5/S1 disc protrusion contacting S1 nerve roots without significant compression or displacement. In addition, there is history of nocturnal enuresis 2-3 times per week and the history of dysfunctional sexual intercourse every 5-6 months.”
(Emphasis as written).
It is apparent therefore that the Medical Assessor relied on the report of an MRI/CT scan of the lumbar spine dated 15 October 2015. The radiologist concerned reported (relevantly):[6]
“L5/Sl: Posterocentral focal disc protrusion which contacts the thecal sac and the Sl nerve roots as they arise from the thecal sac without significant compression or displacement. Disc encroaches on both neural foramina without LS root impingement.
Appearances are very similar to the previous study performed in March 2015.”
[6] Appeal papers page 138.
The earlier MRI scan had been taken on 19 March 2015. The radiologist then reported:[7]
“There is early anterior and posterior osteophyte formation, moderate disc narrowing and early profile broadbased dorsal disc protrusion at L5/Sl. No impingement of exiting or traversing nerve roots is seen at this level.”
[7] Appeal papers page 139.
We note that an MRI of the thoracolumbar spine dated 7 April 2016 demonstrated:[8]
“At the L5/Sl level there is a small posterior disc protrusion encroaching on epidural fat but without compromise of neural structures.
The remaining discs are intact.
The thoracic and lumbar neural structures are normal in appearance and the cord is of normal signal intensity and dimension.”
[8] appeal papers page 134.
Dr Balsam Darwish, neurosurgeon, to whom Mr Mikhael was referred for treatment, reported on 16 August 2016:[9]
“I reviewed the MRI scan of the lumbosacral spine from the 15th October 2015 and the 7th April 2016.
The scans showed L4/L5 and L5/S 1 disc dehydration and annular tear. There is no obvious nerve root or cauda equina compression.”
[9] Appeal papers page 443.
Significantly, Dr Neil Berry, the Medical Assessor to whom, it will be remembered, the assessment of the lumbar spine was referred, noted the MRI investigations of 19 March 2015 and 7 April 2016. His MAC of 24 November 2021 assessed 7% impairment. In giving his reasons, Dr Berry said:
“…The patient has no evidence of a loss or asymmetry of reflexes. There is muscle weakness but this is not localised to an appropriate spinal nerve root distribution. Impairment of sensation is not reproducible. There is no evidence of a positive nerve root tension sign and there is no evidence of muscle wasting. The imaging shows multiple disc protrusions without impact on the nerve roots.”
Although Mr Mikhael submitted that the 15 October 2015 MRI/CT scan findings should be accepted on the basis that the other radiology did not confirm them, he did not expand that proposition. The material we have referred to is consistent in the findings that there was no neural involvement with the pathology found.
Indeed, contrary to the submissions by Mr Mikhael, the scan findings of 15 October 2015 were consistent with those reports. The L5/S1 disc protrusion was evident on every scan, and the Medical Assessor noted that the 15 October 2015 scan commentary noted no significant compression or displacement caused by the protrusion. The medical experts on the Panel would note that contact with a nerve root where there was no compression or displacement does not amount to evidence of spinal cord, cauda equina or bilateral nerve dysfunction.
Moreover, the lack of neural compromise was confirmed by the radiologist himself when he noted that the scan’s appearance was “very similar to the previous study” of 19 March 2015. As has been seen, that study stated: “No impingement of exiting or traversing nerve roots is seen at this level.”
Mr Mikhael submitted that the Medical Assessor had given a “neurological explanation,” but again failed to develop this argument. We therefore reject that submission, as its premise does not seem self-evident.
We are satisfied that the Medical Assessor fell into error in his assessment of the reproductive system. There was no objective evidence of spinal cord, cauda equina or bilateral nerve involvement and accordingly no basis for finding that Mr Mikhael had any impairment of the reproductive system.
The urinary system
Chapter 4.23 of the Guides states:
“4.23 The cauda equina syndrome and neurogenic bladder disorder are to be assessed by the method prescribed in the spine chapter of AMA5 Section 15.7 (pp 395–98). For an assessment of neurological impairment of bowel or bladder, there must be objective evidence of spinal cord or cauda equina injury.”
Chapter 7.8 of the Guides provides:
“Urinary incontinence
7.8 Urge urinary incontinence is the involuntary loss of urine associated with a strong desire to void. Stress urinary incontinence is the involuntary loss of urine occurring with clinically demonstrable raised intra-abdominal
pressure. It is expected that urinary incontinence of a regular or severe nature (necessitating the use of protective pads or appliances) will be assessed as follows:
Stress urinary incontinence (demonstrable clinically): 11–25%, according to severity
Urge urinary incontinence: 16–40%, according to severity
Mixed (urge and stress) incontinence: 16–40%, according to severity
Nocturnal enuresis or wet in bed: 16–40%, according to severity
Total incontinence (continuously wet – eg from fistula): 50–70%
The highest scoring condition is to be used to assess impairment – combinations are not allowed.”
It can thus be seen that the Medical Assessor’s reliance on the lumbar scans of 15 October 2015 as objective evidence supporting his finding of neurogenic bladder was also erroneous, for the same reasons we have indicated with regard to the Medical Assessor’s finding of loss of sexual function. Mr Mikhael’s impairment has not been caused by a neurogenic bladder disorder.
However there can be little doubt that Mr Mikhael suffers from urinary incontinence. When his condition first appeared, Mr Mikhael was referred to Dr Paul Manohar, his urological surgeon. The reports from Dr Manohar were incomplete, but sufficiently detailed to show that on 20 June 2016 Dr Manohar diagnosed an overactive detrusor. He confirmed that diagnosis again on 1 August 2016.[10] Dr Manohar’s reports were mid treatment as each referred to a “review” of Mr Mikhael. Each report also noted that Mr Mikhael was “still having problems with urge and urge incontinence…” There was one page of a 2016 daily diary recording Mr Mikhael’s urinary problems amongst the evidence.[11]
[10] Appeal papers pages 492 and 493.
[11] Appeal Papers page 487.
We are accordingly satisfied that Mr Mikhael suffers from urinary incontinence, but there is no objective evidence that its cause is neurogenic. The evidence from Dr Manohar is consistent with Mr Mikhael’s condition being caused by an overactive detrusor, or bladder. Urge incontinence by its nature is sensate. The classic bladder dysfunction associated with cauda equina injury is painless urinary retention, not incontinence. Mr Mikhael's complaint of chronic pain and subsequent onset on overactive bladder symptoms is not consistent with cauda equina injury and is more consistent with pelvic pain and central sensitisation.
The Medical Assessor estimated 24% WPI on the basis that Mr Mikhael had a neurogenic bladder disorder and urinary incontinence. As indicated, Chapter 7.8 of the Guides allow where there is regular or severe urinary incontinence that a range of assessments is available, depending on the nature of the problem. Urge urinary incontinence and nocturnal enuresis allows a range of 16-40% according to severity.
The Medical Assessor noted that:
“…there is a leak of 2-3 teaspoons 2-3 times per week. He controls this during the day by wearing a pad and going to the toilet regularly, say every 30-45 minutes. Sometimes there is nothing to pass and sometimes there is urine and he tries to avoid drinking too much water during the daytime. At night-time, he goes to the toilet to empty his bladder before he goes to sleep and sometimes there is leakage, maximum 3 teaspoons of urine.”[12]
[12] Appeal papers page 27.
Both medico-legal experts have called for urodynamic studies to clarify the cause of Mr Mikhael’s condition,[13] but Dr Korbel reported on 26 February 2021 that Mr Mikhael has a phobia (noted by the Medical Assessor) which would prevent him from going to hospital for the test.[14] At that time his condition required four to five pads per day with day frequency every three to four hours with nocturnia. Dr Korbel assessed 16%WPI.
[13] Appeal papers pages 92-93 and 586 respectively.
[14] Appeal papers page 93.
Dr Wines reported on 31 August 2020. As indicated, the Medical Assessor stated that Dr Wines had assessed 16% WPI, but this was incorrect. Dr Wines’ diagnosis was:
“This man demonstrates psychological pain behaviour. His history would suggest his most significant urological symptom is post micturition dribble.”
Dr Wines made no impairment assessment. It would appear that the Medical Assessor inadvertently copied and pasted his comments regarding Dr Korbel’s assessment at the end of his comments as to Dr Wines’ opinion at [10c] of the MAC.
Mr Mikhael’s statement was made on 10 June 2021.[15] He reported the onset of his incontinence in or about April 2016 (at [18]), describing it as a “bladder leak.” Beyond that description, Mr Mikhael gave no details of the frequency or severity of his incontinence. He said at [23]:
“23. The medications I have been prescribed for my incontinence have not helped. Dr P Manohar told me there are no other medications he can prescribe to stop my incontinence. Dr Manohar recommended a botox injection for my incontinence. The botox injections would only give temporary relief and would need to be redone every 8 to 9 months. At this stage, I do not want to undertake these injections. ….
24. My injuries have had a significant impact on my life. I feel that I am unable to participate in my usual activities of daily living. I am in constant pain and in constant fear of having a leak. I have to wear pads now for my incontinence that I experience which I find humiliating and embarrassing.”
[15] Appeal papers page 64.
The Medical Assessor’s reasons as to his assessment of 24% for urinary incontinence were that Mr Mikhael “has nocturnal enuresis 2-3 times per week.” We regard those reasons inadequate to explain his reasoning process. Whilst the guideline allows for a range between 16% and 40%, the Medical Assessor gave no indication how he found the percentage he assessed. It is clear that where a range is given a certain amount of discretion must be permitted in the assessor, but where the injured worker’s own medicolegal specialist has assessed a lower figure (and where the Medical Assessor has erred in his reporting of the respondent expert’s assessment), some further explanation was required. Its absence is also a demonstrable error.
The above evidence indicates that Mr Mikhael’s condition, whilst an embarrassment, was not serious enough to warrant any more than a 16% assessment.
The improperly admitted evidence
We have now been supplied with copies of the fresh evidence that was inadvertently forwarded to the Medical Assessor and included in the documentation before him.
Dr Pascal Mancuso
Mr Mikhael wished to rely on six reports from Dr Pascal Manusco, urological and robotic surgeon. They were dated 15 December 2021, 18 March 2022, 26 May 2022, 23 June 2022 and 21 July 2022.
Mr Mikhael had been referred to Dr Mancuso in December 2021. In his report of 15 December 2021 Dr Mancuso noted that Mr Mikhael was experiencing “quite significant Urge Incontinence.” He noted that some tests were pending, but that they would not exclude “Detrusor Overactivity.”
On 18 March 2022 Dr Mancuso noted the above tests being “essentially normal,” which was “to be expected with Neurogenic Detrusor Overactivity.”
Dr Mancuso on 26 May 2022 noted ongoing issues with urge incontinence, “though a recent Renal Tract Ultrasound was entirely normal.” A medication trial of Betmiga was agreed.
Dr Mancuso’s reports of 23 June 2022 and 21 July 2022 were concerned with a medication trial of Vesicare.
On 18 August 2022 Dr Mancuso noted that prior to Mr Mikhael’s back injury, Mr Mikhael had “minimal pre-existing urinary symptoms.” Dr Mancuso noted Mr Mikhael’s inability to undertake any transurethral investigations such as a urodynamic assessment or a flexible cystoscopy. No anatomical source had been demonstrated following the tests, which were a prostate MRI and the renal tract ultrasound, and Dr Mancuso attributed the symptoms to the injury.
Other tests
Mr Mikhael also listed a PSA test dated 11 March 2022 amongst the fresh evidence, which was one of the tests ordered by Dr Mancuso. Similarly the results of the renal tract ultrasound referred by Dr Mancuso dated 7 May 2022 and prostate MRI scan taken on 31 January 2022 were part of the material.
Fresh evidence commentary
As indicated above, the receipt of this evidence was probably inadmissible without it having been the subject of an application to admit fresh evidence pursuant to s 328(3) of the 1998 Act. We would observe however, that its contents did not advance Mr Mikhael’s case. Dr Mancuso noted detrusor overactivity, and at one point called it neurogenic detrusor overactivity. However, an overactive bladder (OAB) and neurogenic bladder are two different conditions. OAB has multiple causes and pelvic pain syndrome is a common cause. As indicated, Mr Mikhael has complained of significant pain and we note a diagnosis of pudendal neuralgia was indeed made by the Medical Assessor. Neurogenic dysfunction is but one of many causes of detrusor overactivity. Dr Mancuso may have been positing this idea, but it has never been confirmed, and indeed we have rejected it for the above reasons.
For the reasons we have indicated we reject the suggestion that the cause of Mr Mikhael’s condition is neurogenic, and none of the fresh evidence traversed the essential difficulty with the MAC – the lack of objective support for either the loss of sexual function or neurogenic bladder disorder.
We accordingly find that the MAC must be revoked. There is no impairment assessment available regarding the reproductive system, and that assessment will be reduced to nil. As indicated, the assessment of the urinary system we reduce to 16%.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 October 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2361/21 |
Applicant: | Woolworths Group Limited |
Respondent: | John Mikhael |
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 Dr John Garvey 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) |
| Urinary system | 19/12/2014 | Chapter 4.23 Chapter 7.8 | 16% | 1/10th | 14% | |
| Reproductive system | 19/12/2014 | Chapter 4.26 | nil | Nil | ||
| Lumbar spine (Dr Berry MAC of 24/11/2021) | Lumbar spine | 7% | nil | 7% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
0
2
0