Al Inezi v Formtrade Pty Ltd
[2023] NSWPICMP 89
•13 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Al Inezi v Formtrade Pty Ltd [2023] NSWPICMP 89 |
| APPELLANT: | Jassir Al Inezi |
| RESPONDENT: | Formtrade Pty Ltd |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Gregory McGroder |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 13 March 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Assessment of cervical spine, left upper extremity, left lower extremity and lumbar spine; Medical Assessor erred in that he did not explain the rationale for deduction for left shoulder impairment by virtue of range of movement in right shoulder; re-examination; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 November 2022 Jassir Al Inezi (Mr Inezi) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
5 October 2022.The respondent to the appeal is the state of Formtrade Pty Ltd (the respondent).
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):
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, 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 WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 April 2016 reissued on 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Inezi sustained an injury to his cervical spine, lumbar spine, left upper extremity and left lower extremity on 29 April 2019.
The matter was referred to the Medical Assessor on 26 September 2022 for assessment of whole person impairment (WPI) of the cervical spine, lumbar spine, left upper extremity and left lower extremity (date of injury 29 April 2019).
The Medical Assessor examined Mr Inezi on 10 June 2022 and assessed 0% WPI of the cervical spine, 8% WPI of the lumbar spine, 1% of the left upper extremity and 4% WPI of the left lower extremity. The combined total WPI was 13% in respect of the injury on
29 April 2019.
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.
Mr Inezi requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel. The respondent opposed this request.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for Mr Inezi to undergo a further medical examination because there was insufficient evidence on which to make a determination.
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.
Further medical examination
Dr Stephenson of the Appeal Panel conducted an examination of Mr Inezi on
15 February 2023 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out 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.
Mr Inezi’s submissions include the following:
(a) Left upper extremity – the Medical Assessor’s assessment was made on the basis of incorrect criteria (Marina Pitsonos v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88) because he misapplied
cl 2.20 of the Guidelines. The Medical Assessor made a deduction for the impairment caused to the left shoulder by virtue of the range of motion he assessed to the right shoulder.(b) Clause 2.20 of the Guidelines provides that, “The rationale for this decision should be explained in the assessor’s report (see AMA 5 Section 16.4c, p 543)”. At section 16.4c of the AMA 5, it has similarly been indicated that “The rationale for this decision should be explained in the report”.
(c) The Medical Assessor misapplied the Guidelines because he did not, as he was required to do, explain the rationale for the decision to make the relevant deduction in the MAC. The Medical Assessor simply indicated that he would be conducting a deduction based on his findings in respect of the right shoulder. The Medical Assessor, as part of the rationale that he was required to provide, ought to have questioned Mr Inezi for any reason that his right shoulder may have had an imperfect range of movement and/or indicated why, on the basis of the impaired range of movement, he was going to perform the deduction. The Medical Assessor did not undertake any analysis as to the cause of any right shoulder impairment and he had not provided any rationale for the deduction as a result.
(d) Cervical spine - the Medical Assessor’s failure to assess an impairment in the cervical spine was an error. At page 8 of the MAC, the Medical Assessor stated:
“With respect to the region of the cervical spine, some asymmetry with active range of motion was evident, however, it is considered that this was a consequence of complaints emanating from the region of the left shoulder girdle. There were nil features of neurological dysfunction or radiculopathy. As such, it is considered that a DRE Category I rating is applicable, ie 0% whole person impairment.”
(e) The Medical Assessor was required to assess the resultant WPI “As a result of an injury” (see the definition of medical dispute at s 319 of the 1998 Act). It was apparent that the focus of the Medical Assessor’s enquiry was upon the impairment that resulted from an injury. The Medical Assessor determined, as noted above, that there was asymmetry to the cervical spine, however, he disregarded same on the basis that it emanated from the shoulder girdle. This was erroneous and demonstrative of the Medical Assessor not performing the assessment as he was required to because he effectively ignored the impairment that resulted from an injury.
(f) Both the cervical spine and the left upper extremity (shoulder) were injured. The Medical Assessor did not provide an opinion that disavowed or disagreed with same. These body parts had been referred to the Medical Assessor for assessment. The fact that the Medical Assessor indicated the issues to the cervical spine emanated from the left shoulder ought to have not mattered as there was an impairment as a result of an injury on any view of the MAC and the Medical Assessor’s findings.
(g) The appellant relies upon Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351 in this regard and submits that the common law test for causation was satisfied, that is, an impairment results from an injury so long as the impairment to a body part results from an injured body part.
(h) Consistent with what was submitted above in respect of the cervical spine, the Medical Assessor misapplied the law pertaining to causation i.e. he did not assess the WPI as caused or materially contributed to by the accepted injury (Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290). Common law principles of causation were applicable when assessing the degree of impairment which resulted from an injury (Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321). Accordingly, the Medical Assessor disregarded the impairment to the cervical spine even though it resulted from an injury (Nguyen).
(i) Because the Medical Assessor disregarded the clear restrictions and impairment, which he determined to exist himself, the Medical Assessor did not assess a rateable impairment with respect to the cervical spine.
(j) Furthermore, by not taking into consideration the resultant issues to the cervical spine, the medical assessment, particularly noting there was no finding made pertaining to a novus actus interveniens, was further erroneous because the Medical Assessor did not assess causation consistent with State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Tort Reports 81-003. Chief Justice Malcolm’s following observations were directly pertinent to the present matter:
“where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:
(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
(3) where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include [sic] no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”
(k) In Faulkner v Keffalinos (1970) 45 ALJR 80 Windeyer J stated that:
“There is I think a critical distinction between a supervening happening that prevents a particular damage occurring as a result of the tort and a supervening happening that causes the harm caused by the tort to have added gravity. In the first class of case the supervening event diminishes the damages which flow from the tort: in the second class it merely adds to them, so that the tortfeasor responsible for the first accident remains liable for the harm he caused, which is not merged in the combined result of his wrongdoing and the later event. The distinction is not always either easily made or preserved.”
The above principles are applicable in the context of a permanent impairment assessment (Johnson) yet the Medical Assessor did not consider same.
(l) Had the Medical Assessor paid regard to the above, he would have determined there to be resultant impairment to the cervical spine as a result of an injury. This finding would follow given the restrictions found by the Medical Assessor during his examination of Mr Inezi.
(m) Finally, the Medical Assessor’s assessment was incorrect as he ignored the fact that there can be multiple causes of incapacity (Calman v Commissioner of Police [1999] HCA 60; (1999) 73 ALJR 1609; Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1979] 2 NSWLR 435).
(n) Noting all of the above principles which were applicable in this matter, the Medical Assessor ought not to have disregarded the impairment he determined to the cervical spine on the basis that they emanated from the region of the left shoulder girdle.
(o) Failure to provide reasons - the Medical Assessor failed to provide any reasons as to why he deducted the impairment to Mr Inezi’s left upper extremity by virtue of the restrictions to the movement he determined to his right upper extremity.
(p) This is because, as indicated above, the Medical Assessor was required to provide the rationale for the deduction and this included determining, if any, the source for the impairment to the uninjured joint. The Medical Assessor has also failed to, in light of the above principles, provide any reasons as to why the issues to his cervical spine were disregarded.
(q) The Medical Assessor’s above errors are material and if they had not been committed WPI would be assessed at a greater percentage than that assessed by the Medical Assessor. Having regard to the totality of the above, the matter ought to be referred to an Appeal Panel for the left upper extremity and cervical spine to be re-examined; and the MAC ought to be revoked and a new Certificate issued.
The respondent’s submissions include the following:
(a) It is disputed that the MAC was made on the basis of incorrect criteria and/or contained a demonstrable error. Mr Inezi received an independent medical assessment of his psychiatric (sic) condition in accordance with the role and function of the Medical Assessor. The Medical Assessor had the benefit of both examining Mr Inezi in person and reviewing the evidence relied upon by both parties.
(b) In accordance with the decision of Deputy President Flemming in the matter of Phillip John Carmody v Walter Merriman & Sons Pty Limited [2003] NSWWCCPD 27,
“a medical assessment is entirely a matter for the AMS, who has the medico-legal reports from both parties before him or her...and has frequently had the benefit of a personal examination of the worker...”
(c) There was no evidence that the examination by the Medical Assessor, was in any way materially defective. The Medical Assessor’s examination amounted to a proper medical examination. There was no demonstrable error or use of incorrect criteria in the Medical Assessor’s assessment of Mr Inezi’s impairment.
(d) The appeal related to essentially to the left upper extremity and cervical spine on two grounds, being that the Medical Assessor incorrectly made a deduction for any impairment caused to the left shoulder by virtue of the range of motion he assessed to the right shoulder, and the Medical Assessor erred in failing to assess an impairment of the cervical spine.
(e) In respect of the left upper extremity, the Medical Assessor correctly made a deduction for impairment to the left shoulder by virtue of the range of motion he assessed to the right shoulder in accordance with the Guidelines. The Medical Assessor was required to utilise the AMA 5 and the Guidelines in his assessment of Mr Inezi and the MAC provided by the Medical Assessor clearly showed he appropriately addressed those guides.
(f) The submission that the Medical Assessor did not undertake any analysis as to the cause of any right shoulder impairment and did not provide any rationale for the deduction as a result was rejected. At page 3 of the MAC, the Medical Assessor noted Mr Inezi did not report complaints affecting the right shoulder girdle or upper limb. Following a thorough physical examination of the worker, the Medical Assessor appropriately noted at page 5 of the MAC that active range of motion was assessed on multiple occasions at both shoulder girdles with use of a goniometer and noted the maximal findings.
(g) The Medical Assessor noted in this regard, that the Guidelines indicated that the findings of the non-affected side should be subtracted from that in question. As such, the Medical Assessor determined a 2% upper extremity impairment in relation to this region, which converts to a 1% WPI.
(h) The Medical Assessor was required to undertake an assessment of a worker as they present on the day of the assessment. The Guidelines provide that assessing permanent impairment involves a clinical assessment of a worker as they present on the day of assessment taking into account relevant medical history and all available relevant medical information. A Medical Assessor was also permitted to determine what weight should be given to the documents referred to him, including documents that record prior medical history and symptoms. It is to be presumed that the Medical Assessor recorded an accurate history and findings on examination and took account of the matters recorded in the various documents referred to him.
(i) That the Medical Assessor may have placed weight on certain information and not on other information when forming his opinion was a matter within his clinical judgement. A mere difference in medical opinion does not amount to a demonstrable error (Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939).
(j) The Medical Assessor provided sufficient explanation for his findings and conclusions, rather than simply indicated that he would be conducting a deduction based on his findings in respect of the right shoulder. The Medical Assessor recorded his findings with respect to the right shoulder within his report and has therefore provided sufficient rationale for his decision to make a deduction in accordance with the Guidelines. The above indicates the Medical Assessor undertook a full and adequate examination of Mr Inezi, including obtaining a full and proper history.
(k) It was clear in this matter that the Medical Assessor applied the correct criteria in assessing the left upper extremity and the Medical Assessor’s opinion should be conclusively presumed correct. The assessment was within the clinical judgment of the Medical Assessor.
(l) There was no evidence to support the contention that the Medical Assessor’s assessment of the left upper extremity was based on a demonstrable error and/or was made on the basis of incorrect criteria.
(m) In respect of the cervical spine, the Medical Assessor appropriately indicated the issues to the cervical spine emanated from the left shoulder.
(n) The submission that the Medical Assessor disregarded the impairment to
Mr Inezi’s cervical spine even though it resulted from an injury was opposed. It was within the expertise of the Medical Assessor to determine there was no impairment to the cervical spine as a result of an injury despite finding some asymmetry with active range of motion. It was within the Medical Assessor’s clinical judgment to conclude a DRE Category I rating was applicable following his review of the evidence provided to him and, in particular, his thorough physical examination of Mr Inezi. The Medical Assessor provided adequate and sufficient explanation for his assessment and conclusions.(o) The Medical Assessor had not disregarded the impairment to be determined to the cervical spine. The Medical Assessor reached an entirely reasonable conclusion based on his clinical judgment and this was not an application of incorrect criteria nor do his reasons disclose a demonstratable error.
(p) The Medical Assessor provided a comprehensive MAC following his thorough examination of Mr Inezi and review of the evidence provided by the parties. The Medical Assessor’s opinion should be conclusively presumed correct. His findings are a matter within the clinical judgment of a Medical Assessor. Such does not constitute a demonstrable error, nor does it evidence that the assessment of the Medical Assessor’s was based on incorrect criteria.
(q) The MAC should be confirmed.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Medical Assessment Certificate
Under “Present Symptoms” the Medical Assessor wrote:
“Mr Al Inezi reports that he is experiencing mild to moderate discomfort to the region of the posterior neck on 2-3 occasions per week. He indicated that active range of motion is reasonable, however, some discomfort arises with activity.
He reports constant variable pain from a mild to ‘strong’ degree at the left shoulder girdle inclusive of associated limitation with active range of motion as a consequence of pain. Via the Interpreter, he indicated that pain is ‘deep seated’ with respect to location. It was stated that this may extend more diffusely inclusive of that to the left upper arm.
Mr Al Inezi did not report complaints, in particular, affecting the elbows, wrists or hands. He did indicate, however, that there is an occasional diffuse feeling of ‘numbness’ and weakness affecting the left upper extremity.
He did not report complaints affecting the right shoulder girdle or upper limb…”
Under “Details of any previous or subsequent accidents, injuries or condition” the Medical Assessor wrote:
“Mr Al Inezi was reportedly involved in a motor vehicle accident in approximately 2018. He indicated that this was of a more minor type. Medical review, however, took place with a General Practitioner. Complaints were reportedly present to the region of the back. Pain reportedly settled within a period of approximately one week. He indicated that he had been the driver and that there was a side impact with his car by a truck. He reported that his vehicle was subsequently repaired.”
Under “Findings on Physical Examination”, the Medical Assessor wrote:
“…Active range of motion in relation to the cervical spine was approximately as follows: Left axial rotation half that of normal; right axial rotation two-thirds that of normal; left coronal rotation unrestricted; right coronal rotation unrestricted; posterior sagittal rotation near normal; anterior sagittal rotation (forward flexion) unrestricted.
Limitation and discomfort with testing active range, in particular, with left axial rotation appeared to arise as a consequence of discomfort to the region of the left shoulder girdle.
Some degree of tenderness was reported with palpation overlying the lower posterior cervical spinous processes and adjacent left paracervical musculature. Tenderness was also reported as present affecting the left suprascapular region.
Nil muscular spasm or guarding was evident.
Active range of motion was assessed on multiple occasions at both shoulder girdles with use of a goniometer with maximal findings noted as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
150°
140°
Extension
40°
40°
Adduction
40°
60°
Abduction
150°
130°
Internal Rotation
60°
50°
External Rotation
70°
60°
Diffuse tenderness was reported with palpation overlying the left shoulder girdle.
Mr Al Inezi indicated some back discomfort arising with testing.
Girth measurements within the upper limbs were as follows: 29.5cm (right mid upper arm); 29.5cm (left mid upper arm); 28cm (maximal right forearm girth); 27.5cm (maximal left forearm girth).
There was satisfactory symmetric active range of motion with respect to the elbows, wrists and within both hands.
Motor and sensory systems examination within the upper limbs was non-contributory.
Provocation tests for carpal tunnel syndrome and de Quervain’s tenosynovitis were bilaterally negative.
General inspection demonstrated a normal thoracolumbar curve.
…”
Under “Summary of injuries and diagnoses”, the Medical Assessor wrote:
“With respect to the region of the cervical spine, I have had the opportunity of reviewing the MRI examination of 8.11.19. Nil significant abnormality was noted in relation to this study. It is considered that Mr Al Inezi is likely to have suffered an initial musculoligamentous strain injury pertaining to the region. His ongoing complaints may be attributable to an aggravation of early degenerative changes/spondylosis.
…
With respect to the region of the left shoulder girdle, I have had the opportunity of reviewing the MRI examination of 11.11.19 with features reported as consistent with a rotator cuff tendinosis and subacromial bursitis. Mr Al Inezi’s ongoing complaints may be attributable to a chronic rotator cuff tendinitis.”
Under “Reasons for Assessment”, the Medical Assessor assessed 13% combined WPI and wrote:
“With respect to the region of the cervical spine, some asymmetry with active range of motion was evident, however, it is considered that this was as a consequence of complaints emanating from the region of the left shoulder girdle. There were nil features of neurological dysfunction or radiculopathy. As such, it is considered that a DRE Category I rating is applicable, ie 0% whole person impairment.
With respect to the region of the lumbar spine, asymmetric active range of motion was apparent. There were nil features of neurological dysfunction/radiculopathy. As a consequence, it is considered that a DRE Category II rating is applicable, ie 5-8% WPI.
Taking into account negative impacts upon activities of daily living, an 8% WPI is determined. With respect to the left upper extremity and taking into account limitation with active range of motion at the left shoulder girdle, an 8% upper extremity impairment is determined. When assessing the contralateral side, a potential 6% upper extremity impairment is noted. In this regard, the Workers’ Compensation Guidelines indicate that the findings of the non-affected side should be subtracted from that in question. As such, I have determined a 2% upper extremity impairment in relation to this region. This converts to a 1% whole person impairment.
I do not consider that any other regions within the left upper extremity require assessment or that any other methodologies apply.
…When taking into account the whole person impairments of 0%, 8%, 1% and 4%, a final combined whole person impairment of 13% is determined.”
In commenting on the other medical opinions and findings, the Medical Assessor wrote:
“I have had the opportunity of reviewing the medical report (11.9.20) prepared by Dr YK Lee, Consultant Orthopaedic Surgeon of Sydney. The doctor had indicated the following impairments: Lumbar spine 7% WPI; cervical spine 5% WPI; left upper extremity 5% WPI; left lower extremity 7% WPI. A final combined whole person impairment of 22% is outlined. It is evident that the doctor’s clinical findings differ to some degree pertaining to the current assessment. It is evident that Dr Lee’s assessment had been undertaken some time ago. I have also had the opportunity of reviewing the medical report (25.6.21) prepared by Dr Brett Courtenay, Consultant Orthopaedic Surgeon of Darlinghurst. The doctor has indicated a whole person impairment of 7% in relation to the left shoulder and that of 5% with respect to the lumbar spine. An ADL rating is outlined as a separate impairment of 2% in his table. As such, a final combined whole person impairment of 14% is documented.
Dr Courtenay has indicated that he did not consider that there was an impairment pertaining to the left knee. He had indicated that he had not found wasting affecting the left lower extremity, however, it was both Dr Lee’s finding and mine that this was in fact present in relation to the left thigh.
An impairment assessment has not been determined by Dr Courtenay with respect to the region of the cervical spine.
…”
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Left upper extremity
Clause 2.20 of the Guidelines provides:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543).”
Page 453 of AMA 5 at 16.4c provides:
“The measurements reported in the impairment tables and pie charts reflect the accepted average active range(s) of motion for each joint. However, certain people can have either lesser or greater joint flexibility than average. It is therefore most important to always compare measurements of the relevant joint(s) in both extremities.
If a contralateral ‘normal’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the report.”
Under “Present symptoms”, the Medical Assessor noted: “He did not report complaints affecting the right shoulder girdle or upper limb”. The Medical Assessor noted that in respect of the left shoulder girdle, he had reviewed the MRI examination of 5.8.19 with features reported as consistent with a rotator cuff tendinosis and subacromial bursitis. The Medical Assessor noted that Mr Inezi’s ongoing complaints may be attributable to a chronic rotator cuff tendinitis.
In explaining his calculation of WPI on page 9 of the MAC the Medical Assessor wrote:
“With respect to the left upper extremity and taking into account limitation with active range of motion at the left shoulder girdle, an 8% upper extremity impairment is determined. When assessing the contralateral side, a potential 6% upper extremity impairment is noted. In this regard, the Workers’ Compensation Guidelines indicate that the findings of the non-affected side should be subtracted from that in question. As such, I have determined a 2% upper extremity impairment in relation to this region. This converts to a 1% whole person impairment.”
Dr Yuk Kai Lee, consultant orthopaedic surgeon, in a report dated 11 September 2020, made a diagnosis of an injury of the rotator cuff of the left shoulder. He assessed 5% WPI of the left upper extremity. Dr Lee wrote:
"LEFT UPPER EXTREMITY
There is tenderness in the anterolateral shoulders. Shoulder impairment is usually estimated using the range of movement method. I normally subtract the ‘normal’ shoulder impairment from the affected one because usually, there is some underlying stiffness showing up on the opposite side.
Shoulder
Right
Left
%Impairment Upper Extremity
Flexion
135˚
90˚
R3
L6
Extension
30˚
20˚
R1
L2
Abduction
120˚
80˚
R3
L5
Adduction
40˚
30˚
R0
L1
External Rotation
90˚
90˚
R0
L0
Internal Rotation
45˚
40˚
R2
L3
Total
R9
L17
Total Left Upper Extremity Impairment = (17 - 9) = 8% Equivalent to 5%WPI AMA5 (page 476-479, figure 16-40 to 16-46).”
Dr Brett Courtenay, consultant orthopaedic surgeon, in his report dated 25 June 2021, reported the following range of movement in the shoulders:
“Shoulder Movement Right Left
Abduction 160 120
Adduction 40 20
Flexion 150 130
Extension 40 40
External Rotation 80 80
Internal Rotation 70 20”
Dr Courtenay noted that the MRI of the left shoulder on 11 December 2019 reported diffuse supraspinatus tendinosis with some bursal type tear and subacromial bursitis. He expressed the view that Mr Inezi had some significant soft tissue injuries and that there had been a sprain of the shoulder, which was settling. Dr Courtenay assessed 7% WPI of the left shoulder noting:
“Shoulder UEI (AMAS pp 476,477,479: Tables 16-40, 16-43, 16-46) Abd 3 %, Add 1
%, Flex 3 %, Ext 1 %, IR 4 %, ER 0% Total = 12% UEI = 7% WPI (AMAS p439 Table 16-3).”The appellant submitted that the assessment was made on the basis of incorrect criteria because the Medical Assessor misapplied cl 2.20 of the Guidelines which required him to explain the rationale for the decision to make the relevant deduction in the MAC. The Medical Assessor did not explain his rationale for the deduction but simply indicated that he would be making a deduction based on his findings in respect of the right shoulder.
The Appeal Panel was satisfied that the Medical Assessor did not provide an adequate explanation for the decision to subtract from the calculated impairment of the left shoulder (the involved joint) the impairment value corresponding to the uninvolved right shoulder joint (serving as a baseline).
Both the Guidelines and AMA 5 require that the rationale for this decision should be explained in the assessor’s report. While the Medical Assessor stated that he would make the deduction, he did not provide a rationale or an adequate rationale for that decision. The failure to provide a rationale was a demonstrable error and the assessment was made on the basis of incorrect criteria.
Cervical spine
Mr Inezi submitted that the Medical Assessor’s failure to assess impairment in his cervical spine was an error. The Medical Assessor considered that a DRE Category I rating was applicable, that is, 0% WPI.
Having regards to part 7 of chapter 7 of the 1998 Act, the focus of the Medical Assessor’s enquiry was upon the impairment that resulted from an injury. The Medical Assessor determined that there was asymmetry to the cervical spine but disregarded this on the basis that it emanated from the shoulder girdle. Mr Inezi argued that this was erroneous and demonstrative of the Medical Assessor not performing the assessment as he was required to because he effectively ignored the impairment that resulted from an injury.
Both the cervical spine and the left upper extremity (shoulder) were injured and these body parts had been referred to the Medical Assessor for assessment. Mr Inezi argued that the fact that the Medical Assessor indicated the issues to the cervical spine emanated from the left shoulder ought to have not mattered as there was an impairment as a result of an injury on any view of the MAC and the Medical Assessor’s findings. Mr Inezi submitted that the common law test for causation was satisfied, that is, an impairment results from an injury so long as the impairment to a body part results from an injured body part (Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351).
Under the heading “Reasons for Assessment”, the Medical Assessor wrote at page 8 of the MAC:
“With respect to the region of the cervical spine, some asymmetry with active range of motion was evident, however, it is considered that this was a consequence of complaints emanating from the region of the left shoulder girdle. There were nil features of neurological dysfunction or radiculopathy. As such, it is considered that a DRE Category I rating is applicable, ie 0% whole person impairment.”
The Appeal Panel accepted the Medical Assessor found some asymmetry of movement in the cervical spine and concluded that it was a consequence of the symptoms emanating from the region of the left shoulder girdle.
The Appeal Panel noted that both the cervical spine and left upper extremity had been included in the body parts referred to the Medical Assessor for assessment of WPI.
In Nguyen, Hall J found at [94] that “impairment in one or both of the [claimant’s] upper limbs consequent upon injury to the cervical spine would be compensable as the natural and direct consequence of spinal injury.” In other words, a neck injury that causes direct referred restriction of movement to the shoulders means the shoulder restriction is caused by the accident and any subsequent impairment is assessable.
Justice Hall addressed the question whether the assessment was intended to be made by reference to common law principles of causation or whether these had been altered by the Act or the Guidelines. His Honour said, of present relevance:
“[92] It is trite to say, and in accordance with ordinary human experience, that injury to one part of a person’s body can affect or lead to impairment in both the part directly injured and in a related or connected part.
[93] In the present case, there was no dispute as to the following facts:
(1) The plaintiff was injured in a motor accident.
(2) That as a result of the accident, she suffered an injury to the cervical/neck area: ‘cervical injury’.
(3) The injury to the neck has led to permanent impairment (assessed at 5%).
(4)The plaintiff has, as a consequence of the neck injury, also suffered an impairment in her right shoulder (‘... the right shoulder noted today is directly related to her cervical injury’ — Dr Menogue at p 12 of the Certificate).
[94] Application of common law causation principles would, in my opinion, support the conclusion that impairment in one or both of the plaintiff’s upper limbs consequent upon injury to the cervical spine would be compensable as the natural and direct consequence of spinal injury.
[95] The question, however, in the present case is whether the provisions of the Act operate to alter, constrain or limit common law principles so as to disentitle an injured person to have what might be described as consequential impairment taken into account in the assessment of ‘permanent impairment’.
. . .[99] Injury to one part of the body, such as the back, it is well-known as part of human experience, may result in impairment not only to the injured back itself but to other parts constitutionally associated or linked to the back such as the upper or lower limbs. The explanation, of course, is well understood and lies in the fact that trauma to the back may interfere with or cause interference to or impingement of the nerve roots associated with the spinal column (e.g., pain (sciatica) or loss of function in the limbs).
[100] Under the provisions of the Act to which I have referred, the ‘result’ of injury to the back in such cases cannot be taken as imposing a limit to impairment arising only from the injury to the back itself.
[101] Similarly, in a case where an injury is sustained by a person in a motor vehicle accident to the side of the face that later causes an interference to the nerves to the eye resulting in blindness in that eye, would, in my opinion, be readily seen as the result of the injury to the face.
[102] Sections 131 and 132 of the Act are expressed in straight-forward language involving the juxtaposition of ordinary English words ‘impairment’, ‘as a result of’ and ‘injury’. Unless the context otherwise requires, there is no basis for notionally engrafting onto such terms refinements or qualifications or conditions that are not expressed in the statute.”
In QBE Insurance (Australia) Ltd v Davies [2016] NSWSC 536, Adamson J considered the decision in Nguyen and said:
“29. In my view, in Nguyen v MAA, Hall Jwas saying no more than that, in the circumstances of that case, restrictions in the claimant’s shoulders could be taken into account in assessing WPI because the restrictions were a result of an injury to the neck sustained in the motor vehicle accident. Justice Hall emphasised the importance of the statutory wording, and the purpose of the assessment, namely to assess ‘the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident’. As the final sentence of [102] (set out above) indicates, there is no basis for importing a gloss on the statutory wording; his Honour ought not be taken to have done so.
30. It follows that Nguyen v MAA does not establish a new principle at all. Its facts merely provide an illustration of the operation and effect of the statutory wording, which was found to incorporate common law principles of causation. It exemplified that an injury caused by a motor vehicle accident may result in an impairment to another part of the body that has not been injured in the accident, but which nonetheless is to be taken into account in an assessment under the Act.
31. Although the assessor in Nguyen v MAA found that the restriction in Ms Nguyen’s range of movement of the right shoulder was ‘directly related to her cervical injury’, no particular significance ought be given to the word ‘directly’ in this context. The question was whether the impairment to Ms Nguyen’s shoulder was a result of the injury (to her neck) caused by the motor vehicle accident.”
The Appeal Panel was satisfied that the Medical Assessor made a demonstrable error in not making an assessment of the impairment in the cervical spine given his findings of asymmetry even though he considered that this was a consequence of complaints emanating from the region of the left shoulder girdle.
The Appeal Panel concluded that it was necessary for Mr Inezi to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Medical Assessor Stephenson re-examined Mr Inezi on 15 February 2023. Medical Assessor Stephenson provided the following report:
“PRESENTATION:
An Arabic interpreter attended namely Eman Hammo, CPN number 7NC14W. The appellant is aged 46 years, who came to Australia in 2011 from Iraq, where he had been a taxi driver and sometimes did labouring jobs. He is married with six children, all in Iraq. He is now an Australian citizen. The reference here is for reassessment of the neck and both shoulders. Based on the medical certificate of assessor,
Dr David Crocker, who found from date of injury 29 April 2019, cervical spine 0%, lumbar spine 8% - which means he allowed 3% for personal care, left upper extremity 1% and left lower extremity 4%, total combined value of 13%.The worker’s medical history where it differs from previous records: A similar medical history was obtained in terms of the MAC since the original Medical Assessment Certificate was performed. The same history pertains to the present symptoms of pain in neck, left shoulder, lumbar spine and left leg. The appeal refers to the cervical spine where the assessor, Dr Crocker, noted there was asymmetric loss of range of motion. ‘Mr Al Inezi stated that on 29 April 2019, he was undertaking work duties in the roof cavity, was required to carry timber bearers which he supported on his right shoulder. While proceeding in this manner, he reportedly trod on building items or debris causing him to fall onto his left hand side onto a plywood surface. The bearer reportedly then landed on him. He stated that mild pain was evident in the region of the neck and left shoulder. There was reportedly more pain in the region of the back and left knee’.
In addition, there has been an ultrasound left subacromial bursal steroid injection on 17 December 2019. Report of Dr Andrew Law, radiologist, is as follows: Under ultrasound guidance and aseptic conditions, the subacromial bursa was infiltrated with 1 mL of Celestone Chronodose and 4 mL of 1 % Lignocaine. No immediate postoperative complication was experienced.
PHYSICAL EXAMINATION at this review:
Findings on examination, grip strength was mild at 14 kilograms-force with right hand and minimal force gaining only 2 kilograms-force in the left hand.
On examination of cervical spine, there was asymmetrical loss of range of motion as follows: Cervical lateral tilt right 10 degrees and left 20 degrees.
Cervical rotation right 40 degrees – looks down. Cervical rotation left 30 degrees.
Cervical flexion 40 degrees.
Cervical extension 10 degrees.
There were no objective findings of radiculopathy in the upper extremities where power and sensation were satisfactory and deep tendon reflexes were present and active.
For the cervical spine at page 392, there is DRE Category 2 with baseline of 5%.
I have not added anything for ADLs as that has been added by the Medical Assessor for lumbar spine giving 8% which includes personal care. Therefore, the cervical spine has 5% WPI and no deductible proportion in the absence of previous injury, condition or abnormality.
Reference for shoulder restriction, I applied charts AMA 5 Chapter 16, page 476-479, Figure 16-40 to 16-46, Upper extremity impairment is converted to whole person impairment at page 439, Table 16-3. For right shoulder, abduction 140 degrees 2% upper extremity, adduction 40 degrees 0%. Flexion 130 degrees 3% upper extremity, extension 60 degrees 0%, external rotation 60 degrees 0%, internal rotation 90 degrees 0%. There is 5% upper extremity upper impairment for right shoulder.
I referenced WorkCover Guidelines, page 12, clause 2.20, for calculating motion impairment ‘when calculating impairment of loss of range of movement it is most important to always compare measurements of the relevant joints in both extremities. If a contralateral ‘normal/uninjured/joint has less than average mobility, the impairment value corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the Assessor report.’ See AMA 5 Section 16.4c, page 543.
Injured Left Shoulder
Left shoulder abduction 70 degrees 5% upper extremity; adduction 10 degrees 1%; flexion is 70 degrees 7%; extension 20 degrees 1%; external rotation 60 degrees, 0%; internal rotation 60 degrees, 2%. The total is 16% upper extremity impairment for the left shoulder from which is subtracted 5% upper extremity for the right shoulder giving a net 11% upper extremity. 11% upper extremity impairment converts to 7% WPI. Explanation for the shoulder assessment: I questioned the claimant. There has not been any previous injury to the left shoulder. The uninjured right upper extremity has moderate grip strength of 14 kilograms-force using a Jamar dynamometer.
There is no history of any previous injury or condition of the uninjured right upper extremity/shoulder. All the management has been to the left shoulder that has included the above-mentioned steroid injection confirmed by the radiologist,
Dr Andrew Law, to the left subacromial bursa. The diagnosis was consistent with a subacromial bursitis at the left shoulder with pain and restricted movement.In addition, as noted by the respondent, page 3 of the MAC, the medical assessor noted the applicant worker did not report complaints affecting the right shoulder girdle or upper limb, nor was there any management for the right shoulder.
Reassessment of the Medical Assessment Certificate which is set out on page 11 of the MAC. For the cervical spine, he has 5% WPI and no deductible proportion. For left upper extremity, there is a net 11% upper extremity after deduction of 5% upper extremity from the 16% upper extremity gained for the injured left upper extremity at this assessment. There is a net 11% upper extremity which converts to 7% WPI which is inserted at the table 2. The combination now occurs by combining in decreasing order of value, cervical spine 5% WPI, lumbar spine 8% WPI, left upper extremity 7% WPI, left lower extremity 4% WPI. The combination is 8 with 7 with 5 with 4. The total combined value is 21% WPI. There is no deductible proportion in the absence of previous injury condition or abnormality.”
The Appeal Panel has adopted the report and findings of Medical Assessor Stephenson.
The Appeal Panel was satisfied that Medical Assessor Stephenson found an asymmetrical loss of range of motion in the cervical spine. The Appeal Panel agreed with Medical Assessor Stephenson that Mr Inezi should be assessed as DRE 2 for the cervical spine with a baseline of 5% WPI.
In relation to the left shoulder abduction, the Appeal Panel assessed 16% upper extremity impairment from which 5% upper extremity impairment for the right shoulder was subtracted giving 11% upper extremity impairment for the left upper extremity, which converts to 7% WPI. The Appeal Panel noted that there was no history of any previous injury or condition of the uninjured right upper extremity/shoulder.
In this matter, the Appeal Panel found a demonstrable error in the MAC and determined that the MAC be set aside. The Appeal Panel was required to undertake a fresh assessment of Mr Inezi’s WPI in accordance with the Guidelines. The Appeal Panel has made such an assessment of WPI on the basis of a clinical assessment of Mr Inezi by Medical Assessor Stephenson, the relevant medical history and all the available relevant medical information.
The Appeal Panel has therefore assessed 5% WPI for the cervical spine, 8% WPI for the lumbar spine, 7% WPI for the left upper extremity and 4% WPI for the left lower extremity. The total WPI is 21% as a result of the injury on 29 April 2019.
For these reasons, the Appeal Panel has determined that the MAC issued on
5 October 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W5274/22 |
Applicant: | Jassir Al Inezi |
Respondent: | Formtrade Pty Ltd |
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 Dr David Crocker 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 | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Cervical spine | 29.4.19 | Chapter 4, pp 24-30 | Chapter 15, 15.6, pp 392-395; DRE 2 | 5% | _ | 5% |
| 2.Lumbar spine | 29.4.19 | Chapter 4, pp 24-30 | Chapter 15, 15.4, pp 384-388; DRE II | 8% | _ | 8% |
| 3.Left Upper Extremity | 29.4.19 | Chapter 2, pp10-12 | Chapter 16, 16.4i, Table 16-3 | 7% | _ | 7% |
| 4.Left lower extremity | 29.4.19 | Chapter 3, pp13-23 | Chapter 17, 17.2d, pp 530-531 | 4% | _ | 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 21% | |||||
0
11
0