Active Crane Hire Pty Ltd v Harris
[2023] NSWPICMP 565
•9 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Active Crane Hire Pty Ltd v Harris [2023] NSWPICMP 565 |
| APPELLANT: | Active Crane Hire Pty Ltd |
| RESPONDENT: | Julian Harris |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 9 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Right upper extremity; appellant employer alleged error by the Medical Assessor (MA) in the assessment on the basis of incorrect criteria; Appeal Panel satisfied as to error; based on the examination findings of the MA (namely impingement with full range of movement with symptoms present for at least 12 months), this results in an assessment of 3% upper extremity impairment of 2% whole person impairment as a result of injury; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 June 2023 the employer Active Crane Hire (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 May 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate 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.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
It is noted that the appellant ticked the box in the formal part of the Appeal Notice that a re-examination was not sought but in the attached written submissions sought a re-examination. Accordingly, the Appeal Panel will regard the appellant as having sought that the worker be re-examined by a Medical Assessor member of the Appeal Panel. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error, there was sufficient information before the Appeal Panel for it to make a determination.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) further report of Dr Bosanquet dated 19 June 2023.
The appellant submits that the evidence is relevant to identify error in the MAC. The appellant submits that the evidence was not available and could not reasonably have been obtained because it is about the assessment by the medical assessor.
Julian Harris (the respondent) objects to the admission of the further report.
The Appeal Panel determines that the evidence should not be received on the appeal because the report is a medical report dealing with the manner of assessment. The parties, in an upfront filing system as provided by the Personal Injury Commission’s rules and practice directions, had the opportunity to provide expert medical opinions and indeed did so. Whether there is error in the assessment because it has been made on the basis of incorrect criteria is a matter for the Appeal Panel and is not matter about which the parties need to obtain further expert opinion.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
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.
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.
The matter was referred to the Medical Assessor by the Personal Injury Commission (Commission) as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 20 October 2021
· Body parts/systems referred: Right Upper Extremity
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
Body Part or system
Date of Injury
Chapter,
page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. Right upper extremity
20/10/21
Page 499
Table 16-18
15
0
15
Total % WPI (the Combined Table values of all sub-totals)
15
The employer appealed.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and made demonstrable errors which included the following:
(a) By incorrectly applying both the Workcover guides and the AMA5 Guides by conducting an assessment pursuant to section 16.7 which is not the appropriate method of assessment in this case.
(b) By not adopting the methodology prescribed in paragraphs 2.11 and 2.12 of the Workcover Guides or in section 16.7 of AMA5 to assess the worker’s WPI.
(c) By assessing the maximum of 15% whole person impairment (WPI) in accordance with Table 16-18 of the AMA5 when it was incorrect to do so.
(d) By failing to make a deduction under s 323 of the 1998 Act for a pre-existing injury condition, abnormality or injury and failing to explain why he did not make a deduction.
In summary, the worker Mr Julian Harris (the respondent) submitted on appeal that the Medical Assessor did not make a demonstrable error, did not make an assessment on the basis of incorrect criteria and the MAC should be confirmed. The respondent worker submitted that it was open to the medical assessor in the exercise of his clinical judgment to assess impairment at 15% WPI noting his diagnosis that the worker has sustained injury to the acromioclavicular joint and to use Table 16-8 of AMA5 to assess 15% WPI. The respondent worker notes that this assessment is consistent with that of Dr Harrington, the independent medical expert (IME) qualified on behalf of the respondent worker.
The Medical Assessor took a history broadly consistent with the other evidence before him which he recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: On the date of injury, Mr Harris was only a few days into a new job working for his employer. The derrick was strapped to a frame on the back of a trailer. He undid the strap and the derrick fell off the trailer, landing onto the top of his right shoulder. He estimates the derrick weighed around 200kg. As above, the injury is clearly demonstrated on CCTV footage he showed me on his phone.
He was dazed. He had global numbness in his arm. He presented to his GP at Gosford who referred him to the Emergency Department at the hospital. He says he spent some 3 days in hospital. The numbness in his arm he reports settled over the space of a couple of months.
Subsequently, he has had ongoing pain over the superior aspect of his shoulder, over the lateral aspect of his deltoid and on the right hand side of his neck.
· Present treatment: He has treatment through a Physiotherapist and a Sports Physiologist including rotator cuff program. He intermittently takes Nurofen.
· Present symptoms: He has pain over the superior aspect of his shoulder. He reports he is able to push through his pain which is activity related. It occasionally wakes him at night. If he is over active, he has a sensation of fatigue in his right arm.
· Details of any previous or subsequent accidents, injuries or condition: Nil.
· General health: Mr Harris reports he is otherwise healthy, takes no regular medications and has no allergies.
· Work history including previous work history if relevant: Nil relevant.
· Social activities/ADL: He is unable to hold his dog lead in his right hand. He avoids carrying heavy shopping bags with his right arm.”
The Medical Assessor noted of the special investigations:
“I was able to review no imaging related to the injury. Included in the documents is a report of an MRI on the shoulder from 07/12/2021. It notes contusion around the acromioclavicular joint of the right shoulder with posterior and anterior labral changes. There is evidence of an infraspinatus tear and subacromial bursitis.”
The Medical Assessor conducted a physical examination which he recorded and about which there is no complaint on appeal:
“At the commencement of the examination, Mr Harris was advised that the examination would be conducted with all movements to be within a pain free range. Although some discomfort might be experienced at end range of movement, any discomfort during the examination should be reported immediately and the movement discontinued. All movements were measured using a goniometer and confirmed by repetition, if necessary. A tape measure is used, as required. Only the active range of motion was measured in terms of allowable methodology. Passive range of motion was reserved for clinical and diagnostic reasons.
On examination, he was a well looking man in no obvious distress. There was no wasting or deformity around the shoulder girdle. Range of motion in the shoulders is symmetrical and normal. He is, however, visibly uncomfortable extending and abducting his right shoulder beyond horizontal. Impingement tests for the right shoulder are positive. The upper limbs are distally neurovascularly intact.”
The Medical Assessor summarised his diagnosis and findings as follows:
“• summary of injuries and diagnoses:
Mr Harris sustained a significant injury to his right shoulder in an injury at work. Imaging at the time demonstrates some acute changes in his acromioclavicular joint with rotator cuff and labral changes which likely pre-dated the injury.
· consistency of presentation:
Mr Harris was co-operative throughout the assessment.”
The Medical Assessor explained his impairment assessment as follows:
“My opinion and assessment of whole person impairment:
Right upper extremity: 15%.
In making that assessment I have taken account of the following matters:-
Review of the material provided and detailed examination of the claimant.
An explanation of my calculations (if applicable).
AMA-5, Page 499, Table 16-18 assesses 15% whole person impairment for disorders of the acromioclavicular joint.”
The Medical Assessor made brief comment on the other evidence and medical opinion which was before him as follows: (emphasis in original)
“With respect to the report by Dr Harrington dated 27/09/2022, I agree with his assessment of 15% whole person impairment on the basis of injury to the acromioclavicular joint.
With respect to the report by Dr Bosanquet dated 15/01/2023, he has assessed full range of motion of Mr Harris’ shoulder and does not agree with my or Dr Harrington’s assessments of 15% whole person impairment according to AMA-5, page 499, Table 16-18. Whilst Mr Harris has a normal range of movement in his shoulder, he obviously has significant pain which he continues to manage, particularly abducting and extending his arm beyond horizontal. The assessment of 15% whole person impairment is appropriate in this case.”
The Medical Assessor did not consider there was a pre-existing condition, abnormality or injury of the right shoulder which warranted a deduction under s 323.
The appellant is correct in their submissions that Table 16.18 of AMA5 provides for a maximum assessment of 15%WPI which is not automatically applied.
The Guidelines take precedence over the application of AMA5.
The Guidelines provide at Chapter 2 in respect of assessment of the upper extremity and in particular the shoulder as follows (emphasis added in bold):
“2. Upper Extremity
AMA5 Chapter 16 (p 433) applies to the assessment of permanent impairment of the upper extremities, subject to the modifications set out below. Before undertaking an impairment assessment, users of the Guidelines must be familiar with:
the Introduction in the Guidelines
• chapters 1 and 2 of AMA5
• the appropriate chapter(s) of the Guidelines for the body system they are assessing
the appropriate chapter(s) of AMA5 for the body system they are assessing. The Guidelines take precedence over AMA5.
Introduction
2.1 The upper extremities are discussed in AMA5 Chapter 16 (pp 433–521). This chapter provides guidelines on methods of assessing permanent impairment involving these structures. It is a complex chapter that requires an organised approach with careful documentation of findings.
2.2 Evaluation of anatomical impairment forms the basis for upper extremity impairment (UEI) assessment. The rating reflects the degree of impairment and its impact on the ability of the person to perform ADL. There can be clinical conditions where evaluation of impairment may be difficult. Such conditions are evaluated by their effect on function of the upper extremity, or, if all else fails, by analogy with other impairments that have similar effects on upper limb function.
The approach to assessment of the upper extremity and hand
2.3 Assessment of the upper extremity mainly involves clinical evaluation. Cosmetic and functional evaluations are performed in some situations. The impairment must be permanent and stable. The claimant will have a defined diagnosis that can be confirmed by examination.
2.4 The assessed impairment of a part or region can never exceed the impairment due to amputation of that part or region. For an upper limb, therefore, the maximum evaluation is 60% whole person impairment (WPI), the value for amputation through the shoulder.
2.5 Range of motion (ROM) is assessed as follows:
2.5.1A goniometer or inclinometer must be used, where clinically indicated.
2.5.2Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
2.5.3If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation.
2.5.4If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Guidelines.
2.5.5If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.
2.6 To achieve an accurate and comprehensive assessment of the upper extremity, findings should be documented on a standard form. AMA5 Figures 16-1a and 16-1b (pp 436–37) are extremely useful both to document findings and to guide the assessment process.
2.7 The hand and upper extremity are divided into regions: thumb, fingers, wrist, elbow and shoulder. Close attention needs to be paid to the instructions in AMA5 Figures 16-1a and 16-1b (pp 436–37) regarding adding or combining impairments.
2.8 AMA5 Table 16-3 (p 439) is used to convert upper extremity impairment to WPI. When the Combined Values Chart is used, the assessor must ensure that all values combined are in the same category of impairment (that is WPI, upper extremity impairment percentage, hand impairment percentage and so on). Regional impairments of the same limb (eg several upper extremity impairments) should be combined before converting to percentage WPI. (Note that impairments relating to the joints of the thumb are added rather than combined – AMA5 Section 16.4d ‘Thumb ray motion impairment’, p 454.)
Specific interpretation of AMA5 – the hand and upper extremity impairment of the upper extremity due to peripheral nerve disorders
2.9 If an upper extremity impairment results solely from a peripheral nerve injury, the assessor should not also evaluate impairment(s) from AMA5 Section 16.4 ‘Abnormal motion’ (pp 450–79) for that upper extremity. AMA5 Section 16.5 should be used for evaluating such impairments.
For evaluating peripheral nerve lesions, use AMA5 Table 16-15 (p 492) together with AMA5 tables 16-10 and 16-11 (pp 482 and 484).
The assessment of carpal tunnel syndrome post-operatively is undertaken in the same way as assessment without operation.
2.10 When applying AMA5 tables 16-10 (p 482) and 16-11 (pp 482 and 484) the examiner must use clinical judgement to estimate the appropriate percentage within the range of values shown for each severity grade. The maximum value is not applied automatically.
Impairment due to other disorders of the upper extremity
2.11 AMA5 Section 16.7 ‘Impairment of the upper extremity due to other disorders’ (pp 498–507) should be used only when other criteria (as presented in AMA5 sections 16.2–16.6, pp 441–98) have not adequately encompassed the extent of the impairments. Impairments from the disorders considered in AMA5 Section 16.7 are usually estimated using other criteria. The assessor must take care to avoid duplication of impairments.
2.12 AMA5 Section 16.7 (impairment of the upper extremities due to other disorders) notes ‘the severity of impairment due to these disorders is rated separately according to Table 16-19 through 16-30 and then multiplied by the relative maximum value of the unit involved, as specified in Table 16-18’. This statement should not include tables 16-25 (carpal instability), 16-26 (shoulder instability) and 16-27 (arthroplasty), noting that the information in these tables is already expressed in terms of upper extremity impairment.
2.13 Strength evaluation, as a method of upper extremity impairment assessment, should only be used in rare cases and its use justified when loss of strength represents an impairing factor not adequately considered by more objective rating methods. If chosen as a method, the caveats detailed on AMA5 p 508 under the heading ‘16.8a Principles’ need to be observed – ie decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities and absence of parts (eg thumb amputation).
Conditions affecting the shoulder region
2.14Most shoulder disorders with an abnormal range of movement are assessed according to AMA5 Section 16.4 ‘Evaluating abnormal motion’. (Please note that AMA5 indicates that internal and external rotation of the shoulder are to be measured with the arm abducted in the coronal plane to 90 degrees, and with the elbow flexed to 90 degrees. In those situations where abduction to 90 degrees is not possible, symmetrical measurement of rotation is to be carried out at the point of maximal abduction).
Rare cases of rotator cuff injury, where the loss of shoulder motion does not reflect the severity of the tear, and there is no associated pain, may be assessed according to AMA5 Section 16.8c ‘Strength evaluation’. Other specific shoulder disorders where the loss of shoulder motion does not reflect the severity of the disorder, associated with pain, should be assessed by comparison with other impairments that have similar effect(s) on upper limb function.
As noted in AMA5 Section 16.7b ‘Arthroplasty’, ‘In the presence of decreased motion, motion impairments are derived separately and combined with the arthroplasty impairment’. This includes those arthroplasties in AMA5 Table 16-27 designated as (isolated).
Please note that in AMA5 Table 16-27 (p 506) the figure for resection arthroplasty of the distal clavicle (isolated) has been changed to 5% upper extremity impairment, and the figure for resection arthroplasty of the proximal clavicle (isolated) has been changed to 8% upper extremity impairment.
Please note that in AMA5 Table 16-18 (p 499) the figures for impairment suggested for the sternoclavicular joint have been changed from 5% upper extremity impairment and 3% whole person impairment, to 25% upper extremity impairment and 15% whole person impairment.
2.15 Ruptured long head of biceps shall be assessed as an upper extremity impairment (UEI) of 3%UEI or 2%WPI where it exists in isolation from other rotator cuff pathology. Impairment for ruptured long head of biceps cannot be combined with any other rotator cuff impairment or with loss of range of movement.
2.16 Diagnosis of impingement is made on the basis of positive findings on appropriate provocative testing and is only to apply where there is no loss of range of motion. Symptoms must have been present for at least 12 months. An impairment rating of 3% UEI or 2% WPI shall apply.”
Here the examination findings are such that impingement is present but the worker has full range of movement (ROM). However the Medical Assessor was of the view, which was open to him in his clinical judgement, there is impairment so other criteria must be used. Where the Medical Assessor has fallen into error is that he has used the following:
“AMA-5, Page 499, Table 16-18 assesses 15% whole person impairment for disorders of the acromioclavicular joint.”
The application of AMA5 is constrained by the Guidelines. The Medical Assessor has not documented any condition in Tables 16.19 through to 16.30 that could be used in conjunction with Table 16.8 as per section 16.7 and therefore he incorrectly utilised Table 16.8. In any event, Table 16-18 provides for a maximum impairment rating of 15% WPI, it does not provide that 15% WPI should be automatically applied.
The Guidelines provide at 2.16:
“Diagnosis of impingement is made on the basis of positive findings on appropriate provocative testing and is only to apply where there is no loss of range of motion. Symptoms must have been present for at least 12 months. An impairment rating of 3% UEI or 2% WPI shall apply.”
This is the assessment on the basis of correct criteria that should have been made on the basis of the examination findings of the Medical Assessor (namely impingement with full ROM with symptoms present for at least 12 months), and this results in an assessment of 3% upper extremity impairment of 2% WPI as a result of injury on 20 October 2021.
The finding that there was no deductible proportion under s 323 was open to the Medical Assessor and discloses nor error.
For these reasons, the Appeal Panel has determined that the MAC issued on
29 May 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W578/23 |
Applicant: | Julian Harris |
Respondent: | Active Crane Hire |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Robert Kuru 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Right upper extremity | 20/10/21 | Page 499 Table 16-18 | 2 | nil | 2 | |
| Total % WPI (the Combined Table values of all sub-totals) | 2 | |||||
0