Anglican Care Community Services Ltd v Hodder
[2022] NSWPICMP 73
•1 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Anglican Care Community Services Ltd v Hodder [2022] NSWPICMP 73 |
| APPELLANT: | Anglican Care Community Services Ltd |
| RESPONDENT: | Karen Hodder |
| APPEAL PANEL: | Member Marshal Douglas Dr James Bodel Dr David Crocker |
| DATE OF DECISION: | 1 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Respondent worker was referred for assessment of whole person injury (WPI) from injury to lumbar spine and consequential conditions in left upper extremity (shoulder) and cervical spine; Medical Assessor (MA) used restriction of range of movement of left upper extremity to assess WPI of left upper extremity and also included restriction of movement of respondent’s left elbow to assess respondent ‘s impairment; appellant submitted Medical Assessment Certificate (MAC) contained a demonstrable error because MA included in his assessment impairment due to respondent’s restricted movement of left elbow when that was not a matter referred for assessment; appellant submitted that MA made assessment with respect to left upper extremity based on incorrect criteria because MA ought to have concluded respondent’s presentation was inconsistent; Held- Panel considered MA’s conclusion that respondent’s presentation was consistent was open to him and MA applied correct criteria; Panel found MAC contained demonstrable error because MA included assessment of respondent’s WPI due to restriction of movement of left elbow; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 December 2021 Anglican Care Community Services Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr Tim Anderson, who issued a Medical Assessment Certificate (MAC) on 1 December 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
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 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant employed Karen Hodder (the respondent) as an assistant nurse. On 28 August 2016 the respondent was assisting with the transfer of a patient to a lifter strap. The patient weighed between 130 and 140 kilograms. In the process of doing this, the respondent bore the full weight of the patient which resulted in her suffering an injury to her lumbar spine. Subsequently, and as a result of that injury, she suffered a condition in her cervical spine and left shoulder.
Consultant occupational physician Dr T Mastroianni examined the respondent on 7 February 2018, at the request of her solicitors. Dr Mastroianni advised her solicitors that his clinical diagnosis of the respondent was that she had a lumbosacral disc lesion, left shoulder tendonitis, left axillary nerve neuropathy and C6/7 foraminal encroachment. Dr Mastroianni also advised that the respondent’s lumbosacral disc lesion resulted from the lifting incident on 26 August 2016 and that the pain she subsequently developed in her left shoulder and neck as a consequence of the injury to her lumbosacral spine on 26 August 2016. He advised that the respondent had a whole person impairment (WPI) of 21% as a result of the injury to her lumbar spine and the consequential conditions in her cervical spine and left upper extremity. That impairment comprised 5% WPI relating to the respondent’s cervical spine, 8% relating to her lumbar spine and 10% relating to her left upper extremity.
On 21 February 2019 the respondent signed a permanent impairment claim form, bearing the insignia of the State Insurance Regulatory Authority, for the purpose of making a claim against the appellant for compensation for permanent impairment. She indicated in that claim form that she relied upon the report Dr Mastroianni provided to her solicitors on 7 February 2019. On 25 February 2019 her solicitors wrote to the appellant’s insurer providing it with a copy of the claim form and advising it that the respondent was claiming compensation of $52,570 under s 66 of the Workers Compensation Act1987 (the 1987 Act) of for 21% WPI.
On 20 May 2019 the insurer wrote to the respondent, care of the respondent’s solicitors, advising her, in accordance with s 78 of the 1998 Act, that it disputed she was entitled to permanent impairment lump sum compensation for her injury on 26 August 2016. In between the time the respondent had made her claim for compensation and the insurer writing this letter, the insurer had arranged for the respondent to be examined by orthopaedic surgeon Dr Stephen Rimmer. Dr Rimmer provided the insurer a report following his examination, dated 10 April 2019, and the insurer relied on this report to dispute the respondent’s claim. Dr Rimmer advised in that, based on his examination of the respondent, he considered the respondent had a constitutional lumbar spondylosis, a constitutional cervical spondylosis and an adhesive capsulitis/frozen left shoulder. He advised the insurer that he did not consider the respondent had suffered an injury to her cervical spine and left shoulder as a result of the workplace injury. He said that he did not believe the respondent had a WPI of the cervical spine, lumbar spine and her left shoulder as a result of her employment with the appellant.
On 29 April 2021 the respondent filed with the Personal Injury Commission (the Commission) an Application to Resolve a Dispute seeking determination of her claim against the appellant for compensation for permanent impairment and also seeking determination of another claim she made for compensation under s 60 of the 1987 Act for costs she had incurred in obtaining treatment for her injury. The matter was referred to Member Rachel Homan. On 28 May 2021 the Member made orders, with the consent of the parties, remitting the matter to the President to be referred to a MA for assessment as follows:
“Date of injury: 26 August 2016
Body parts: Lumbar spine
Cervical spine – consequential condition
Left Upper Extremity (shoulder) – consequential condition
Method: Whole Person Impairment”
A referral was issued to the MA requiring him to assess the medical dispute between the parties relating to the degree of permanent impairment of the respondent as a result of her injury. The date of injury and the body parts to be assessed and the method of assessment reflected exactly that which the member had specified in the orders she made on 28 May 2021.
The MA examined the respondent on 15 November 2021 and, as already said, issued the MAC on 1 December 2021. In that he certified he assessed the respondent had 32% WPI resulting from her injury comprised of 5% WPI relating to the lumbar spine, 8% WPI relating to the cervical spine and 22%WPI relating to the left upper extremity. The MA’s assessment of the respondent’s WPI due to her left upper extremity included an impairment the respondent had due to restriction of movement in both her left shoulder and left elbow.
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because, notwithstanding that the Appeal Panel found, for reasons explained below, the MAC did contain a demonstrable error, the Appeal Panel considered the material before it was sufficient for it to determine the appeal and to correct that error.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s appeal relates to the MA’s assessment of the respondent’s WPI of the left upper extremity. Relevant to that, the MA recorded in Part 1 of the MAC that the “body parts/systems” that had been referred for assessment were as follows:
“Lumbar spine
Cervical spine (consequential)
Left upper extremity (consequential)”
The history the MA obtained relating to the respondent’s injury included the respondent, subsequent to her injuring her lumbar spine, experiencing pain in her neck and in her left shoulder complex which the respondent believed had developed “because of the rather contorted way she was trying to hold herself in order to protect her back”. The MA noted that the respondent’s present treatment consisted of extensive analgesics including opiates. The MA noted that the respondent’s present symptoms in her left shoulder were pain with gross restriction of movement and power.
The findings the MA recorded, within Part 5 of the MAC, from his examination of the respondent’s upper limbs were as follows:
“With a little difficulty she had a completely full and normal range of movement of the right shoulder, elbow, wrist and all digits. On the left side there was virtually normal wrist and digit movement. She had the following elbow movements:
MOVEMENT RIGHT LEFT
Flexion 140° 110°
Extension 0° 80°
Supination 80° 80°
Pronation 80° 80°
She had the following shoulder movements:
MOVEMENT RIGHT LEFT
Flexion 180° 40°
Extension 50° 10°
Abduction 180° 30°
Adduction 50° 10°
Internal rotation 80° 30°
External rotation 80° 40°
Sensation was throughout the normal distribution, although was perceived more in the right side than in the left.”
The MA noted in Part 6 of the MAC that an ultrasound scan of the respondent’s left shoulder, which was done on 17 October 2019, showed no significant features.
Within Part 7 of the MAC the MA provided a “summary of injuries and diagnoses”. With respect to the respondent’s left shoulder the MA noted the respondent had developed a dysfunction in her left shoulder and that her condition seemed to have continued to deteriorate. The MA noted that at the time of his assessment the respondent was “grossly dysfunctional” and that “clinical features strongly suggested the development of a chronic pain condition”. The MA further recorded that “the respondent’s presentation was consistent”.
The MA provided the following explanation for his assessing the respondent to have 22% WPI of her left upper extremity:
“The left upper extremity was very grossly dysfunctional with gross restriction of movement and functional capacity of both the left shoulder and to a slightly lesser extent, the left elbow. In the clinical file, I can find nowhere else that the left elbow has been so dysfunctional. Nevertheless, at today’s assessment she held the left arm very protectively and there was very little movement of the left elbow. She struggled to achieve pronation and supination and only just managed the full range of each.
Shoulders.
AMA 5
REFS MOVEMENT RIGHT % RIGHT UEI LEFT % LEFT UEI
P 476 Flexion 180° 0 40° 10 F 16-40 Extension 50° 0 10° 2
P 477 Abduction 180° 0 30° 7
F 16-43 Adduction 50° 0 10° 1
P 479 Internal rotation 80° 0 30° 4
F 16-46 External rotation 80° 0 40° 1
Subtotals 0 25
Elbows.
AMA 5
REFS MOVEMENT RIGHT % RIGHT UEI LEFT % LEFT UEI
P 472 Flexion 140° 0 110° 4
F 16-34 Extension 0° 0 80° 11
P 474 Supination 80° 0 80° 0
F 16-37 Pronation 80° 0 80° 0
Subtotals 0 15
The upper extremity impairments from the left elbow and left shoulder are combined, giving 36%. From Page 439, Table 16-03, this converts to 22% WPI.”
The MA observed within Part 10c of the MAC that compared to when Dr Mastroianni examined the respondent, the respondent’s range of movement of her left upper extremity was much better when examined by him. The MA also observed that Dr Rimmer had said that the respondent had developed a left frozen shoulder.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the MA had wrongly assessed the respondent’s impairment of her left upper extremity because he included a component for impairment due to restriction of the range of movement of her left elbow where the referral to him did not include that body part.
The appellant also submitted that the MA based his assessment on incorrect criteria in that he should not have assessed the respondent’s impairment with respect to her left shoulder by reference to the range of motion the respondent had in her left shoulder. The appellant submitted that this was because the MA ought not to have been satisfied that the respondent’s presentation was consistent with respect to her left shoulder movement. The appellant submitted that the “factors against the presentation of the left shoulder being consistent” were that:
(a) the MA did not provide a specific diagnosis with respect to the left shoulder but simply stated that the respondent had developed a chronic pain condition which does not constitute a proper diagnosis;
(b) the respondent was having no active treatment;
(c) the respondent had pain in the left shoulder with gross restriction of movement and power;
(d) the respondent was grossly dysfunctional and in a great deal of pain and exhibited gross dysfunction with gross restriction of movement in her left upper extremity and was holding her left arm protectively, and
(e) the ultrasound of the respondent’s left shoulder did not reveal any significant feature.
The appellant said there was “no mention in the MAC of ‘repeated testing’ as suggested by Guideline 2.5”. The appellant said that there was no mention in the MAC of passive range of motion of the left shoulder. The appellant submitted that there was no mention in the MAC of passive range of motion of the left shoulder and whether there was any voluntary resistance.
The appellant also submitted that “it is quite difficult to accept that the MA found an almost perfect range of movement of the contralateral right shoulder with the only restriction being a very slight loss of movement in internal external rotation”. The respondent noted that Dr Mastroianni “made a deduction for the non-injured right shoulder, in accordance with the Guidelines”. The respondent further submitted that the MA’s “findings of almost full ROM of the right shoulder is also not consistent with the finding at the top of page 4 of the MAC with respect to symptoms noted as emanating from the respondent’s cervical spine”.
In reply, the respondent submitted that the MA based his assessment of her left shoulder on his clinical judgment which involved his obtaining a detailed history, detailed findings from his examination, his review of the relevant investigations, his analysis of her deterioration over time, and his conclusion that her presentation was consistent.
The respondent made no submission in reply to the appellant’s submission that the MAC contained a demonstrable error due to the MA assessing her impairment of her left elbow.
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.
The Appeal Panel rejects the submissions the appellant made relating to the MA basing his assessment of the respondent’s impairment of her left shoulder by reference to incorrect criteria.
The Appeal Panel considers that it was open to the MA to assess the respondent’s impairment of her left shoulder by reference to the range of motion the respondent exhibited in that joint during the MA’s examination of her left shoulder. This is because the MA found the respondent’ presentation at examination to be consistent. The MA explicitly said so. Further, nothing within the MAC reveals that there was any inconsistency between the symptoms the respondent reported and the MA’s findings from his clinical examination of the respondent. It is apparent to the Appeal Panel that the MA based his conclusion that the respondent’s presentation was consistent on his clinical judgment and, in that circumstance, it was open to him to assess the respondent’s impairment of her left shoulder by reference to her range of motion of her left shoulder.
The MA’s diagnosis that the respondent had developed a chronic pain condition in her left shoulder was credible, based on the history the MA obtained and his findings from examination. Chronic pain is a valid diagnosis. There is nothing within the appellant’s submissions to indicate why the MA’s diagnosis is not “a specific diagnosis” or a proper diagnosis.
The fact that the respondent is not having any active treatment, other than taking medications, does not mean that she does not have restriction of motion of her left shoulder. Further the fact that the respondent had pain and gross restriction of movement and power in her left shoulder does not mean that her presentation was inconsistent, particularly given that the MA diagnosed her as suffering a chronic pain condition.
Further, the fact that the MA found that the respondent was grossly dysfunctional and in a great deal of pain merely means that the MA found that the respondent had a very poor function of her left arm. It in no way demonstrates any inconsistency between the respondent’s symptoms and what the MA found from his clinical observations of the respondent.
The fact that the ultrasound investigation revealed no significant features does not mean that there was no pathology within the respondent’s left shoulder that accounted for her dysfunction and pain in her left shoulder. An ultrasound is the least reliable investigation that can be done to determine an underlying pathology. Oftentimes, an MRI or MRA investigation is needed for that purpose. Simply put, the fact that nothing was revealed in the ultrasound does not mean there was any inconsistency in the respondent’s presentation at the time the MA examined her.
The appellant’s submission to the effect that the MA was wrong to conclude that the respondent’s presentation was consistent because he found the respondent had pain radiating from her cervical spine to between the shoulder blades in a circumstance where he did not find the respondent had any restricted range of movement of her right shoulder, is also rejected by the Appeal Panel. The restriction the respondent has of movement in her left shoulder is due to her left shoulder. The fact that pain that she experiences in her cervical spine, which radiates down between her shoulder blades, does not impede her movement of her right shoulder is entirely irrelevant to the respondent’s impairment consequent upon her restricted movement of her left shoulder.
The Guidelines at [2.5] do not mandate that a MA conduct repeated testing of a worker’s range of movement of a joint in the upper extremity. Nothing within the Guidelines mandate that. It is a matter for the clinical judgment of the assessor as to whether that should be done. Indeed, in a circumstance such as here, where the respondent had marked pain with the movement of her left shoulder, to require repeated movements would be a cruel thing to do.
The Guidelines also do not mandate that passive range of motion of a worker’s joints in upper extremity be determined to ascertain the clinical status of the particular joint. That also is a matter left to the clinical judgement of the assessor. Indeed, the Guidelines require, at [2.5], that impairment only be based upon active range of motion measurements. That is what the MA did.
In short, there is nothing on the face of the MAC that indicates the MA made an error in concluding that the respondent’s presentation at examination was consistent and, given that, there is no error in the MA, in the exercise of his clinical judgment, using the respondent’s impaired range of motion of her left shoulder to establish the respondent’s impairment of her left upper shoulder. In other words, the MA’s assessment of the respondent’s left upper extremity, insofar as it involved the respondent’s shoulder, was based on correct criteria and contained no error.
The MAC however does contain a demonstrable error because the MA included in his assessment of the respondent’s WPI a rating for the impaired function the respondent has of her left elbow. The assessment the MA was required to perform was limited by the dispute that was referred to him to assess, which was identified in the referral.[1] Insofar as that dispute concerned the left upper extremity, it involved only the left shoulder, not the left elbow.
[1] Skates v Hills Industries Ltd [2021] NSWCA 142 per Baston JA at [27]-[30] and Leeming JA [45]-[48].
The impairment of the respondent’s left upper extremity with respect to the limited range of movement to the left elbow must be excluded. When that is done, the respondent has a 25% left upper extremity impairment, relating only to the restricted movement of her left shoulder. That equates to 15% WPI.
When that is combined with the 5% WPI the respondent has with respect to her lumbar spine and the 8% WPI she has with respect to her cervical spine, the figure of 26% WPI is achieved. That is what the Appeal Panel assesses the respondent’s WPI to be from the injury to her lumbar spine on 26 August 2018 and the consequential conditions in her cervical spine and left upper extremity (shoulder).
For these reasons, the Appeal Panel has determined that the MAC issued on 1 December 2021 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
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 Tim Anderson 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. Lumbar spine | 28/8/2016 | chap 4 | p 384 Table 15-3 | 5 | - | 5 |
| 2. Cervical spine | chap 4 | p 392 Table 15-5 | 8 | - | 8 | |
| 3. Left upper extremity | chap 2 | pp 474-479 | 15 | - | 15 | |
| Total % WPI (the Combined Table values of all sub-totals) | 26% | |||||
Marshal Douglas
Member
James Bodel
Medical Assessor
David Crocker
Medical Assessor
1 April 2022
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