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WORKERS COMPENSATION COMMISSION STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
Matter No: M1-000887/11 Appellant: Jerzy Stanislaw Carenko Respondent: BP Solar Pty Limited Date of Decision: 11 August 2011
Appeal Panel: Arbitrator: Natasha Serventy Approved Medical Specialist: John Duggan Approved Medical Specialist: Neil Berry
BACKGROUND TO THE APPLICATION TO APPEAL 1.
On 12 May 2011 Mr Carenko made an application to appeal against a medical assessment (‘the appeal’) to the Registrar of the Workers Compensation Commission (‘the Commission’). Dr Dixon-Hughes, an Approved Medical Specialist (‘the AMS’) made the medical assessment.
The matter involves a claim to entitlement under the workers compensation legislation (the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998(‘the 1998 Act’)). The WorkCover Medical Assessment Guidelines (‘the Guidelines’) set out the practice and procedure in relation to appeals.
The appellant claims, in summary, that the medical assessment certificate (MAC) by the AMS should be reviewed on the following grounds (s 327(3) of the 1998 Act):
• the assessment was made on the basis of incorrect criteria,
• the medical assessment certificate contains a demonstrable error.
The Registrar is satisfied that at least one of the grounds for appeal is made out in accordance with section 327(4) of the 1998 Act and the Registrar has referred the appeal to this Appeal Panel (‘the Panel’) for review of the original medical assessment. The appeal was made within 28 days of the date of the medical assessment.
PRELIMINARY REVIEW 5.
The Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. As a result of that preliminary review, the Panel determined that it was not necessary for Mr Carenko to undergo a further medical examination because there was sufficient information on file.
EVIDENCE Documentary Evidence 6.
The Panel has before it all the documents that were sent to the AMS for the original assessment and has taken them into account in making this determination.
Medical Assessment Certificate 7.
The parts of the MAC given by the AMS and issued on 12 April 2011 that are relevant to the Appeal are set out below:
HISTORY RELATING TO THE INJURY • Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
… (in 2002) he had to pass up to three motions a day but to make it easier he commenced taking medication, for his bowel, that he has continued to take and he said that he had become dependent upon the medication. He suffered stomach pain and this was particularly when he was trying to open his bowels. … (in 2005) He commenced taking Nexium for the "reflux" and has continued to do so. In 2007 he had suffered some rectal bleeding, when passing a motion, and because of the reflux and the rectal bleeding he had a gastroscopy and a colonoscopy. He said there was no change in the treatment after those investigations but he may have had to take more medication. • Present treatment: The only treatment for the worker’s gastro intestinal symptoms is the taking of medication. For the difficulty in opening his bowels he takes Bisalax two at night, Coloxyl with Senna two at night and he uses Dulcolax suppositories one at night. For the reflux he takes Nexium 40 mg twice daily. He takes Cymbalta for depression, Kalma for panic attacks , Lyrica and Neurontin for neuropathic pain and he takes Zocor for a raised cholesterol. No other treatment is planned. FINDINGS ON PHYSICAL EXAMINATION …Although he was thin, there was no evidence of recent weight loss, skin texture was normal and there was no evidence of jaundice or other signs suggestive of liver dysfunction. The abdomen was soft and scaphoid, there was no evidence of distended bowel loops or visible peristalsis. There was no hepatomegaly or splenomegaly and bowel sounds were normal. There was no abdominal tenderness and there were no abdominal masses or bowel spasm. … There was no evidence of perianal excoriation, the anus was normal and there was no evidence of blood mucus or slime on either digital or proctoscopic examination. Anal tone was slightly increased but within the normal range. There was moderately congested haemorrhoidal tissue, that could have been the site of bleeding, but no definite haemorrhoids, there was no evidence of an anal fissure or scarring and the motion in the rectum was soft and normal. DETAILS AND DATES OF SPECIAL INVESTIGATIONS 7 December 2007 – South Western Endoscopy – Colonoscopy Report, Gastroscopy Report –
reported Dr. George Daskalopoulos. On colonoscopy there were changes in the terminal ileum suggestive of ulceration but the histology report available to Dr Talley indicated that there was no ulceration but only eosinophilic infiltration. Several
diverticula were noted in the colon but no evidence was reported of inflammation on histological examination. The gastroscopy indicated that the oesophagus was normal, the stomach was normal, as was the duodenum to the second part.
REASONS FOR ASSESSMENT (excerpts) a. my opinion and assessment of whole person impairment Upper digestive tract At the time of my examination the only symptom, referable to the upper gastrointestinal tract, from which the worker suffered was a complaint of "occasional reflux", without any specific symptoms. There was now no symptom of heartburn or any other symptoms suggestive of oesophagitis. It is noted that the worker lost weight when his back pain became very severe but over the last 12 months he has not lost any further weight and he feels that, if he does gain weight, his back symptoms become worse. There is no record or finding diagnostic of any upper digestive tract disease, oesophagoscopy and gastroscopy were normal and there is no anatomic loss or alteration. The criteria for a Class 1 impairment are not fulfilled. The whole person impairment related to the upper digestive tract is 0%. Lower digestive tract (colon, rectum and anus) Colonoscopy was normal with a few diverticula noted. There was no clinical or colonoscopic evidence of diverticulitis or other colonic or rectal disease and digital and proctoscopic examination was normal. As there is no objective evidence of colonic or rectal disease the whole person impairment is 0%. This assessment is consistent with Example 6 -- 18, AMA Guides, Page 128 of a patient with constipation and diarrhoea and diverticulosis coli.
DECISION MADE AFTER PRELIMINARY REVIEW WITHOUT HOLDING AN ASSESSMENT HEARING 8.
The parties agreed to the determination of the matter without an Assessment Hearing.
The parties made written submissions, Mr Carenko dated 12 May 2011 and the respondent dated 30 May 2011.
10. Mr Carenko submitted that the AMS failed to take a full account of the dosage of his current
medication and failed to take account of previous medications. The AMS used an example from the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA5) and the example does not fit Mr Carenko’s situation. The AMS assigned Mr Carenko to Class 1 for both upper and lower digestive tracts and this Class is only appropriate when medication is not required. Mr Carenko needs medication and has lost weight since his injury. Even though he has lost no weight in the past year his weight is below the desirable level. The AMS failed to take account of a history of pain and bleeding from Mr Carenko’s lower digestive tract.
11. The respondent submitted in response that the AMS' methodology was correct. FINDINGS AND REASONS 12. The role of the Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW  NSWCA 116. The Court held that the Panel may
consider matters (other than those raised by the appellant) capable of coming within one or other of the section 327(3) grounds, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. Recent changes to the legislation have limited the review to matters coming within the section 327(3) grounds raised by the appellant on appeal.
13. In Campbelltown City Council v Vegan  NSWCA 284 the Court of Appeal held that
the Appeal Panel is obliged to give reasons. On the other hand the reasons need not be extensive or provide detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
14. Though the power of review is far ranging it is nonetheless confined to the matters about
15. In this matter the Registrar has determined that she is satisfied that at least one of the
grounds of appeal under section 327(3) is made out. The Panel has conducted a review of the material before it and reached its own conclusion concerning the correct assessment of the impairments and losses suffered by Mr Carenko.
16. The AMS took an adequate history and noted the dosage of some of Mr Carenko’s current
medication. It is not mandatory, or even possible in many cases, to note all dosages. Previous medications are not relevant to this assessment, although the AMS did note this in his history. The AMS used an example from the Fifth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA5) and the example was consistent with Mr Carenko’s situation.
17. The AMS assigned Mr Carenko to Class 1 for the lower digestive tract because he had no
signs of colonic or rectal disease, and this is a required finding for Class 2. The AMS conducted a thorough examination and recorded his findings. There was no evidence of pain and bleeding from Mr Carenko’s lower digestive tract on anal examination or colonoscopy. The Panel finds no error in this assessment, which is within the range of sound clinical judgement.
18. The AMS correctly assigned Mr Carenko to Class 1 for the upper digestive tract because
Mr Carenko did not have the required signs. The Panel notes also that there was very little history in relation to the upper tract and the history of symptoms was unclear.
19. For these reasons, the Panel has therefore determined that the Medical Assessment
Certificate dated 12 April 2011 given in this matter should be confirmed.
DECISION 20. For the reasons set out in this statement of reasons, the decision in this matter is that:
the Medical Assessment Certificate given in this matter should be confirmed.
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE MEDICAL APPEAL PANEL CONSTITUTED PURSUANT TO SECTION 328 OF THE WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998. FOR REGISTRAR
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