AMA 4 Guides Impairment Assessment - Spinal Surgery

WCV: If you have a spinal assessment coming up then you need to read
the following document. It explains the process used to access your spinal
injuries. Read it carefully and know what to expect from them and
your rights in assessments. "Knowledge is power".

Impairment Assessment Training E-Newsletter Special Edition
Issue date: Friday 7 September 2007

In The Courts
In our August edition a paper clarifying post-spinal surgery spinal impairment
assessment following the handing down of the Mountain Pine Furniture P/L
v Taylor appeal decision was promised .

This paper has now been released by the Spine Reference Group.
Clarification Regards Post-spinal Surgery Spinal Impairment Assessment
(September 2007)

In the initial instructions regarding spinal assessment for the Stream 1
Spine Impairment Assessment Course, the Spine Reference Group pointed
out that there was an imminent Court of Appeal decision on how to assess
spinal injuries which had been treated by surgery, and that we would release
a clarification via the training authority (AMA Victoria) once this occurs.

The Court of Appeal judgment in the case of Mountain Pine
Furniture P/L v Taylor delivered on 6 July 2007 upheld the
judgment of Mr Justice Bongiorno (Supreme Court decision)
that when an impairment assessment for the spine is conducted
in accordance with AMA 4, Chapter Three, DRE method, the
effects of surgery must be disregarded.

On 15 August 2007, the Minister for Finance, Workcover and the Transport
Accident Commission released a press release indicating the relevant statutes
would be amended on the basis of equity. These teaching materials will have
to be altered again once the amendments become law .

Until the foreshadowed amendments become law, the following instructions
outline how spinal injury cases treated by surgery are to be assessed.

VWA and Public Liability Assessments
This decision and the following instruction impacts your practice as an
Independent Impairment Assessor conducting assessments in accordance
with the Accident Compensation Act 1985 (VWA) and Wrongs Act 1958
(Public Liability) in the following manner.

The Guides state: “With the Injury Model surgery to treat an impairment
does not modify the original impairment estimate, which remains the same
in spite of any change in signs or symptoms that may follow the surgery and
irrespective of whether the patient has a favorable or unfavorable response to
treatment.” (3/100)

The judgment ruled that the degree of impairment of the worker must be
based on their pre-surgery state and the effects of surgery- whether
successful or unsuccessful-should be ignored. The judgment indicates that an
assessor must ensure that the effects of surgery are carefully noted so that
they can be consciously disregarded. If the worker’s condition has improved
following surgery then that improvement is to be disregarded.

Example: If a worker had documented radiculopathy before surgery and
the surgery “caused” a resolution of the radiculopathy, the impairment would
be DRE III (pre-surgical state). If the worker’s condition has become worse
following surgery to the extent that they have a higher DRE Category
impairment, the assessor must make a formal finding as to whether that
change in condition leading to a higher impairment was actually “caused by”
the surgery. If it was, then it is to be disregarded.

Example: If a worker had no documented radiculopathy before surgery
and the surgery “caused” a radiculopathy, the impairment would be
DRE II (pre-surgical state). If the worker’s condition has become worse
following surgery as part of the natural progression of the pre-surgery state
and not “caused by” the surgery, then any increase in impairment is to be
regarded as part of the original impairment assessment and pre-surgical state.

Example: If a worker had no documented radiculopathy before surgery
and following surgery there were clinical signs of radiculopathy, which the
assessor is satisfied was not “caused by” the surgery, the impairment would
be DRE III (regarded as pre-surgical state). The term “caused by” comes
directly from the judgment of Justice Bongiorno (which was subsequently
confirmed by the Court of Appeal) who said that “in this instance the word
follow is synonymous with caused by”.

Please note that “caused by” the surgery does not require an assessor to make
a finding based on negligence or error in the performance of the surgery, nor
does it imply that the assessor made such a finding. The finding is simply a
statement of opinion as to the cause of the worker’s changed state following
surgery, which is required as part of the process as indicated by the Court.

The judgment also noted that the assessor must assess the worker’s condition
at the time of his/her examination for the purposes of reaching a decision that
the worker’s condition has stabilised, so that a conclusion can then be made
that the assessed (pre-surgical state) impairment is permanent.

For the purpose of Workcover and the Wrongs Act the impairment
assessment process is therefore:

1. Document / identify the worker’s pre-surgery state.
2. Does the worker’s condition / injury fit the injury model? (DRE method of
impairment assessment). ie: Is the worker’s condition one of those listed in
table 70? If so, then the injury model (DRE method) should be used.
3. Document the post-surgery state. Identify whether there are any changes
in the worker’s signs and symptoms post-surgery compared with the pre-
surgery state.
4. If there is a change following surgery, decide whether the change
(improvement or deterioration) was actually “caused by” the surgery
so that it can be consciously disregarded.
5. Identify the worker’s current status (ie: post-surgery). Is it stable?
If yes, go ahead to assess impairment.
6. Assess the degree of impairment according to the worker’s pre-surgery
state.

To carry out the impairment assessment the assessor must have reliable
medical information about the worker’s pre-surgery state. If the assessor
considers further information is required, then the necessary information
must be obtained through the referring party.

There are a number of specific questions which arise from the
Court’s decisions.

1. How does an examiner determine the pre-operative condition
of a spinal injury, where they have not seen the person before
surgery and are faced with differing opinions in reports?

From time to time assessors may be presented with multiple reports
describing conflicting opinions regarding an injured person’s pre-operative
spinal related symptoms and signs. It is up to the assessor to make his/her
decision in such cases on balance, based on their assessment of all of the
available information. This will require weighing up of the reports and making
a decision as to what the injured person’s impairment most probably was in the
pre-operative period as close to the operation as possible.

In so doing, it is important for the assessor to describe their reasoning
and the issues which they have considered. These may include (but are
not limited to) which reports are contemporaneous to the immediate pre-
operative time, consistency of information in reports, expertise of the
examiners, and treating doctor and specialist reports.

In each case of assessment, it is up to the person performing
the assessment to make the decision on such issues, but in
doing so they must make their reasoning clear and transparent.

2. What is considered “spinal surgery”?

There is no definition in the Guides of “spinal surgery”.
There are many procedures (both diagnostic and therapeutic) on the spine
which would not normally be considered as spinal surgery. These include a
variety of injection techniques (such as facet joint and epidural injections,
diagnostic nerve blocks and nerve root injections) and procedures involving
a variety of probes (such as radiofrequency denervation and thermonuclear
annuloplasty).

The view of the reference group is that surgery means a formal incision and
either an open or arthroscopic surgical procedure resulting in anatomical
change. Examples include, but are not necessarily limited to, laminectomy,
discectomy, fusion and disc replacement procedures.

The reference group also considers that the surgical application of
a “halo brace” to immobilise an unstable cervical fracture injury should be
considered as spinal surgery.

In each case of assessment, it is up to the person performing the assessment
to make the decision on such issues, but in doing so they must make their
reasoning clear and transparent.

3. How do you assess injuries in different regions of the spine,
one of which has been surgically treated?

In traumatic injuries it is not uncommon to have different regions of the spine
affected. One injury may require surgery, where the injury of another spinal
region may not require surgery. If the injuries apply to different spinal regions
(refer last paragraph page 95), the impairment for each region must be
assessed separately. Section 3.3f (Specific Procedures and Directions) advises in
point 8 on page 101 that “If more than one spine region is impaired,
determine the impairment of the other region(s). Combine the regional
impairments using the Combined Values Chart (p.322) to express the patient’s
total spine impairment. “

Example: A patient suffers a spinal injury which includes a central cord
syndrome in the cervical spine, as well as a vertebral fracture injury in the
lower thoracic spine. There is no fracture in the cervical region and no need
for surgery at that level. The lower thoracic fracture required immediate
surgery.

The decision in the case of Mountain Pine Furniture P/L .v. Taylorrequires
that t he thoracic injury would be assessed according to the thoracolumbar
DRE applicable to the pre-surgery state. As surgery has not been performed
on the cervical spine, the injury at that level would be assessed according to
the cervicothoracic DRE applicable at the time of the impairment assessment.
The impairments applicable to the DREs of the two regions would be combined
to provide the final total spine impairment.

4. What about the assessment of related impaired bladder or
bowel function in thoracolumbar or cervicothoracic spine injuries,
when there is no pre-surgery verifiable lower extremity impairment
which meets the criteria for DRE categories VI or VII or VIII?
(see footnotes to Table 73 and 74 and references on page 105 and 107 of
chapter 3)

In this situation the Guides require the impairment assessment for impaired
bladder or bowel function to be carried out in accordance with Chapter Eleven
(the Urinary and Reproductive Systems) and Chapter Ten (the Digestive System)
respectively. Impairment is then combined with the DRE Category II – IV
impairment.

It should be noted that in the reference group’s opinion, this is a relatively
rare situation. Assessment of impairment in accordance with Chapters Ten
and/or Eleven, need to be performed by assessors who have successfully
completed the modules on the Urinary and Reproductive Systems and the
Digestive system. There are differing ways of interpreting what the footnotes
and references apply to in terms of the Mountain Pine Furniture P/L .v. Taylor
decision. One view is that the use of the criteria of Chapters Ten and/or Eleven
in conjunction with the DRE method or Injury Model would indicate their use is
limited to impairment not “caused by” surgery.

It would follow from this that the impairment due to the current or post surgical
bowel or bladder impairment should be combined with the pre-surgery DRE
Category impairment, only when the symptoms of impaired bowel or bladder
were not “caused by” surgery. ie. the symptoms of impaired bowel or bladder
function existed before the surgery.

A contrary view is: the bowel or bladder impairment in this situation is not
related to how the DRE category impairment is determined pre or post-surgery
and they are impairments assessed outside of the Injury (DRE) model, the
bowel or bladder impairments should be combined with the pre-surgery
DRE Category impairment, even if the symptoms of impaired bowel or
bladder function only arose after surgery.

As there is no legal precedent in this situation and the Court decisions did not
specifically address this issue, the spine reference group can not make specific
recommendations – other than to give the above information.

5. Are all spinal cord injuries assessed in accordance with
Chapter Three?

Most spinal cord injuries can be assessed in accordance with Chapter Three
(The Musculoskeletal System). Spinal cord injuries assessed in accordance
with the DRE method are covered by the Court rulings– ie they must be
assessed as they were pre-surgery.

The spine and neurology reference groups have agreed that in spinal
cord injury cases, sometimes the expert assessor will also assess the
impairment in accordance with Chapter 4 (The Nervous System) and
then use the higher of the two assessments. In cases where Chapter 4
is used the correct assessment is of the post-surgical state, with the
person being assessed as they are at the time of the assessment.

Example: A person with a ventilator dependent high cervical cord injury
assessed under the DRE method (Category VIII combined with V results
in an 81% whole person impairment), where as under the Chapter 4
(The Nervous System) assessment, Table 16 in Section 4.3c can result in
a 90+% whole person impairment for “patient has no capacity for
spontaneous respiration”. In this case the person is best assessed
under the Chapter Four.

6. What about spinal injury without surgery?

In cases of spinal injuries which have not been treated by surgery,
the person’s impairment must be assessed as they are at the time of the
impairment assessment examination.

TAC Position on Assessments NB. The following is the TAC position
concerning assessments.

The Transport Accident Act (TAA) specifies the requirement for
stabilisation (Section 46A) in respect of an impairment determination.
Subsection 46A(1) provides direction to the TAC in respect of how and
when an impairment assessment is to be made and what is to be assessed,
which is the stabilised injury.

Unlike the Accident Compensation Act (ACA) the TAA relies upon the AMA
Guides to delineate classes of injured persons between those who have a
critical requirement for long term benefits and those whose need for long
term financial assistance are not as critical on the basis of ongoing physical
or psychiatric impairment.

This requirement was the subject of a Supreme Court decision and careful
analysis in Bayliss v Transport Accident Commission (2004) 9 VR 267 B.
The TAC had sought the Court of Appeal’s permission to intervene in the
dispute in respect of Mountain Pine Furniture P/L .v. Taylor to allow further
agitation of issues in regard to how TAC legislation operates in conjunction
with the AMA Guides and specifically the Guides instruction in respect of
spine impairments on page 100. Mr. Taylor’s counsel opposed the request
for intervention.

The Court of Appeal rejected the TAC’s application to intervene on the
basis that the Taylor appeal was confined to Accident Compensation Act
considerations. The appeal did not consider the legislation under which
the TAC operates. The Court of Appeal’s ruling rejecting the TAC’s
application to intervene is contained in the court transcript and forms
no part of the court’s judgment.

As a result the Supreme Court’s decision in Bayliss v TAC regarding the
TAA’s requirement for post stabilisation/surgical assessment of spinal
impairment continues to be relevant and provides the appropriate legal
guidance on this issue.

The approach to be applied for spinal assessments using the injury model
in the AMA Guides 4 th edition is to assess the injured person’s current
post surgical impairment after the injuries have stabilised – ie at the time
of the injured person’s assessment.

Taken from: Impairment Assessment Training.