Zilco International Pty Ltd v Viles
[2024] NSWPICMP 705
•9 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Zilco International Pty Ltd v Viles [2024] NSWPICMP 705 |
| APPELLANT: | Zilco International Pty Ltd |
| RESPONDENT: | James Viles |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 9 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Assessment of the lumbar spine; the employer appealed the one-tenth deduction; Held – Medical Appeal panel found no error; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 July 2024 the employer, Zilco international Pty Ltd (the appellant), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Drew Dixon, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 June 2024.
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 assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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).
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 did not seek that the worker be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
As a result of its preliminary review, the Appeal Panel determined that the worker was not required to undergo a further medical examination because the Appeal Panel, for the reasons set out below, did not find error. Absent a finding of error the Appeal panel has no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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. They are not repeated in full, but 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 matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
• Date of injury: 5 April 2019
· Body parts/systems referred: Lumbar Spine
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying an overall impairment of 24% whole person impairment (WPI) of the lumbar spine.
The Medical Assessor made a one-tenth deduction under s 323 for pre-existing condition or abnormality leaving 22% WPI as a result of injury on 5 April 2019.
The employer appealed.
The complaint on appeal does not concern the assessment for overall impairment of 22% WPI in respect of lumbar spine but rather concerns the deduction under s 323 for any pre-existing condition abnormality or injury.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error in making a one-tenth deduction for reasons which included the following:
(a) because he did not explain why he considered that the deduction would otherwise be too difficult or costly to determine;
(b) because he did not explain why a one-tenth deduction wasn’t at odds with the available evidence;
(c) the failure to provide any reasoning as to why he considered it difficult or costly to determine the extent of the deduction and his failure address whether the one-tenth deduction was at odds with the available evidence amounts to a demonstrable error;
(d) there was sufficient evidence before the medical assessor to determine the extent of the deductible proportion and it was neither difficult or costly to determine the deductible proportion, and
(e) the Medical Assessor’s failure to consider or engage with the extensive clinical records of the Wentworthville Medical and Dental Centre amount to a demonstrable error.
The appellant sought that the Appeal Panel set aside the MAC and issue a new MAC “which provides an appropriate deduction for pre-existing conditions pursuant to section 323 deduction which is consistent with the totality of the medical evidence contained within the pleadings”.
In summary, the respondent worker Mr James Viles (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a medical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the respondent so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied.
The Medical Assessor recorded the following history:
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: He was lifting a heavy box when the internal load in the box shifted and he overbalanced and sustained an acute low back strain injury associated with subsequent right sciatica. He drove to his GP and a CT scan was arranged and he was referred to Dr Andrew Kam, neurosurgeon, who arranged for an MRI to be performed and suggested a right sided L4/5 foraminal block. This did not give sustained benefit.
He subsequently had microdiscectomy performed without sustained benefit and he had a recurrent L4/5 disc protrusion and on 9 May 2022 he had a right L4/5 minimally invasive transforaminal lumbar interbody fusion with segmental fixation at Westmead Private Hospital and was discharged from hospital on 13 May 2022. He did have some physiotherapy in the convalescent period without sustained benefit.
He was unable to return to work and required analgesia which included Tramal.
· Present treatment: He takes Panadol and Panadeine Forte for pain relief. He has finished physiotherapy treatment. He is not doing hydrotherapy. He sees his GP each month and will see his spinal surgeon as referred.
· Present symptoms: He reports persisting pain in his lower back with lumbar stiffness and has right sciatica extending through the thigh and anterolateral leg to the right great toe. He reports his back pain disturbs his sleep and repetitive bending and stooping aggravate his low back pain, as does heavy lifting carrying. His back impacts on his ability to do heavy household chores and one of his son-in-laws mows the lawns for him. He is unable to do yard work.
He has a sitting tolerance of 30 minutes, after which he tends to move about in the chair and a walking tolerance on level ground of 20 minutes and a standing tolerance of 20 minutes, provided he moves about and a driving tolerance of up to one hour, after which he has back pain. He has no recreations and is unable to play with his grandchildren because of back pain. He is unable to jog or run. He is fortunate that his automatic Volvo has heated seats which provides some comfort for his back.
· Details of any previous or subsequent accidents, injuries or condition: On
29 August 2014 he was unloading a container of rugs and during this process, which included lifting and twisting, he felt sharp pain in his right lower loin region and pain in the lumbosacral area with radiation to the upper thigh. The symptoms were constant and he had difficulty sitting. He had a CT scan at that stage which showed no bony injury and minor spondylosis and after three days, he stopped his medication and after two sessions with his chiropractor, he reported that his pain had improved by 90% in his right leg and radiculopathy had settled by 5 September 2014.He subsequently stopped taking anti-inflammatories and was able to return restricted duties on 6 September 2014 with a lifting restriction of 10kg. He subsequently returned to full duties 2 weeks later. He also has a past history of a workers compensation injury to his left knee which required successful arthroscopic surgery and right and left shoulder injuries, which were managed conservatively and settled.
· General health: His general health has included treatment for raised cholesterol and treatment for hypertension.
· Work history including previous work history if relevant: He had worked as a storeman and forklift driver for Zilco International from 2003 to 2019. He has not been able to return to work since his subject back strain injury. He holds a special High Reach/Double Reach forklift ticket.
Social activities/ADL: He lives with his wife in a townhouse with a garden and lawn and they have a dog, which he is unable to walk due to his back pain. As noted above, one of his son-in-laws does the lawns for him. He has difficulty with heavy household cleaning and lifting and carrying heavy groceries and laundry and difficulty with prolonged standing to assist with cooking, washing up, bed making and cleaning the car. He has difficulty with prolonged driving and does not play any sport. He is unable to jog or run or play football with his grandchildren.”
The Medical Assessor made the following comments in relation to special investigations:
“His investigations include a CT of the lumbar spine on 14 March 2018 which showed a broad based posterior annular disc bulge at L4/5 and a broad based herniated pulposus impacting on both L5 nerve roots at L5/S1.
MRI of lumbar spine on 4 June 2020 showed a right foraminal disc protrusion with potential compromise of the right L4 nerve root. At L5/S1 there was no disc protrusion nor foraminal stenosis. The vertebral alignment was normal. There was no pars defect nor spondylolisthesis. The facet joints were preserved.
Post-operative x-ray of the lumbar spine, which the claimant showed me on his mobile phone, showed L4/5 fusion with segmental fixation with pedicle rods and screws in good position with interbody spacer.”
His examination findings were recorded and are not the subject of dispute as the overall level of permanent impairment assessed has not been challenged on appeal.
The Medical Assessor summarised the injury and diagnosis as follows:
“• summary of injuries and diagnoses:
This claimant had a back strain injury while lifting a heavy box and sustained an L4/5 disc protrusion that did not settle with microdiscectomy and he subsequently had a minimally invasive transforaminal lumbar interbody fusion with disc spacer and allograft with segmental fixation with pedicle rods and screws. H has residual L5 radicular complaint without radiculopathy with impaction on his ADLS including foot care.
· consistency of presentation:
he was consistent in presentation.”
The Medical Assessor explained his assessment of permanent impairment of the lumbar spine at 24%. There is no complaint on appeal about this assessment.
The Medical Assessor explained where his opinion differed from other medical opinion noting he agreed with Dr Casikar the independent medical examiner (IME) qualified to provide an opinion on behalf of the appellant, deduction of one-tenth.
There is no expert opinion that was before the Medical Assessor in which the expert had made a deduction under s 323 greater than one-tenth. The appellant submits that the Medical Assessor was in error in making a deduction of one-tenth and submits a greater deduction of an unspecified extent should be made.
The Medical Assessor said there was no pre-existing condition to be taken into account under s 323 as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Lumbar spondylosis L3/4 and L5/S1
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)Nil.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s323(2) I assess the deductible proportion as one-tenth (can only be used when not at odds with the available evidence.”
The appellant submitted that the Medical Assessor was in error in so finding and he did not adequately engage with the evidence in so finding.
The appellant submitted that the Medical Assessor failed to engage with the evidence which included the clinical records.
This included the CT scan of 14 March 2018 evidencing symptomatic radiculopathy.
Dr Casikar had reviewed that scan and he considered a one-tenth deduction appropriate. The Medical Assessor agreed with him. The worker was able to engage in psychically demanding employment tasks notwithstanding the findings on the CT scan of 14 March 2018 up until the injury in April 2019 after which he was unable to work and came to a microdiscectomy which was unsuccessful in relieving his symptoms and then to spinal fusion. The impairment assessment is based on the two surgeries having taken place and the extent of the contribution of the prior condition of the spine to the overall level of permanent impairment assessed as a result of two surgeries following the 2019 injury has been appropriately taken into account in the making of a one-tenth deduction and it is not at odds with the available evidence and the Appeal panel can discern no error when the MAC is read as a whole.For these reasons, the Appeal Panel has determined that the MAC issued on 11 June 2024 should be confirmed.
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