Applying the correct assessment for permanent loss of use of the sexual organs

Schrader v Forestry Corporation of NSW [2019] NSWWCCMA 83

In this case the Appellant (Mr Schrader), appealed against the findings of a Medical Assessment Certificate (MAC) with respect to his permanent loss of the use of sexual organs.

The dispute was subsequently referred to a Medical Appeal Panel (MAP) which determined that the MAC contained a demonstrable error.

Material Facts

The Appellant and the Respondent were parties in proceedings in the Workers Compensation Commission. The Appellant’s claim involved an impairment dispute and a medical dispute both relating to back injuries suffered by the Appellant on 12 July 1991 and 16 December 1995.

On 29 April 2003, the parties agreed to an Award being entered in favour of the Appellant, requiring the Respondent to pay lump sum compensation for 30% permanent impairment of the Appellant’s back, 20% permanent loss of the Appellant’s left leg at or above the knee, 15% permanent loss of the Appellant’s right leg at or above the knee and 10% permanent loss of the appellant’s sexual organs.

The Respondent also made weekly payments of compensation to the Appellant up until 12 December 2017. The Respondent obtained a report of Dr Breit, dated 30 March 2016, which assessed the Appellant as having 6% Whole Person Impairment (WPI), and determined that on the basis of section 39 of the Workers Compensation Act 1987 ( the 1987 Act) the Appellant was no longer entitled to receive weekly compensation payments.

On 7 May 2018, the Appellant asserted that he was a “worker with high needs” and pursuant to section 39(2), section 39 did not apply to disentitle him from weekly payments of compensation.

On 4 June 2018, based on the assessment of Dr Lowy, the Appellant claimed further lump sum compensation from the Respondent for a “further 70% permanent loss of efficient use of sexual organs”.

Due to the inability of the parties to reach an agreement, a delegate of the Registrar referred these disputes to Approved Medical Specialist (AMS) Dr O’Neill for assessment. Doing so, the Registrar stipulated that the medical dispute was in respect to the “Lumbar Spine, Cerebral and Peripheral Nervous Systems (Neurological sexual impairment)” and that the method of assessment was to be WPI in accordance with the Guidelines required under Section 322(1) of the Workplace Injury Management and Workers Compensation Act 1998 ( the 1998 Act). In addition, the Registrar stipulated that the assessment of the impairment dispute was to consider the “Back, Sexual Organs (as a result of injury(ies))” and that the method of assessment was to be the Table of Disabilities.

The AMS issued a Medical Assessment Certificate (MAC) on 14 March 2019, which was amended on 4 April 2019.

With respect to the impairment dispute, the AMS’s findings were consistent with the previous Award on 29 April 2003, except with respect to the loss of sexual organs resulting from that injury. The AMS explained that in the absence of a cauda equina syndrome, an assessment of 10% loss of use of the sexual organs as a consequence of back injuries could not be justified.

With respect to the medical dispute, the AMS assessed the Appellant to have 16% WPI. It was noted that there was no reason to substantially change the assessment of impairment reached on 29 November 2017, however unlike the earlier assessment no impairment of sexual organs was found.

On 3 April 2019, the Appellant lodged an Application to Appeal Against the Decision of the AMS. The Appeal Panel proceeded on the basis that the appeal related to the amended MAC issued on 4 April 2019.

Findings and Reasons

The appeal proceeded by way of review of the original medical assessment pursuant to section 328 of the 1998 Act.

Medical Dispute: Whole Person Impairment (WPI)

The MAP found that pursuant to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed (the Guidelines) at [7.12], when assessing permanent impairment of a worker relating to the worker’s loss of sexual function “[l]oss of sexual function related to spinal cord injury should only be assessed as impairment where there is other objective evidence of spinal cauda equina or bilateral nerve root dysfunction”. Furthermore, at [4.22] of the Guidelines it is instructed that “[f]or a cauda equina syndrome to be present there must be bilateral neurological signs in the lower limbs and sacral region … Additionally, there must be a radiological study which demonstrates a lesion in the spinal canal”.

Applying these rules for assessment, the MAP held that based on the MAC, the Appellant had no symptoms or signs of a cauda equina syndrome. Furthermore, the MAP determined that the objective evidence of the radiological findings and the AMS’s findings from clinical examination did not reveal spinal cord cauda equina or bilateral nerve root dysfunction. As a result, the MAP found that there was no basis to find the Appellant had cauda equina syndrome. Reading the MAC as a whole, the MAP determined that the AMS had provided sufficient reasons for the conclusions that the Appellant had no rateable permanent impairment due to the loss of sexual dysfunction. Therefore, the AMS’s assessment of 16% WPI was correct.

Impairment Dispute: Loss of Use of Sexual Organs

However, the MAP held that the AMS did not apply the correct criteria when assessing the impairment dispute. That is, the AMS considered that there needed to be the presence of cauda equina dysfunction in order to explain the Appellant’s loss of sexual function for the purpose of an assessment under the Table of Disabilities before the Appellant could be rated as having a permanent loss of the sexual organs. Instead, the AMS should have assessed the Appellant by considering whether the loss of ability to engage in sexual activity was in any way due to his back injury, including the pain the Appellant experienced from his back.

The MAP held that on the evidence, the Appellant was totally impotent and despite there being no definitive answer as to whether his back pain caused the impotence, it was clear that the Appellant had a loss of sexual organs as a result of the injury. The MAP considered that the Appellant had a 20% permanent loss of his sexual organs as a consequence of his back injury.

Furthermore, the MAP assessed that the Appellant’s permanent impairment of his back was the same as the AMS’s assessment, that being 30%.

The MAP held that the MAC issued on 4 April 2019 should be revoked, and a new MAC should be issued.

Implications

This case is authority for the rule that cauda equina syndrome is not necessary in order to entitle the workers to an assessment of loss of the use of sexual organs under the Table of Disabilities. It is, however, relevant to the assessment of WPI. This case highlights one of the significant differences between the different assessment schemes.

If you have any questions about a particular workers compensation matter, please contact our team by phoning 02 4929 9333 (Newcastle) or 02 8297 5900 (Sydney).