Plaintiff v Defendants

Plaintiff v Defendants - [2018] VSC 304 - VSC 2018 case summary — Zoe

[46]

The Panel noted from the referral document that the claimant underwent an inguinal hernia repair on 7 February 2014 ('the incident'). The Panel also noted that, as a result of the incident, the claimant alleges that he sustained injuries described as 'failed hernia repair with post herniorraphy pain syndrome'.

The Panel also noted the Certificate of Assessment prepared by Dr James Rowe dated 19 March 2015 identifies the injury assessed as 'failed hernia repair with post herniorraphy pain syndrome'.

...

The Panel considered the current diagnosis with respect to his left groin pain and in particular the claimed injury of 'failed hernia repair with post herniorraphy pain syndrome'.

The Panel concluded that there is no current evidence of a recurrent left inguinal hernia, based on its own clinical examination on 6 February 2017 and the result of a postoperative inguinal ultrasound dated 27 March 2014.

...

The Panel also assessed whether there was any impairment in relation to his hernia in accordance with Section 10.9 of Chapter Ten. The Panel noted that the claimant has no palpable defect in supporting structures of the abdominal wall and no swelling in the inguinal region. The Panel then determined the appropriate level of whole person impairment, applicable for the claimant's hernia when assessed pursuant to Table 7 of Chapter Ten of the Guides.

The Panel also assessed whether there was any impairment in relation to peripheral nerve injuries pursuant to section 3.2k of Chapter Three. The Panel noted that there was no demonstrable sensory deficit in the region of any particular peripheral nerve found at the Panel's examination on 6 February 2017. The Panel also noted that the claimant's pain distribution did not correspond to any particular peripheral nerve, particularly in the region innervated by the ilioinguinal and iliohypogastric nerves, as would be expected in relation to post-herniorraphy pain syndrome.

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The Panel combined the whole person impairments in accordance with the formula in the Combined Values Chart on page 322 of the Guides and concluded that the whole person impairment resulting from the physical injury to the claimant alleged in the claim is permanent but is not more than 5%.

The Panel noted the report by Dr James Rowe, examining Occupational Physician, 19 March 2015 in which he concluded that the claimant had more than 5% whole person impairment resulting from 'failed hernia repair with post herniorraphy pain syndrome'. The Panel noted that Dr Rowe states that the claimant's scar was non tender and there was no recurrence of the hernia. Dr Rowe also states that the claimant had significant restriction of hip movements which were limited and uncomfortable. Dr Rowe also describes a vague change of sensation about the upper and outer aspect of the left thigh.

The Panel noted that Dr Rowe, while stating that 'it is an unusual assessment as the guides do not specifically address herniorraphy pain' has assessed impairment using Table 7 of Chapter Ten of the Guides and concluded that the claimant had Whole Person Impairment of greater than 5%. The Panel disagreed with Dr Rowe regarding the method of assessment as the use of this table requires that there be a 'palpable defect in the supporting structures of the abdominal wall and a slight protrusion at the side of the defect with increased intraabdominal pressure; readily reducible.' The Panel found that there was no defect in the abdominal wall and no local protrusion and concluded that the use of this section of the Guides is not appropriate in this case. The Panel also noted that Dr Rowe similarly did not find any defect in the abdominal wall in his examination.

Further, the Panel noted that Chapter 15 of the Guides - 'Pain' - is excluded from the definition of the AMA Guides pursuant to Section 28LB of the Wrongs Act 1958.

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The Panel assessed the claimant's degree of impairment based on the Panel's current clinical findings at the time of its examination on 6 February 2017 and therefore formed a different opinion to Dr Rowe regarding the level of impairment in this case.[18]

[94]

Both [medical] experts rely on the AMA Guides, Table 7, for their opinions. That table describes three classes of hernia-related impairments, with permanent whole person ratings which range from 0 to 30 %. Each class requires a 'palpable defect in the supporting structures of the abdominal wall.' In addition, class 1, with a 0% to 9% impairment, requires 'a sight protrusion at site of defect with increased abdominal pressure, readily reducible' or 'occasional mild discomfort at site of defect, but not precluding normal activity.' Class 2, with a 10% to 19% rating, requires the defect and 'frequent or persistent protrusion at site of defect with increased abdominal pressure, manually reducible' or 'frequent discomfort, precluding heavy lifting, but not hampering normal activity.' AMA Guides to the Evaluation of Permanent Impairment, 4th edition (1995) at 247. The table does not distinguish between pre and postoperative status.
A hernia is a defect. Because it is undisputed that claimant had work-related hernias, the threshold criterion for all three classes in Table 7 'palpable defect in the supporting structures of the abdominal wall' has been met. On the left, the defect that began as a work-related hernia and was surgically repaired exists in its present state as the postoperative, palpable materials and lack of tissue on the left side which leaves it vulnerable to recurrence if she lifts. To equate 'defect' with 'protrusion' would render the class 2 description of 'protrusion at site of defect' meaningless.
Once we find a defect, the question becomes whether claimant's symptoms put her in any of the three classes in Table 7. The examples provided in 10.9 are instructive. In a case for which a 0% impairment was determined, it was noted that the patient had a slight incisional hernia with no pain and no significant risk of complication. In this case, claimant has frequent discomfort and a clear risk of recurrence if she exceeds lifting restrictions. A 10% impairment was found in a man who had a unilateral enlarged protrusion and declined a surgical repair, but was willing to accept the preclusion of heavy lifting and the risk of a possible complication. In this case, claimant had bilateral hernias, the preclusion of heavy lifting, risk of possible future complications, as well as a postoperative defect.

[138]

The claimant told the Panel that he had previously had pain in his left hip for about 10 years, which had been attributed to arthritis, but he described his previous hip pain as an ache only and mentioned that the previous hip pain had a different character from this new pain.[47]

He said that when the groin and left leg pain did not improve, he tried to get back to see his surgeon but he was told that no appointment was available. He said that he attended the Emergency Department at Wodonga Hospital on at least 2 occasions for review during this period. He said that, at the hospital, they diagnosed a nerve entrapment syndrome and prescribed Lyrica although this did not help and made him feel unwell.

The Panel noted a visit dated 25 March 2014 to the Emergency Department at Wodonga Hospital in the Referral material. At this visit, the clinical notes indicated that the claimant presented with left hip pain referred to his knee which was worse on ambulation. The possibility of an obturator nerve impingement was raised by the assessing doctor, who advised the claimant to cease walking 2-3km per day.

The claimant said he eventually got an appointment to see Dr Schwalb in early April 2014 and Dr Schwalb told him that he did not think the claimant had nerve damage or that the problem related to the hernia repair and recommended ongoing exercise. The claimant said that he had an EMG performed in April 2014 which did not show any damage to the obturator nerve.

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The claimant described constant pain in the left leg radiating from the front of his left groin, towards the midline, down the front of his leg into his left knee, and that this pain has been persistent since the time of the surgery. He describes a tender area on the inside of his groin but there is no lump in his groin. He said that he has intermittent pain in his left testicle.

He describes his pain as throbbing with a burning knife-like character. He said that he does not notice any difference in the intensity of his pain between the start of the day and the end of the day although he feels very tired at the end of the day and often needs to have a sleep when he gets home after the exercise. He said that his left leg sometimes gives way when walking.

He said that, his pain has been significantly worse since December 2016, when he woke up with severe pain down the entire left leg. He said that his pain now extends below the knee as far at the outer aspect of his left ankle and has not improved since December 2016. He said that there was no further injury and he just woke up with this pain.

He said that the pain in his left leg and groin increases with walking and he can't run at all. He said that he can't bend over to pick up things and he has difficulty dressing. He said that he now needs to wear slip-on trousers and he can't pull on tighter clothes, such as jeans, without getting severe groin pain. He said that he sits down to put on his shoes and socks now but he is independent in dressing. He gets assistance from friends with housework and gardening. He said that he can't kneel or squat. He said that the pain interrupts his sleep but he can sleep on his left side comfortably.[48]

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