Australian Unity Home Care Service Pty Ltd v Garcia
[2024] NSWPICMP 397
•21 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Australian Unity Home Care Service Pty Ltd v Garcia [2024] NSWPICMP 397 |
| APPELLANT: | Australian Unity Home Care Services Pty Limited |
| RESPONDENT: | Yvonne Garcia |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 21 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessments of the right upper and lower extremities; the employer appealed because the Medical Assessor did not examine the contralateral left side; respondent worker agreed as to error; a re-examination was considered necessary in the circumstances; full range of movement on left side; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 February 2024 the employer Australian Unity Home Care Services (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greggory Burrow, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 January 2024.
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.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant sought that the worker be subject to a re-examination by a Medical Assessor member of the Appeal Panel. Yvonne Garcia (the respondent worker) conceded error and that a re-examination was required. The Appeal Panel found error for the reasons set below and in the circumstances required that the worker be re-examined.
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
Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 29 May 2024 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, 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 submissions were made as follows:
(a) by the appellant attached to the Application to Appeal lodged on 21 February 2024;
(b) by the respondent worker attached to the Notice of Opposition lodged on 29 February 2024;
(c) by the appellant by way of further submissions in response lodged on 8 March 2024, and
(d) by the respondent worker by way of further submissions dated 11 March 2024.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 01/05/2020
· Body parts/systems referred: Lumbar spine
Right upper extremity
Right lower extremity
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. Lumbar spine
1/5/20
Para 4.33, 4.34 & 4.35
P 27 & 28
Table 15-3
P 384
7
0
7
2. Right upper extremity
P 25
Table 17-1
Figures 16-40, 16-43 & 16-46
Figures 16-28 and 16-31
17
0
17
3. Right lower extremity
Table 3.5 worksheet
Chapter 3
Table 17-9
Table 17-2
Table 17-33
P 546
14
0
14
Total % WPI (the Combined Table values of all sub-totals)
34%WPI
The employer appealed.
The appellant alleged error in the failure to carry out an examination as required by the Guidelines of the respondent worker’s movements of her left shoulder, left wrist or left hip while having found restricted range of movements of these joints on the right side. The respondent worker conceded error and that a re-examination was required.
The respondent worker also alleged error in the failure to assess Complex Regional Pain Syndrome (CRPS). The respondent did not formally cross-appeal. The appellant said in these circumstances the Appeal Panel could not consider CRPS. The respondent worker submitted the Appeal Panel could do so. The Appeal Panel will not consider the issue of CRPS or re-examine on this basis as it is not the subject of a cross appeal, was not part of the referral and the Medical Assessor makes very clear in the MAC that on the day of examination the criteria for CRPS were not met. Sufficient reasons were provided in this regard and this finding will stand.
The Medical Assessor took a history on examination as follows: (emphasis in original)
“• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
At work on 01/05/2020, a Friday evening, Ms Garcia was walking down a concrete path at a client’s home with a laundry basket, it had been raining and she slipped and fell, landing mostly on her right side. She was dizzy but was not knocked out and got herself up. It was towards the end of her shift but she managed to drive herself home. She had multiple areas of symptomatology and saw her General Practitioner the following Monday.
She was referred to physiotherapy.
With ongoing back and right hip pain, she was referred to Professor Seex, Neurosurgeon, 01/12/2020 and says a Right SI joint injection made her pain worse and was ‘paralysed’ by it.
A lumbar spine injection helped for 3 hours and then the pain recurred.
Cervical spine
On 27/06/2021, she was reviewed by Professor Seex for ongoing neck and right upper extremity pain and referred for MR scan of the cervical spine.
On 22/03/2022, Professor Seex offered a diagnosis of C6 radiculopathy resulting in right upper extremity radicular symptoms.
Right wrist /hand
On 08/06/2021, she was reviewed by Dr Dowd, Plastic and Hand Surgeon, who suggested a diagnosis of De Quervain’s tenosynovitis and carpal tunnel syndrome.
In August 2021, Dr Dowd reported that there was no evidence of tenosynovitis of flexor carpi radialis or the extensors of the first compartment, but there was persisting median nerve compression and recommended nerve studies.
She was referred to Pain Specialist, Dr Boesel.
On 20/06/2022, Dr Boesel diagnosed complex regional pain syndrome of the right upper extremity with discogenic lumbar pain and myofascial pain and comprehensive non-operative treatment was recommended including pain education and physiotherapy as well as a complex analgesic program.
· Present treatment:
Ms Garcia is currently taking Norgesic and Panadol Osteo on an occasional basis, as well as Mobic. No interventional treatment is planned.
· Present symptoms:
Lumbar Spine
Ms Garcia has severe low back pain, 9/10 (VAS) aggravated by prolonged sitting, standing and walking. She has no referred pain.
She is limited to walking on the flat 20 minutes and often uses a stick.
Right lower extremity/hip
She also identifies separate pain about the lateral aspect of her right hip measuring 7/10 which is worse with twisting and bending.
Right upper extremity: Wrist/hand
She has significant right wrist pain predominantly over the dorsum, worse with use and lifting, partly relieved by local heat and use of a brace.
Cervical spine
Whilst not part of the referral, Ms Garcia complains of marked mid and lower neck pain with trapezial pain, occipital headaches and referred pain down the right arm and forearm.
· Details of any previous or subsequent accidents, injuries or condition:
Ms Garcia has injured her right knee in a previous workers’ compensation condition as well as had right carpal tunnel surgery.
Ms Garcia says that as a result of her right hip problem, her right leg has given way on occasion and 2 months ago she sprained her right ankle, attended her General Practitioner and had x-rays. No fracture was identified apparently.
· General health:
· Hypertension;
· Diabetes Type 2;
· irritable Bowel Syndrome
· Bilateral cataracts
· Appendectomy;
· Tonsillectomy;
· Carpal tunnel release surgery 15 years ago;
Right knee arthroscopic debridement 15 years ago;
X 2 deep venous thrombosis requiring initially Clexane for 6 months and then Warfarin ongoing.
Medical allergies to penicillin and lactose.
Smokes 5-20 cigarettes a day, non-drinker.
Ms Garcia has been diagnosed with depression in 2002 which required treatment with Prozac. She has also been diagnosed with anxiety.
· Work history including previous work history if relevant:
She attended high school to Year 10 and completed studies in Business and as a Book Keeper and she has variously worked as a Ward Clerk and a medical Practice Manager. She secured employment with Australian Unity Home Care Service as an Aged Care Attendant, part-time at 20 hours a week. Her duties included client care, home chores, food preparation, driving and shopping. She is currently not working.
After the incident, she was unfit to work until around August 2020, returning to restricted part-time duties and continued them until she stopped working in November 2020 and the position was terminated on 01/08/2021.
· Social activities/ADL:
She lives with her healthy husband in their own home which is split level and she finds negotiating the stairs difficult.
She requires assistance with home chores from her family and friends, as well as maintenance of the garden.
She is able to drive over 30 minutes only.
She previously enjoyed bush walking, exercise walking, road cycling and car holidays.”
The Medical Assessor recorded of his physical examination the following:
“Height 170cm, weight 96kg.
During the history, she sat comfortably and rose cautiously for the exam, dressing and undressing cautiously.
Examination of her gait showed no limp. She was using a stick today and wearing a Tubigrip bandage about her right wrist.
Examination of the upper extremities for CRPS: While there was evidence of a slight colour change and swelling, there was no evidence of temperature change, trophic changes or joint stiffness. Further, there were no reports of allodynia. Today, she did not meet the criteria for assessment of CRPS Type 1 or Type 2 as per AMA Table 17.1.
Today she demonstrated full thumb and digital movement.
There was no evidence of median nerve sensory or motor dysfunction.
There was no evidence of triggering today of the long finger flexors. There were no signs of De Quervain’s disease with negative Finkelstein’s test.
Examination of the right wrist showed decreased movement including:
Extension 30°
Flexion 30°
Radial deviation 5°
Ulnar deviation 10°
She complained of pain and said it felt like ‘There is a knife in there’.
Elbow range of motion was full including supination and pronation.
Shoulder examination showed reduced movement including:
Flexion 140°
Extension 10°
Adduction 10°
Abduction 140°
External rotation in neutral 30°
Internal rotation in abduction 30°
External rotation in abduction 30°
During the examination of the right shoulder active range of motion, there appeared to be periods of delay where she ‘froze for a bit’. At this stage, she started weeping, explaining to me ‘You don’t get it … I really get scared when that happens’.
I checked with Ms Garcia that she was agreeable in continuing the examination and we did so.
Examination of the lower extremities showed no leg length discrepancy and quad and calf circumferences were equal.
She was tender over the right hip greater trochanter.
Hip range of motion was reduced including:
Flexion 80°
Extension 10°
Abduction 20°
Adduction 10°
Internal rotation 10°
External rotation 10°
Hip range of motion was exquisitely painful .
Examination of the knee and ankle showed a full range of motion.
Lumbar spine inspection showed normal alignment in the coronal and sagittal planes. There was paraspinal guarding. She was tender over the lower lumbar elements and the right SI joint. Lumbar movements were reduced by one third there was some asymmetry.
Straight leg raise today was 80° bilaterally and negative.
Examination of the lower extremities showed no radicular pattern weakness, no dermatomal pattern sensation changes, reflexes were present and symmetrical.”
Of the special investigations the Medical Assessor noted as follows:
“14/05/2020: CT scan lumbosacral spine: Multi-level degenerative changes with left sided paracentral disc prolapse at L5/S1 abutting the S1 nerve root.
08/09/2020: Ultrasound right hip with x-ray reported findings consistent with trochanteric bursitis and minor degenerative changes of the hip joint.
24/01/2021: MR scan right wrist: Reported synovitis about the ulnar styloid.
14/01/2022: MR scan cervical spine: Disc osteophyte at C5/6, C6/7 and C4/5 with moderate-severe foraminal stenoses.”
The Medical Assessor summarised the injury and diagnosis as follows: (emphasis in original)
“• summary of injuries and diagnoses:
Ms Garcia fell at work on 01/05/2020 and reports multiple musculoskeletal injuries.
She has degenerative changes about the multiple areas of the cervical spine and not been referred for assessment of impairment.
Her soft tissue injury to the right wrist is variously diagnosed as De Quervain’s disease, tenosynovitis of the fingers and FCR, complicated by Type 1 CRPS.
She has had marked low back pain, degenerative changes but no evidence of frank radiculopathy today and had temporary relief of back pain after spinal injection but had increased symptoms after right SI joint injection.
Right Hip
She has had persistent lateral hip pain associated with reduced range of motion of the right hip with trochanteric bursitis reported on ultrasound and minor degenerative changes reported from the hip joint.
She has had no surgery to date, extensive non-operative treatment including treatment for CRPS and has ongoing symptoms.
Her position was terminated and she is no longer working.
She is undergoing no interventional treatment now but continues to take analgesia and no surgery is planned for the short to medium term.
· consistency of presentation
There was no abnormal illness behaviour. The history and examination is consistent.”
The Medical Assessor explained his assessment of impairment as follows: (emphasis in original)
“My opinion and assessment of whole person impairment
34% WPI.
In making that assessment I have taken account of the following matters:-
A comprehensive history, performed an extensive and thorough physical examination and examined the documents made available to me by the WCC and made reference to those in the body of this report, as required.
An explanation of my calculations (if applicable)
Lubmar Spine: AMA-5: Table 15-3: DRE II applies as she has asymmetric motion loss with evidence of guarding but no radicular signs: 5%-8% WPI.
Impact of ADL: Guides paragraphs 4.33, 4.34 and 4.35: 2% WPI as she requires assistance with yard, garden, sport, recreation and home care but is independent of self-care.
Total lumbar spine impairment: 7% WPI.
While there is evidence of degenerative changes on the lubmar spine imaging, there was no evidence of pre-existing impairment. Therefore, the deductible proportion is zero.
Right Upper Extremity:
CRPS: AMA-5, Table 17.1: She does not meet all the criteria specified in this Table to assess impairment for CRPS, acknowledging that she has been treated previously for CRPS and Dr Boesel assessed her for such at 21/11/2022.
Right Shoulder: AMA-5, Figures 16-40, 16-43 and 16-46: Motion impairments: 13% upper extremity impairment.
Right Wrist: AMA-5, Figures 16-28 and 16-31: Motion impairment: 17% upper extremity impairment.
There is no other impairment relating to the right upper extremity with no evidence of carpal tunnel syndrome today.
Combine 17%, 13% = 28% upper extremity impairment = 17% WPI.
There is no evidence of pre-existing impairment. The deductible proportion is zero.
Right Lower Extremity:
Right Hip: AMA-5, Table 17-9: Hip motion impairment: 35% lower extremity impairment = 14% WPI.
There is no additional impairment for trochanteric bursitis, as according to AMA-5,Table 17.2 range of motion cannot be combined with DBE.”
The Medical Assessor made brief comment on the other medical evidence Including differing medical opinion as follows: (emphasis in original)
“Professor Boesel has found 43% WPI as a result of the work conditions in the report of 21/11/2022.
As regards to right upper extremity impairment, Professor Boesel found impairment related to CRPS. In contrast, at examination today, with reference to AMA 5, Table 17.1, I found that all the criteria necessary for assessing impairment under CRPS were not met.
I agree there is impairment related to loss of active range of motion of the shoulder and the wrist, but found no impairment related to loss of movement of the fingers.
I agree with Professor Boesel’s assessment of the lumbar spine of DRE II Category Lumbar Spine but disagree with no additional impairment related to impact of ADL, she has difficulty with sport, recreation and home and garden care but is independent of self-care.
Right lower extremity: Professor Boesel did not assess the right lower extremity but in a subsequent report of 28/06/2023 agrees with the impairment assessment by Dr Gothelf of ‘8% for the hip’.
Dr Gothelf, by contrast, finds 19% whole person impairment.
I agree with Dr Gothelf’s finding that impairment for CRPS is not appropriate and also agree with the impairment assessment for lumbar spine, finding 7% WPI.
Dr Gothelf however finds a deductible proportion of one tenth for pre-existing degenerative changes, but notes no pre-existing degenerative impairment per se. I disagree with this assessment of deductible proportion, there are pre-existing degenerative changes on imaging but no evidence of pre-existing lumbar spine impairment per se. This
Dr Gothelf finds decreased range of motion of the shoulder as I did, but we have different examination findings accounting for the difference in our assessments.
Dr Gothelf found altered range of motion of the wrist and reduced range of motion at the shoulder but did not then assess impairment for motion loss of the shoulder. I therefore came to a different impairment assessment for the right upper extremity.”
The Medical Assessor did not make a deduction under s 323.
The Appellant seems to have accepted the physical findings on examination of the right extremities with the exception of the submission that the Medical Assessor has erred in making his assessments for the upper and lower extremities by not assessing the range of movement of the uninvolved left sided upper and lower extremities as is required. As noted, the respondent agreed that this was a demonstrable error, and there was general agreement that a re-examination of the worker was required.
The Appeal Panel agrees that error was made because the Medical Assessor not only did not refer to the range of movement of the left upper and lower extremities, he has not even mentioned them.
In the circumstances of a finding of error in this regard, a re-examination by a Medical Assessor who was also a member of the Appeal Panel was considered necessary. Dr Roger Pillemer, Medical Assessor, was appointed to conduct the re-examination and report to the Appeal Panel.
Dr Pillemer conducted the re-examination on 27 May 2024 and reported to the Appeal Panel as follows: (emphasis in original)
“PERSONAL INJURY COMMISSION
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-8199/23 |
Appellant: | YVONNE GARCIA |
Respondent: | Australian Unity Home Care Services |
Examination Conducted By: | Roger Pillemer |
Date of Examination: Attendance: | 27 May 2024 |
1. The workers medical history, where it differs from previous records.
I read Ms Garcia the history that she gave to Dr Burrow at the time of his consultation on 20 December 2023, and she agreed with this and did point out that she had only developed type 2 diabetes since her injury and her weight gain.
2. Additional history since the original Medical Assessment Certificate was performed.
Ms Garcia’s main concern is that she has severe symptoms on the right side of her neck and shoulder region going all the way down into her right hand, and these symptoms are constantly present, associated with pins and needles and numbness. Her other symptoms have been noted above.
The MA has noted that in relation to the cervical spine, under the heading ‘Present Symptoms’, ‘whilst not part of the referral, Ms Garcia complains of marked mid and lower neck pain with trapezial pain, occipital headaches and referred pain down her right arm and forearm’.
In relation to the right upper extremity (wrist/hand) he notes ‘She has significant right wrist pain predominantly over the dorsum, worse with use and lifting, partially relieved by local heat and use of a brace’.
3. Findings on clinical examination
The reason for today’s re-examination as noted was that the MA (Dr G Burrow) had not carried out examination of Ms Garcia’s movements of her left shoulder, left wrist or left hip while having found restricted range of movements of these joints on the right side.
I re-examined Ms Garcia’s right shoulder, right wrist and right hip and the ranges of movement were very similar to those suggested by the MA in his MAC.
Importantly, she does have a full range of pain free movement of her left shoulder, left wrist and left hip.
As noted, Ms Garcia’s main concern is discomfort in the right shoulder region radiating down her right arm and into the fingers of her right hand.
4. Results of any additional investigations since the original Medical Assessment Certificate
There have been no further additional investigations.”
The Appeal Panel considers that a thorough re-examination was conducted by Dr Pillemer and adopts his findings including the findings of a full range of movement on the uninvolved contralateral limbs (the left upper and lower extremities).
The reason for re-examination of the worker was to find out whether there was any restricted range of movement of her left shoulder, her left wrist and her left hip, which she does not have, and the ranges of movement on the right side suggested by the Medical Assessor were close to those that were found on re-examination, the assessments by the Medical Assessor will be confirmed.
This means that the MAC will be confirmed at 34% WPI and no deduction, noting the full range of movement of joints of the respondent worker’s left upper extremity and hip.
Accordingly the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 January 2024 should be confirmed.
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