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WORKERS COMPENSATION COMMISSION

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

Matter Number: M1-2458/18

Appellant: Kellie Brandes

Respondent: NSW Department of Education and Communities

Date of Decision: 14 May 2019 Citation: [2019] NSWWCCMA 67

Appeal Panel:

Arbitrator: John Wynyard

Approved Medical Specialist: Dr Mark Burns

Approved Medical Specialist: Dr Robin Fitzsimons

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 20 August 2018 Kellie Brandes, the appellant, lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Ross Mellick, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 1 August 2018.

2. 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.

3. The Registrar 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.

4. The WorkCover Medical Assessment Guidelines set out the practice and procedure in relation to the medical appeal process under s 328 of Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4 th ed 1 April 2016 (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 and “MAC” is reference to Medical Assessment Certificate.

RELEVANT FACTUAL BACKGROUND

6. On 20 June 2018, a delegate of the Registrar referred this matter for a whole person impairment assessment of the cervical spine, central and peripheral nervous system caused by injury on 15 December 2011.

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7. Ms Brandes was employed as a teacher with the respondent and was struck by a football in the right side of her face on 15 December 2011. The blow knocked her to the ground but there was no loss of consciousness. She was taken to Campbelltown Hospital where she was assessed and observed until the early hours of the morning when she was able to go home without being admitted. She was aware of severe pain in the right side of her face and the right side of her neck accompanied by a right-sided headache with a “sharpness” in one of the crowns in the right side of her upper teeth.

8. Ms Brandes returned to full time work in January 2012 and continued until she finally ceased work on 18 December 2017. She took time off work over that period as required.

9. When she was assessed by her medico-legal referee Dr Mohammed Assem, Rehabilitation Specialist on 6 October 2017, she was still at work, performing modified duties. A significant matter of history was that in 2016, Ms Brandes had been referred to Professor Suzanne Hodgkinson, Neurologist, who suggested that Ms Brandes might be suffering from lupus involving the central nervous system. An MRI scan of the brain on 20 November 2016 disclosed pathology indicative of an underlying demyelinating vascular or metabolic disease.

10. By the time she was assessed by Dr Neil Cochrane, Neurosurgeon, for the respondent on 27 March 2018, Ms Brandes had ceased work. Dr Cochrane thought the cause was her cerebral condition for which she was undergoing treatment with Professor Hodgkinson, and for which no diagnosis had by then been reached. No further mention of this development was referred to in the evidence. No reports were lodged from Professor Hodgkinson, nor any correspondence relating to the work-up for this serious medical condition.

11. The AMS in compliance with the terms of the referral, found there to be nil WPI in respect of either the cervical spine or the central and peripheral nervous system.

PRELIMINARY REVIEW

12. 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.

13. Ms Brandes sought to be examined by a Panel AMS, but the Panel required firstly further documentation before a decision on Ms Brandes’s application could be made. On 5 December 2018, the panel issued the following direction:

“1. Pursuant to s 324(1)(b) the Panel calls for the medical records, including the results of tests pertaining to the (possible) demyelination condition, including but not limited to all of the report from Professor Suzanne Hodgkinson. Such documents are to be supplied by 21 December 2018.

2. Ms Brandes is requested to attend a re-examination with Dr Robin Fitzsimons on Tuesday 26 February 2019 at 11 am.”

14. The documents sought were not in fact produced until 14 February 2019. They consisted of:

• Reports from A/Prof Suzanne Hodgkinson:

7 April 2017 to General Practitioner

8 May 2017 to General Practitioner

22 June 2017 to General Practitioner

14 February 2018 to Dr Kent, immunologist

1 October 2018 to General Practitioner

16 January 2019 to General Practitioner

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• MRI

27 May 2016

• MRI brain and cervical spine

20 November 2016

• MRI brain and cervical spine

6 July 2017

• MRI brain

27 November 2018

• MRI on brain and cervical spine and thoracic spine

• Dr Dan O’Neill, neurologist

23 June 2018

15. Having considered that documentation, the Panel specialists determined that a re-examination was not necessary and the proposed re-examination was cancelled. The reasons for that decision are given below.

EVIDENCE

Documentary evidence

16. The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

17. The parts of the medical certificate given by the AMS that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

18. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

19. 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.

20. 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.

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The findings by the AMS

21. When she was assessed by the AMS, Ms Brandes’ present symptoms were described as a headache in the right side of her neck, right side face and head, and the posterior cervical region with extension up into the scalp and across into the frontal region - particularly on the right side. Ms Brandes said that the headache has for a number of years been particularly prone to occur in weather changes in April but it had been worse this year regardless of the climate. She said that pain in the distribution she described to the AMS had been present since the injury and were worse now than they had been closer to the end 2011.

22. Ms Brandes complained that she was aware of stiffness in the neck associated with a headache and numbness in her right arm. The numbness was much more troublesome closer to the time of the injury and has now markedly improved, occurring perhaps once a week.

23. Ms Brandes also complained of pain in the jaw on the right side and an inability to move the jaw normally, although that too was a symptom that she experienced closer to the injury and had since ceased.

24. Ms Brandes also described a stabbing pain involving the upper lip on the right side and a burning pain involving the right cheek. Those symptoms occurred perhaps twice a week and are managed by analgesic medication.

25. Ms Brandes said there is also a mood disorder associated with depression and insomnia. The mood disorder has become worse with the passage of time, as she said. She also suffered a weight loss of some 20 kg over that period of time.

26. On physical examination, the AMS noted that Ms Brandes had not exhibited any abnormality of cognition in that she had given a clear history. The AMS noted that there was evidence of psychomotor retardation.

27. Examination of the cranial nerves reveal no abnormalities, and the AMS reported that cervical movements were performed slowly in all directions without any muscle spasm. There was no wasting of any muscle group or abnormalities of contour, posture, tone, power production, co-ordination or sensation in the upper or lower extremities. Deep tendon reflexes were present and symmetrical and the plantar responses were flexible.

28. The AMS noted the investigations before him which consisted of an MRI of the cervical spine on 2 November 2012, nerve conduction studies performed on 5 July 2013, an MRI of the brain and cervical spine performed on 27 May 2016 and MRI scans of 20 November 2016 together with a CT of the facial bones performed on 21 March 2012.

29. In his summary, the AMS said1:

“Symptoms reported by Ms Brandes at the time of her visit do not establish the probability of a significant organic, neurological consequence of the injury in question involving intracranial spinal cord, cervical spine, nerve root neural or upper extremity function.

The ongoing symptoms are therefore by exclusion more likely than not consequential of non-organically based processes.”

30. In giving his reasons for assessment, the AMS noted reports of Dr Cochrane and Dr Assem.

1 MAC 4 [7]

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31. The AMS noted that Dr Assem diagnosed severe occipital neuralgia, and that there was neck pain with asymmetry of motion; in respect of both findings a WPI assessment was made by Dr Assem.

32. In referring to Dr Cochrane’s opinion, the AMS noted that an asymmetric cervical movement with pain was found by Dr Cochrane although there was no muscle guarding or muscle spasm in the cervical spine.

33. The AMS noted Dr Cochrane’s comments that the thoracic spine movement was mildly and globally restricted and also that the recorded lumbar movements were performed very slowly, and were not normal, having been described by Dr Cochrane as being “less restricted than the movements of the cervical and thoracic spine”. The AMS said “I take these details into account2”. The AMS said3:

“It does however follow from the information provided by these doctors that neither identify muscle guarding or spasm. I also did not identify asymmetric cervical movement but confirm slowness of lumbar movements which are also marginally restricted.

With regard therefore to AMA5 and the Guidelines and in relation to cervical spine, the Central and Peripheral Nervous System, I find 0% Whole Person Impairment for the cervical spine and 0% Whole Person Impairment for the Central and Peripheral Nervous System.”

34. The AMS continued his discussion regarding Dr Assem4:

“It is also necessary to remark that I respectfully disagree with Dr Assem’s opinion regarding the diagnosis of Occipital Neuralgia, which is not in keeping with the interpretation of the findings I record and the history provided in relation with the headache.

Headache should be regarded to be in a distribution consonant with muscle pain associated with increased muscle tension and therefore internally consistent with symptoms recorded involving anxiety and mood disorder by the patient together with the distribution which involves the extracranial and paracervical muscle associated with increased muscle tension.

The increased muscle tension is not arising because of organically based injury.

My examination also identifies no sensory abnormality or other motor or reflex findings examining the upper or lower extremities to raise the diagnosis possibility of an injury related impairment of the central or peripheral nervous system.”

35. As indicated above, both Dr Assem and Dr Cochrane noted the onset of a demyelinating condition. Dr Assem in his report of 6 October 2017 said:5

“Ms Brandes has complex physical, [psychological], neurological and dental problems. She believes that her condition developed as a consequence of the subject injury on 15 December 2011. She was noted to have diffuse white matter abnormalities that suggested an underlying vascular abnormality or lupus. She informed me that multiple sclerosis was excluded.”

2 MAC 5 [10a] 3 MAC 5 [10a] 4 MAC 5 [10b] 5 Appeal papers 45/46

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36. Dr Cochrane said:6

“…She states that she had good health until she developed an unusual syndrome in the latter part of 2017 with fatigue and incoordination. She believes she had a decrease in white cell count on peripheral blood testing and then brain lesions were found on MRI scan of the brain, though according to her Neurologist, Professor Suzanne Hodgkinson, these are seemingly not consistent with multiple sclerosis. Perhaps there is another inflammatory of demyelinating condition involving the brain. This remains under investigation.”

37. Dr Cochrane said further:

“...It appears to be the cerebral condition (as opposed to the work-related injury) that precludes her from returning to the work place.”

Submissions

38. Ms Brandes submitted that the AMS had fallen into error. Reference was made to Wingfoot Australia Pty Ltd v Kocak7, which contains the well-known dicta that a medical panel must explain the path of reasoning by which it reached its conclusion regarding the medical question referred to it. This path of reasoning had to be explained in sufficient detail to enable a Court to see whether or not the conclusion contained an error of law.

39. Ms Brandes alleged that the history taken of symptoms and treatment “via clinical examination independent of the medical records” was demonstrably inconsistent with the final opinion of the AMS. It was submitted that there was “no logical explanation or reason” for his determination.

40. Reference was made to s 325 of the 1998 Act, which Ms Brandes submitted was breached by an alleged failure of the AMS to set out appropriate reasons for his assessment, and to set out the facts upon which his assessment was based.

41. The AMS was alleged to have “breached jurisdiction”. We had some difficulty in ascertaining what the nature of that breach was. It seems that the thrust of this submission was that the AMS had not considered the actual circumstances of the injury itself (notwithstanding that he had taken a history of it). This led to error, it was submitted, in that “the AMS had not given any logical explanation for the lack of diagnosis or absence of comment on the injury”.

42. Reference was then made to Wikaira v Registrar of the Workers Compensation Commission NSW & Anor8 which, it was alleged, was authority for the proposition that the AMS was not required to comment on injury but only provide an assessment of impairment.

43. Reference was also made to Aircons Pty Ltd v Registrar of the Workers Compensation Commission NSW & Anor.9 Ms Brandes reproduced [20], concerning matters to be traversed by a MAC.

44. Reliance was also placed on Cornett v Plateau View Aged Care Facility & Ors10 in furtherance of a submission that the AMS was restricted by the terms of the referral in his assessment.

6 Appeal papers 134 7 [2013] HCA 43 at 55 8 [2005] NSWSC 954 (Wikaira) 9 [2006] NSWSC 22 (Aircons) 10 [2006] NSWSC 244 (Cornett)

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45. Ms Brandes then submitted that the AMS had failed to adhere to various provisions of the Guides. Firstly, it was submitted that Chapter 1.6(b) of the Guides, which require an AMS to exercise clinical judgment, had been breached. Ms Brandes submitted that the AMS had also fallen into error by breaching chapter 1.46 of the Guides, which require an accurate comprehensive and fair evaluation.

46. Chapter 1.48 had also been breached, it was submitted, as the findings and conclusions by the AMS were “controversial and far removed from the IME evidence”. It was alleged that the AMS had “a duty” to provide sufficient comprehensive reasons. Chapter 1.48 was concerned with the requirement that the assessment should provide a rationale consistent with the methodology and contents of the Guides.

47. Ms Brandes then referred to and extracted the comments made by the AMS as to “present symptoms,” which we have referred to above.11

48. Ms Brandes then submitted that, having taken those complaints, the AMS had erred in noting under the “general health” topic that Ms Brandes’ health was “good”. This is alleged to have been a “severe” inconsistency between the “findings” of the AMS and his final opinion.

49. Ms Brandes then considered the findings on physical examination by the AMS. She submitted that his comments that there was evidence of psychomotor retardation, and that cervical movement when performed slowly, needed to be clarified. It was submitted that the AMS needed to clarify “how and why his examination was conducted in this particular manner and make reference to methodology was utilised” [sic].

50. Ms Brandes pointed out that the findings by Dr Assem and Dr Cochrane showed asymmetric movement of her neck with a consequent WPI assessment, and that Dr Cochrane also found a symmetrical movement of the neck together with non-verifiable radicular complaints in the upper limb.

51. Further error was alleged to have been made by the AMS by his alleged failure to consider the impact on the activities of daily living, and we were referred to the evidence as to Ms Brandes’ restrictions. Ms Brandes submitted that the findings of the medico-legal referees were “in stark contrast” to the findings of the AMS.

52. Ms Brandes submitted that the AMS had “failed to refer to the Guidelines and any methodology in his examination and assessment of the Nervous System, despite providing very brief comments in his summary without any clear explanation or reference to the Guidelines”.

53. Ms Brandes then returned to the alleged contrast between the present symptoms recorded by the AMS and his findings on medical examination. It was submitted that the findings were inconsistent with the final opinion that a diagnosis could not be elicited.

54. Ms Brandes observed that the AMS did not refer to any tables, guidelines or methodology. This was “questionable” because the AMS’s findings were “controversial”.

55. It was alleged that the AMS had failed to refer to the criteria set out in Chapter 5 of the Guides.

56. We were referred to evidence of Dr Jessica Osborne in a report of 19 May 2017 and to the reports of Drs Assem and Cochrane.

57. Ms Brandes submitted that the AMS “could have referred to clause 5.9”.

11 At [19-23]

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58. Chapter 5.9 of the Guides provides for methodology to be used in different circumstances including neuropsychological testing. Ms Brandes suggested that such testing was appropriate where there was a traumatic brain injury. It was submitted that the AMS had fallen into error in failing to consider that scenario.

59. We were then referred to Vitaz v Westform NSW Pty Ltd12 as authority for the proposition that an AMS is required to make necessary findings and give reasons.

60. The respondent submitted that the effect of the appellant’s submission was no more than an attempt to cavil with the clinical judgment of the AMS.

Discussion

61. Ms Brandes’s submissions were very thorough. The principles referred to in the various authorities cited are tolerably well understood, and uncontroversial.

62. The referral sought an orthopaedic assessment regarding injury to the cervical spine, and a neurological opinion regarding the nervous system.

63. With regard to the assessment for orthopaedic injury, the findings on examination by the AMS, although somewhat cursory, were more fully explained when he gave his reasons for assessment at [10a] of the MAC, to which we have referred. He noted the asymmetric cervical movement found by Dr Cochrane, but specifically noted that none was identified on examination. He also referred to the other criteria necessary to establish a DRE II rating, which would entitle an injured person to at least 5% WPI. Those criteria relevantly are set out in Table 15-5 of Chapter 15.6 of AMA513:

“Clinical history and examination findings are compatible with a specific injury:

Findings may include muscle guarding, or spasm observed at the time of examination by a physician, asymmetric loss of range of motion or non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity...”

64. Although other minds may differ, we find no error in the assessment by the AMS as to whole person impairment of the cervical spine, as he had the advantage of assessing Ms Brandes in person.

65. The submission that there was a “severe inconsistency” because the AMS had noted the worker’s general health to be “good,” has some merit. The respondent submitted that in the context of the MAC the reference to “general health” is intended to refer to the general health of a worker other than the injury which was the subject of assessment. However, the general health of Ms Brandes could not be described as “good.” Ms Brandes appears to be suffering from a severe demyelinating or inflammatory condition, and lupus has been suspected. Multiple sclerosis has, according to Ms Brande’s comment to Dr Assem, been discounted, but Dr Cochrane reported in March 2018 that no diagnosis has yet been made.

66. Moreover, the symptom complex described to the AMS is consistent with the presence of an autoimmune or inflammatory condition, and is consistent with the complaints made to Dr Assem and Dr Cochrane (and indeed to the AMS). These symptoms were said by the AMS to have “non-organic” origins. The AMS acknowledged the brain scans of 27 May 2016 and 20 November 2016, saying that the May scans showed deep white matter with hyperintense signal foci with two small pontine lesions, whilst the November scans revealed the same changes with a mild increase in size.

12 [2011] NSWCA 254 (Vitaz) 13 392

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67. These changes showed the pathological basis for Ms Brande’s condition, but the AMS did not explain why they were not relevant to his conclusion that there was a “non-organic” basis for her complaints.

68. Further, the AMS did not explain his conclusion that Ms Brandes’ complaints did not establish, relevantly, a “significant organic neurological consequence of the injury” involving the “intracranial…nerve root neural …function”. Again, the opinions of Dr Assem and Dr Cochrane do raise the presence of a significant neurological condition, with which Ms Brandes’ complaints were consistent.

69. Chapter 1.6a requires an AMS to assess the permanent impairment of a claimant as he/she presents on the day of the assessment,

70. Chapter 1.6c of the Guides provides:

“In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injuries/conditions…”

71. Paragraph 8(g) in the MAC is a standard form question:

“Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury.”

72. The AMS responded “No further injury.”

73. Chapter 1.6a of the Guides requires an AMS to calculate the WPI from which a claimant is suffering on the day of the assessment, and Chapter 1.6c requires him to clarify what degree of impairment is due to the compensable injury. Accordingly, the AMS was obliged to calculate any impairment caused by the intervening demyelinating, inflammatory/ autoimmunecondition suffered by Ms Brandes.

74. There is also merit in Ms Brandes’ contention that the AMS has not disclosed the methodology by which he reached his conclusion. Chapter 5 of the Guides incorporates the provisions of Chapter 13 of AMA 5. The criteria and methodology for assessing injury to the nervous system are therein supplied. The AMS has failed to engage with the Guides at all. He has simply made general comments without any explanation as to the facts and circumstances which he considers to exclude the application of the guidelines, nor has he given any reasoning as to how those facts and circumstances have enabled him to form his opinion. The path of reasoning by the AMS is not clear at all.

75. We were referred to findings by Dr Assem and Dr Cochrane as to the complaints they recorded from Ms Brandes and the submission was then made that neuropsychological testing ought to have been obtained. An AMS has no power to order such tests. Section 324 of the 1998 Act provides:

“(1) The approved medical specialist assessing a medical dispute may:

(a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and

(b) call for the production of such medical records(including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and

(c) require the worker to submit himself or herself for examination by the approved medical specialist.”

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76. The subsection talks in terms of a record, so that any call made must relate to an existing record. There is no evidence that such neuropsychological tests have taken place.

77. The Panel was concerned at the paucity of evidence regarding the demyelinating or inflammatory/autoimmune condition suffered by Ms Brandes. It is a significant medical problem, and an AMS would not be able in our view to make a proper assessment in accordance with the Guides without an evaluation of the material relevant to the diagnosis and treatment of this condition. We find it remarkable that nothing was lodged by Associate Professor Suzanne Hodgkinson, given her involvement since 2016. Whether there is any link, as Ms Brandes believes, between her injury and the onset of that condition cannot be fully answered without that information.

78. The Panel accordingly issued the direction referred to at [13] above.

79. The Panel Specialists examined the documents that were eventually produced. Their conclusion was as follows:

“Having reviewed the initial documentation referred to the AMS and the Clinical notes of Associate Professor Suzanne Hodgkinson we note the following with respect to the claimant's head injury;

• From paragraph 5.9 of the NSW Workers Compensation guides (4th Edition) the following is stated:

o For traumatic brain injury, there should be evidence of a severe impact to the head, or that the injury involved a high-energy impact. Clinical assessment must include at least one of the following:

▪ significant medically verified abnormalities in the Glascow Coma Score scale

▪ significant medically verified duration of post-traumatic amnesia

▪ significant intracranial pathology on CT scan or MRI.

The first 2 sub points were not present as there was no loss of consciousness, no record of abnormal GCS, and no post-traumatic amnesia. The Panel particularly notes that she was able to complete her shift at school. With respect to the 3rd sub point the Panel notes that no investigations were performed at the time of the initial injury. When eventually an MRI scan of the brain was performed on 27 May 2016, the findings were not those of a traumatic brain injury, but were characteristic of inflammatory or demyelinating. brain pathology. She therefore does not fulfil the above pre-requisite requirements for WPI assessment of mental status or emotional behavioural impairment due to brain injury, as the brain imaging abnormalities cannot be attributed to brain injury and nor are either of the other two criteria present.

• From the clinical notes of A/Prof Hodgkinson the following information was derived; o The claimant was noted to have developed neutropenia

(low neutrophil count) and a type of urticaria in 2011. The neutropenia settled, but she went on to have very extensive problems with urticaria which initially settled with the use of a significant immunosuppressive, cyclosporin. The skin condition then flared as a vasculitis requiring prednisone as well as cyclosporin.

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o Her MRI scan of the brain on 27 May 2016 was significantly abnormal with bilateral deep white matter hyperintense foci with two small pontine lesions. A further MRI scan of the brain on 27 November 2018 revealed extensive white matter changes in the brain which were stable when compared with the previous study on 27 May 2016.

o It was noted that she also had oligoclonal bands present in both the serum (blood) and CSF as well as an elevated antinuclear antibody.

o In 2018, she continued to have headaches and skin problems and required further immunosuppresive medication including cyclophosphamide, Rituximab and prednisone.

o In 2019, she developed right hand numbness spreading to the elbow which improved with methylprednisolone.

From the above documentation, the Panel Specialists believe that the claimant has a systemic autoimmune inflammatory condition. It does involve her brain but has also caused bone marrow suppression and skin vasculitis (urticaria). Her treating doctors have not been able to make a definitive diagnosis of this inflammatory/autoimmune condition, but the fact of its presence is beyond reasonable doubt, and is the reason A/Prof Hodgkinson has used powerful immunosuppressive medications to treat the condition. The medical members of the Panel agrees with A/Prof Hodgkinson that Ms Brandes is unlikely to have multiple sclerosis (for the reasons she has given in her correspondence, including the presence of more systemic features), and also notes that there is a diversity of systemic autoimmune conditions and vasculitides which can involve the central nervous system. The Panel is not required to give a more precise definition of the autoimmune disorder from which Ms Brandes suffers.

The Panel also finds no causal connection between this autoimmune disorder and the closed head injury on 15 December 2011. There is no medically plausible reason for any such association.

Dr Mark Burns

Dr Robin Fitzsimons”

80. The conclusion is accordingly adopted into these reasons.

81. It follows that a re-examination is not necessary.

82. Whilst there is no requirement for an AMS to give a detailed explanation of the criteria applied, the AMS has failed to give an adequate explanation for his conclusion, and did not refer to any applicable criteria. As such, the MAC offends against the principles in Vegan14 and a demonstrable error was accordingly made. Further, a demonstrable error was made in the failure by the AMS to properly apply the Guides in accordance with Chapter 1.6.

83. Nonetheless, having made the additional enquiries, the Panel is satisfied that the assessments by the AMS should stand, although the MAC must be revoked for the reasons given above.

14 See [35] above

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84. As Ms Brandes presented on the date of assessment, 10 July 2018, she was suffering from a WPI. However, the evidence establishes that such impairment is entirely due to the intervening inflammatory/autoimmune condition, which is not compensable. To assess the WPI it has caused would involve a consideration of the multiple aspects of brain function as set out Chapter 5 of the Guides and Chapter 13 of AMA 5. It would require some investigation as to the criteria set out in Table 13 – 5, which contains six sub-components and is calculated on the basis of various personal activities and abilities.

85. Assessment accordingly would require a re-examination which in the final analysis would be irrelevant and potentially distressing for Ms Brandes. The Panel is unwilling to speculate as to what that WPI might be and accordingly will designate the letter X to represent the demyelinating condition with which she presented on the day of assessment.

86. For these reasons, the Appeal Panel has determined that the MAC issued on 1 August 2018 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE APPEAL PANEL CONSTITUTED PURSUANT TO SECTION 328 OF THE WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998.

G Bhasin Gurmeet Bhasin Dispute Services Officer As delegate of the Registrar

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WORKERS COMPENSATION COMMISSION

APPEAL PANEL MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number: 2458/18

Applicant: Kellie Brandes

Respondent: NSW Department of Education and Communities

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Ross Mellick 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

Development of subsequent demyelinating

condition

Sub-total/s % WPI (after any deductions in

column 6)

Cervical spine

15.12.11

Chapter 4 Page 24

Paragraph 4.17, 4.18,

4.19, 4.34.

Chapter 15 Pages 374-

429 Table 15-5

0% 0%

Central and Peripheral Nervous System

15.12.11 Chapter 5

Pages 31-33 Table 5.1

Chapter 13 Pages 305-

352 X X 0%

Total % WPI (the Combined Table values of all sub-totals)

0%

John Wynyard Arbitrator Dr Mark Burns Approved Medical Specialist Dr Robin Fitzsimons Approved Medical Specialist

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I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE MEDICAL ASSESSMENT CERTIFICATE OF THE APPEAL PANEL CONSTITUTED PURSUANT TO SECTION 328 OF THE WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998.