Ardler v Secretary, Department of Justice (Corrective Services NSW)
[2022] NSWPICMP 49
•16 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ardler v Secretary, Department of Justice (Corrective Services NSW) [2022] NSWPICMP 49 |
| APPELLANT: | Tanya Ardler |
| RESPONDENT: | Secretary, Department of Justice (Corrective Services NSW) |
| APPEAL PANEL: | Member Carolyn Rimmer |
| DATE OF DECISION: | 16 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker sustained injury to cervical spine and right upper extremity on 21 April 2016; Medical Assessor (MA) concluded that she had not reached Maximal Medical Improvement (MMI) and that the worker had not tried her best in performing during examination; MA did not address whether worker’s condition was well stabilised and was unlikely to change substantially in the next year with or without medical treatment as required in the guidelines; Held- that MA erred in not referring to and applying test for determining MMI as set out in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; worker re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 November 2021 Tanya Ardler (the appellant) made an application to appeal against a medical assessment (the appeal) to the Personal Injury Commission (the Commission). The medical assessment was made by Dr Yui-Key Ho, Medical Assessor (the MA) and issued 4 November 2021.
The respondent to the appeal is Secretary, Department of Justice (Corrective Services NSW).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act):
· 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 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
In these proceedings, the appellant is claiming lump sum compensation in respect of an injury to the cervical spine and right upper extremity as a result of the injury on 21 April 2016.
In the Further Amended Referral for Assessment of Permanent Impairment to Medical Assessor dated 12 August 2021, the matter was referred to the MA, Dr Yui-Key Ho, for assessment of whole person impairment (WPI) of the cervical spine and right upper extremity as a result of the injury on 21 April 2016.
The MA examined the appellant on 1 November 2021. He concluded that the appellant had not reached maximum medical improvement and therefore made no assessment of WPI.
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.
The appellant requested that she be re-examined by a MA, who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the appellant worker 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 MA for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr James Bodel of the Appeal Panel conducted an examination of the worker on 18 February 2022 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificates given by the MA 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.
The appellant’s submissions included the following:
(a) Ground 1 - the MA made a demonstrable error pursuant to s 327(3) of the 1998 Act by not referring to the test for determining Maximal Medical Improvement (MMI) as set out in the Guidelines.
(b) The MA issued a Medical Assessment Certificate (MAC) on 4 November 2021 in relation to the orthopaedic injuries suffered by the appellant from the injury of 21 April 2016 to her cervical spine and right upper extremity.
(c) The MA did not offer an assessment for either body system on the basis that the appellant had not reached MMI (Paragraph 10(a) page 5 of the MAC).
(d) When the MA made his finding that MMI had not been reached, he concluded in Paragraph 10(a) of the MAC:
"I do not think that she has reached [MMI]". Even though the injury is more than 5 years ago ... I seldom see a case of frozen shoulder being so bad like this sort of range of movement without causing reasonable wasting of the muscle ... (through) lack of use”.
(e) The Guidelines set out a test for determining MMI in Appendix 1: Key definitions on page 83 of the Guidelines, and state "(MMI) is considered to occur when the worker’s condition is well stabilised and unlikely to change substantially in the next year with or without medical treatment".
(f) The MA found on clinical examination that the appellant has had a "frozen shoulder" for five years. He then found that as there was no muscle wasting, he would not find MMI. A finding that the appellant's condition has not changed for five years, suggests that it is unlikely that the impairment in the shoulder would change in the next year with or without treatment.
(g) The MA failed to apply the correct test when determining MMI and so made a demonstrable error. When the Guidelines mandate a test, it must be used by the MA when coming to his opinion (see Windley v Workers Compensation Nominal Insurer (2021) NSWCA (Hall J) 1125, particularly paragraph 75). The MA did not apply the test for determining MMI set out in the Guidelines as set out above.
(h) The MA, in effect, found he could not believe that the appellant's condition was genuine. In the reports of both Dr Peter Yu for the respondent and Dr Mastroianni for the appellant, neither doctor commented on a lack of muscle wasting. Dr Yu did attribute the restriction in the shoulder to diabetes mellitis, but he did not find a "lack of muscle wasting" to be a reason not to assess the WPI.
(i) Ground 2 - the MA made a demonstrable error pursuant to s 327(3) of the1998 Act, by requesting surveillance before he made an assessment under s 66 of the 1987 Act when he has no power to do so.
(j) In the last sentence of paragraph 10(a) of the MAC, the MA stated:
“Further assessment and management of the underlying issues most likely psychological will be required probably we may have to consider surveillance to look at her overall function of the right shoulder.”
(k) The statement by the MA not only imported an element of the MA assessing the credit of the applicant where there is no evidence before him of any credit issues but also went far beyond the powers that an MA has to request further evidence. These powers are set out in s121(11) (b) of the1998 Act, where the MA can "call for the production of medical records ... and other information". He does not have the power to order investigations either medical or otherwise.
(l) In not considering the matter on the material before him or making a proper request for other existing material, the MA led himself into a demonstrable error.
(m) That the matter be referred to the President to be referred to another MA for assessment given the fundamental errors made by the MA.
The respondent’s submissions include the following:
(a) Ground 1 - It was clear from the MAC that the MA was not at all satisfied that the impairment (if any) was permanent and that the degree of permanent impairment was fully ascertainable given the concerns he had with the appellant’s inconsistent functioning on the day particularly the voluntary resistance in any movement.
(b) The MA pointed out major concerns during the physical examination of the appellant including:
(i)finding it difficult to see a shoulder which was so stiff from the frozen shoulder but not causing any obvious muscle wasting in the whole right upper limb whether in the arm or in the forearm especially as she is right-handed, and
(ii)finding it difficult to understand her physical examination in the elbow noting that in the history, the appellant told him there was no stiffness in the hand or in the elbow but on physical examination in the elbow which he had done these three or four times there was marked discrepancy. He noted the flexion can be just 30˚ or 110˚. He added that while 30˚ would be less than 25˚ of normal and 110˚ would be 80˚ of normal. He specifically noted that he did not believe the appellant did her best to move the various joints certainly including the shoulder. He continued by saying that he seldom saw a case of frozen shoulder being so bad with this sort of range of movement without it causing reasonable wasting of the muscle because the joint would be all stiff and the right upper limb would totally lack use.
(c) The MA was ‘really doubtful’ based on the clinical examination he conducted on the day along with the big discrepancy of the elbow movement on different attempts.
(d) He was not able to elicit any passive movement at all as the appellant resisted any movement. The MA added: “That degree of marked stiffness in the shoulder which gone down to about 15% of normal cannot be associated with external rotation in neutral which is 30˚ on the right side roughly 50% of the normal side”.
(e) In summary, the MA explained that:
“All these physical findings will lead me to think she had not reached maximum medical improvement as she had not tried her best in performing during examination. Further assessment and management of the underlying issues most likely psychological will be required probably we may have to consider surveillance to look at her overall function of the right shoulder.”
(f) The appellant’s submissions were too narrow in suggesting that the MA has not addressed the Guidelines and failed to mention that the MA expressed clear concern about the appellant’s presentation in circumstances whereby she voluntarily resisted any movement, which would put MMI in issue or at least, result in MMI not being found in the circumstances.
(g) The appellant’s inconsistencies and resistance in participating in the assessment led the MA finding that MMI had not been reached. For these reasons further consideration needs to be given to the matters raised by the MA including further investigations to allow an accurate assessment to occur, for without same, the MA does not consider the condition is well stabilised and unlikely to change substantially in the next year with or without treatment.
(h) In light of the above, it was open to the MA to find that MMI had not been reached.
(i) Ground 2 - The appellant appeared to take issue with the MA stating that:
“Further assessment and management of the underlying issues most likely psychological will be required probably we may have to consider surveillance to look at her overall function of the right shoulder”.
(j) The appellant’s submissions were rather confusing as they were based on a premise that there was no evidence before the MA which raised any credit issues. The appellant then suggested that the MA acted outside his powers that were confined to s 121(11)(b) of the 1998 Act which refers to the MA being able to, “Call for the production of medical records… and other information”. Specifically, the appellant submitted that the MA did not have the power to order investigations either medical or otherwise.
(k) The MA did not order any investigations as was submitted by the appellant, but rather, referred to what he believed was required before MMI can be considered to be reached. Therefore, the MA has not acted outside his powers.
(l) The MA is an experienced assessor and his findings were based on various considerations including the appellant’s inconsistent presentation on the day of the assessment which raised cause for concern resulting in a finding that MMI not being reached at this time. The MA did this based on the evidence before him and his own examination.
(m) The appellant did not specifically raise the examination itself as being conducted in a way which would constitute error but rather, the appellant said that the MA fell into error by not relying upon the evidence before him. It was the evidence before the MA as well as his own physical examination of the appellant which he had considered before arriving at his overall conclusion, namely, that MMI has not been reached at this time.
(n) Accordingly, the respondent submits that there is no demonstrable error and the MAC 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 Vegan 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 section 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 MAC
Under “History Relating to the Injury”, the MA wrote:
“On the 21 April, 2016, she was driving to work and she stopped the car and as the swipe card was not working so her right hand had to be hitting on the button to communicate with security guard. The car door was opened and according to her statement the car was slowly rolling forward and ended up with her arm caught in the open car door and the metal plate on the gate. She ended up with hyperextension of the right shoulder, there was no injury to the cervical spine. She noticed pain and swelling including in the right hand and forearm region. She could not carry on to work and was taken to Shoalhaven Hospital. X-ray was done which was normal and she was sent home.
She went to see the family doctor five days later, according to the statement on 26 April, 2016. She was advised to be off work. At that time there was only complaint in the right wrist and forearm and ultrasound was organised for the right hand and wrist on the 4 May, 2016, a week after the injury and she advised to have physiotherapy. According to the GP note she started to complain of soreness and stiffness in the right shoulder roughly about a two weeks later with the GP note mentioning she complained of some shoulder stiffness on the 2 May, 2016, which was about two weeks after the injury and ended up with ultrasound on the right shoulder. It was only done two months after the injury on the 24 June, 2016 and besides that she also had an MRI done as she was referred to see Orthopaedic Surgeon Dr David Cossetto with the consultation on the 8 July, 2016, with a clinical diagnosis of right frozen shoulder, there was no upper limb neurology. MRI confirmed frozen shoulder. She had all sorts of conservative treatments under Dr Cossetto with steroid injection to the glenohumeral joint, physiotherapy but the response was not too good so she end [sic] up with shoulder surgery on the 6 April, 2017, one year after the injury with the release of the frozen shoulder. The surgery was not satisfactory and after that operation in July, 2017, according to Dr Cossetto she start to developed neck pain. MRI at that time was done on the 26 June, 2017, which was a relatively normal study.
She was then referred to see pain specialist Dr Ferris because all other treatments under Dr Cossetto for frozen shoulder including steroid injection creating severe reaction, physiotherapy and massage, while repeated MRI two years after injury in October, 2018 showing there was a less frozen shoulder features but the patient still had pain and stiffness. She was referred to pain specialist Dr Ferris in April, 2018, two years after the injury and one year after the shoulder surgery. There was no features of Chronic Regional Pain Syndrome according to Dr Ferris and she was advised to have right suprascapular nerve blockage as well as the STEPP program for pain management. She did not find the nerve injection helpful. The STEPP program was a bit helpful and she was last recommended to consider spinal stimulator in October, 2018 but that was not approved by the Insurance Company although patient was very keen to do that.”
Under “Findings on physical examination”, the MA wrote:
“On inspection there is no features to suggest Chronic Regional Pain Syndrome colour, temperature, sweating pattern are similar to both sides, skin texture the same, no difference in the hair and the nail growth or suggesting any atrophic changes of the soft tissue. The hand has full range of movement like the other side, similar in the wrist. The elbow was interesting. The first time I asked her to move, because the shoulder is stiff, so I just asked her to flex and extend the elbow on the side of body. It can fully extend with the help of gravity. On flexion against gravity it was 110˚ on the first try. Then I asked her to take off the coat on outside so that I could see the shoulder better. This time the elbow flexion was restricted to 30˚. She said she cannot control it. I asked her to try again as I mentioned to her that she did not complain of stiffness in the elbow. Then the third time she can flex it to 110˚ certainly still not as good as the other side which was 130˚. Supination and pronation are symmetrical to the other side. The shoulder is very stiff. Active movement for flexion is 30˚, extension is 20˚, abduction is 30˚, adduction is 10˚, external rotation is 20˚, internal rotation 20˚. I cannot elicit any passive movement because there is voluntary resistance for me to try although she actually does not complain of pain. One thing that is very strange is that despite right handed dominance with frozen shoulder for over five years there is no muscle wasting when I measure the right forearm and right arm at corresponding levels comparing the right and the left. Certainly there is no neurology in the right upper limb. Reflex jerks sensation are all normal. She certainly is very weak. External rotation in neutral on the normal side is 60˚ on the right side there is resistance for further movement after 30˚. In the cervical spine there was symmetrical loss of movement in every direction down to about 3/4 of normal. There was no obvious muscle spasm or guarding on movement of the neck.”
Under “Summary of injuries and diagnoses” the MA wrote:
“Tanya Ardler had slow speed low grade trauma in the right shoulder in terms of
hyperextension when the arm was caught between the boom gate as well as her car door. Initially there was some injury on the wrist where the impact was subsequently and within two weeks’ time she developed frozen shoulder which was mentioned to the family doctor and that failed to improve with all sorts of treatment in the last five years.”
Under “Consistency of presentation”, the MA wrote:
“I believe it is consistent with the history of injury and the initial presentations. I find it very strange on the date of examination with her physical findings.”
Under “Evaluation of Permanent Impairment”, the MA concluded that the right upper limb was “not yet stable/at maximum medical improvement”.
Under “Reasons for Assessment” the MA wrote:
“I do not think that she has reached maximum medical improvement. Even though the injury was over five years ago and all the time the diagnosis was quite obvious of frozen shoulder. I find it difficult to see a shoulder which is so stiff from the frozen shoulder but not causing any obvious muscle wasting in the whole right upper limb whether in the arm or in the forearm especially being that she is right handed. I also find it difficult to understand her physical examination in the elbow. In the history taking she told me there was no stiffness in the hand or in the elbow but on physical examination in the elbow I have done it three or four times there was marked discrepancy. The flexion can be just 30˚ or 110˚. While 30˚ would be less than 25% of normal and 110˚ will be 80% of normal. I do not think this patient tried her best to move the various joints certainly including the shoulder. I seldom see a case of frozen shoulder being so bad like this sort of range of movement without causing reasonable wasting of the muscle because the joint will be all stiff and the right upper limb will be totally lack of use. I understand in the medical report previous done by Dr Mastroiani or by Dr Yu in 2019 and 2020.[sic] The movement was as bad as what I find today. I am really doubtful based on the clinical examination the big discrepancy of the elbow movement on different attempts. Certainly I cannot elicit any passive movement at all as she voluntary resists any movement. That degree of marked stiffness in the shoulder which gone down to about 15% of normal cannot be associated with external rotation in neutral which is 30˚ on the right side roughly 50% of the normal side. All these physical findings will lead me to think she had not reached maximum medical improvement as she had not tried her best in performing during examination. Further assessment and management of the underlying issues most likely psychological will be required probably we may have to consider surveillance to look at her overall function of the right shoulder.
In making that assessment I have taken account of the following matters:-
I have considered the physical examination findings, investigations results, the detailed history and various reports in her file.”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above. The Appeal Panel accepts the findings on examination that the MA made in the MAC.
Assessment of the upper right extremity - Maximum Medical Improvement
Discussion
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Section 322(4) of the 1998 Act provides:
“A medical assessor may decline to make an assessment of the degree
of permanent impairment of an injured worker until the medical
assessor is satisfied that the impairment is permanent and that the
degree of permanent impairment is fully ascertainable. Proceedings
before a court or the Commission may be adjourned until the
assessment is made.”
Part 1.6 of the Guidelines sets out key principals of assessment:
"a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant 's relevant medical history and all available relevant medical information to determine:
·whether the condition has reached Maximum Medical Improvement (MMI)
·whether the claimant's compensable injury/condition has resulted in impairment
·whether the resultant impairment is permanent
·the degree of permanent impairment that results from the injury
·the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these guidelines
b. Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions
c. In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deduction for pre-existing injuries/conditions are to be clearly identified in the report and calculated. If in an unusual situation, a related injury/condition has not previously been identified, an assessor should record the nature of any previously unidentified injury/condition in their report and specify the casual connection to the relevant compensable injury or medical condition.
d. The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought… "
Paragraph 1.15 of the Guidelines provides:
“Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the workers condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”
Paragraph 1.16 of the Guidelines provides:
“If the medical assessor considers that the claimant's treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines."
In the first ground of appeal, the appellant submitted that the MA made a demonstrable error by not referring to the test for determining MMI as set out in the Guidelines.
The Appeal Panel noted the MA found that the appellant had not reached MMI. He stated that the physical findings on examination lead him to think she had not reached maximum medical improvement as she had not tried her best in performing during examination.
The MA did not address whether the appellant’s condition was well stabilised and was unlikely to change substantially in the next year with or without medical treatment as required in the Guidelines. While there was discrepancy in the range of the elbow movement on different attempts, this would not preclude an assessment of impairment being made. Paragraphs 1.36 of the Guidelines applies in situations where there was a discrepancy or inconsistency in presentation.
The Appeal Panel considered that the MA made a demonstrable error in not referring to and applying the test for determining MMI as set out in the Guidelines.
The Appeal Panel concluded that it was necessary for the appellant worker to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Dr Bodel re-examined the appellant on 18 February 2022. Dr Bodel provided the following report:
“The workers medical history, where it differs from previous records
I have carefully perused the assessment of the Degree of Permanent Impairment Medical Assessment Certificate prepared by Dr Yiu-key Ho. The date of the MAC is 04 November 2021.
Ms Ardler confirms the essential mechanism of the injury and confirms that in her role, with the Department of Communities and Justice (Department of Corrective Services NSW) that she was employed as a custodial officer at the South Coast Correctional Facility in Nowra, known as SCCC. She also confirms that she commenced work at that workplace on 27 September 2010 and worked full-time.
The injury occurred on 21 April 2016. She indicates that access to the property is through a boom gate. For several weeks, the “swipe card access system” had not been functioning and therefore she had to physically push on the button to communicate with a remote security where they then use the cameras to angle down on her and make a visual verification and open the gate remotely.
As she was doing this, she had to open the door and step out of her car and the car was on a slight slope. As the car moved, her right arm was caught between the metal plate of the gate and the car and was dragged back behind her. Her arm was hyper-extended at the shoulder and at the elbow.
She managed to get herself free although with difficulty. She also managed to get herself inside and reported the matter but she could not continue to work and she sought medical treatment and the x-rays showed no fractures. The initial treatment is recorded accurately.
She later developed increasing stiffness in the right shoulder and was seen by
Dr Cossetto who diagnosed a frozen shoulder (adhesive capsulitis).Dr Cossetto recommended surgery on the shoulder which was done a year later on 6 April 2017 but that has been of no value.
A second surgery was done in July 2017 which made matters worse and she also had neck pain, arm pain and numbness and tingling into the index and middle fingers of the right hand following that.
She then had treatment from Dr Paul Ferris, a Pain Specialist but she has found this of little value.
It is nearly six years since the injury occurred and her symptoms have not resolved. She is still left with very considerable neck pain, right shoulder girdle pain and arm pain which has not altered. She has not been able to return to work.
Additional history since the original Medical Assessment Certificate was performed
Nil.
Findings on clinical examination
Ms Ardler is a very pleasant lady of 54 years who is very anxious in her manner. She is wearing a loose fitting jacket and has great difficulty removing this because of virtually no movement at all in the region of the right shoulder.
When standing, I note there is no visible sign of spinal deformity but there is mild generalised wasting in the right shoulder and on careful tape measurement, there is wasting of the arm above the elbow on the right hand side but no wasting of the arm below the elbow and in fact, her dominant right forearm is a half centimetre greater in circumference than her left.
The positive signs of pathology on clinical testing therefore, are the wasting observed in the upper part of the arm above the elbow. Unfortunately, there are also significant signs of medical inconsistency which makes assessment difficult and I have encouraged her to give it her best.
She does complain of tenderness in the trapezius muscles at the base of the neck on both sides. There is guarding on the right side. She has a grossly restricted range of neck flexion, extension and rotation in all directions and I am satisfied that there is asymmetry of movement with a more restricted range rotation to the left.
She does have a grossly restricted range of right shoulder movement. Throughout the observation of the attempts of movement, there is agonist and antagonist contraction of the muscles which actively restricts available range of movement to be tested.
Because there is wasting, I am satisfied that there is pathology which will lead to impairment and therefore, I have followed the following instruction from the Work Cover Guidelines when assigning a range of motion in the right shoulder in this circumstance.
1.36 AMA5 (page 19) states:
Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual range of motion are good but imperfect indicators of persons efforts. The assessor must use their entire range of clinical skills and judgement when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, that medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.”
That applies in this circumstance. Figures contained in the table below are the estimates that I have made taking into consideration the range of clinical skills to estimate an appropriate degree of restriction in the region of the right shoulder consistent with the pathology which is known to exist.
Shoulder Movement
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
70°
180°
Extension
30°
50°
Adduction
10°
50°
Abduction
60°
180°
Internal rotation
40°
60°
External rotation
40°
60°
There is impingement in the right shoulder and there is tenderness over the rotator cuff in the region of the right shoulder.
On careful encouragement, there is full elbow, wrist and hand movement. There are no signs of temperature differential between the right and left arm and in the region of the hand. There are no nail changes or other trophic changes to suggest Complex Regional Pain Syndrome. The reflexes are present and equal. There is no clinical sign of median or ulnar nerve pathology and no sign of sensory loss in a dermatomal distribution or other signs of radiculopathy.
Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Comment
As I have indicated above, this lady presents with a difficult presentation. Her clinical assessment is fully ascertainable but there are significant elements of inconsistency as I have indicated above.
The positive physical finding however that indicates to me, that clinically, there is significant pathology in the region of the right shoulder is, the wasting around the shoulder girdle itself and the wasting of the arm above the elbow which is approximately 1.5cm smaller than the non-dominant left side. In the forearm below the elbow, the right forearm is a half centimetre greater in circumference than the left.
There are no signs of CRPS and no sign of reflex abnormality or sensory impairment or clinical evidence of radiculopathy.
I am satisfied that assessment of the level of Whole Person Impairment involving the cervical spine in the right upper extremity is ascertainable and the values are as follows:
Cervical spine – DRE Cervical Category II
Table 15-5 on Page 392 of AMA5 - 7% WPI
2% loading for interference in Activities of Daily Living.
Right Upper Extremity
The rateable restriction that I have recorded is assessed using Figure 16-40 on Page 476, Figure 16-43 on Page 477 and Figure 16-46 on Page 479.
There is a 19% Upper Extremity Impairment.
This converts to an 11% Whole Person Impairment using Table 16-3 on Page 439.
The final level of Whole Person Impairment is determined by combining the 11% for the Right Upper Extremity and the 7% for the cervical spine to give a 17% Whole Person Impairment in this case, using the Combined Values Chart on Page 604 of AMA5.”
The Appeal Panel has adopted the report and findings of Dr Bodel.
In summary, the first ground of appeal was made out. Following the re-examination by
Dr Bodel, the Appeal Panel was satisfied that the appellant’s condition was well stabilised and was unlikely to change substantially in the next year with or without medical treatment. The appellant has reached maximum medical improvement.The Appeal Panel therefore assessed 7% WPI for the cervical spine, and 11% WPI for the right upper extremity. This results in a total impairment of 17% WPI as a result of the injury on 21 April 2016.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 November 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 Yui-Key Ho 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) |
| Cervical spine | 21.04.2016 | Chapter 4 | Table 15-5 On page 392 of AMA5 DRE Cervical Category II | 7% | 0 | 7% |
| Right Upper Extremity (right shoulder) | 21.04.2016 | Chapter 2 | Figure 16-40 on page 476. Figure 16-43 on Page 477. Figure 16-46 on Page 479. | 11% | 0 | 11% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% WPI | |||||
Carolyn Rimmer
Member
James Bodel
Medical Assessor
David Crocker
Medical Assessor
16 March 2022
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