Bankstown District Sports Club Ltd v Manca
[2023] NSWPICMP 567
•13 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bankstown District Sports Club Ltd v Manca [2023] NSWPICMP 567 |
| APPELLANT: | Bankstown District Sports Club Ltd |
| RESPONDENT: | Stefania Manca |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 13 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal by employer from Medical Assessor’s (MA) range of motion (ROM) findings; whether MA should have used alternative method to measuring pursuant to the Guides; whether MA’s reasoning adequate to explain his ROM findings when he expressed some reservations about the claimant’s presentation; Held – clinical judgement an important part of whether alternative methods used; MA aware of inconsistencies on presentation; his explanation for accepting the impugned ROM method adequately explained; Ferguson v State of NSW considered and applied; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 July 2023 Bankstown District Sports Club Ltd, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mohammed Assem, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 June 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 16 June 2023 the delegate of the President referred this matter for an assessment of WPI caused by injury to the left lower extremity (knee) and right upper extremity (shoulder) which occurred on 18 July 2019.
Ms Manca was employed as a full-time chef in the La Piazza section of the Bankstown Sports Club, a business of the respondent.
In her statement of 8 May 2023 Ms Manca said that on 18 July 2019 she was cooking 200kg pasta alone. She lifted a large tray of the pasta off the industrial pasta cooker in order to put it in a plastic container containing water and ice to cool the pasta down. As she lifted the tray of pasta off the container, the trolley she was using toppled over falling towards her “with all my stuff on top of it”.
She stepped back to avoid the trolley but it hit her in the region of the left knee and the left thigh. She lost balance whilst stepping back and gripping the tray of pasta, injuring her shoulder and back.
Investigations were carried out, and Ms Manca underwent physiotherapy and hydrotherapy.
She returned to work on suitable duties at reduced hours in an office environment whilst ambulating with crutches.
She ceased working two months later due to the COVID 19 pandemic and her pregnancy. She resumed working as a part-time chef six hours per week from May 2021 until June 2022.
The Medical Assessor assessed a 14% WPI being 10% in respect of the injury to the right shoulder and 4% in respect of the injury to the left knee.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination (which was not in any event requested by the appellant employer) as no error was found.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant employer appealed on the basis that the Medical Assessor had erred in the method he used to assess the right upper extremity (shoulder).
The MAC
As to consistency of presentation, the Medical Assessor said:[1]
“[Ms Manca’s] complaints and limitations are disproportionate to the nature of the underlying pathology and inconsistent with her ability to work as a part-time chef from May 2021 until June 2022. Her shoulder movement appear to have varied over time. Dr Harrington examined on 23 September 2019 and noted a full range of passive, but active flexion and abduction was limited to 90°. Dr Dias, occupational physician, examined on 21 June 2021 and noted a limitation in flexion and abduction to 90°. Dr Rimmer, orthopaedic surgeon examined on 19 January 2022 noted flexion to 90°, abduction to 75° and external rotation 80°.”
[1] Appeal papers page 35.
On examination the Medical Assessor used the range of motion method to assess Ms Manca’s underlying impairment. In examining Ms Manca the Medical Assessor said:[2]
“There was tenderness anteriorly. There were no joint crepitations. There was no instability. Provocative tests for impingement could not be performed due to a marked restriction in shoulder motion. There was winging of her right scapular.”
[2] Appeal papers page 33.
The Medical Assessor then measured the limitations in range of movement in Ms Manca’s two shoulders. He said:[3]
“I brought to attention that other medical examiners obtained a better range of motion. She did not respond. I repeated the examination and noted similar findings apart from a slighter greater restriction in shoulder abduction to 50°.”
[3] Appeal papers page 34.
In giving his reasons for assessment the Medical Assessor said:[4]
“According to the pie charts of upper extremity impairment (AMA5, Section 16.4i), she has limitation in right shoulder motion giving 17% RUEI[5] or 10% WPI. Although there were some inconsistencies noted, other medical examiners have documented similar restrictions. I therefore considered that the range observed was a reasonable reflection of the underlying impairment.”
[4] Appeal papers page 35.
[5] AMA5, Figures 16-40, 16-43, 16-46, pages 476-479.
The Medical Assessor noted the comments made by Dr Chris Harrington noting that Dr Harrington thought:[6]
“She is reluctant to use her knee and she has a total dependence on crutches; it is almost like auto-amputating her leg below the knee rather than trying to start the rehabilitation process to achieve a good outcome. She has taken her knee out of the equation so that her symptoms are magnified.”
[6] Appeal papers page 36.
The Medical Assessor in noting the report of Dr Stephen Rimmer of 19 January 2022 noted Dr Rimmer’s conclusion “…. that her overwhelming presentations was abnormal illness behaviour…”
The Medical Assessor said:[7]
“I would agree with Dr Rimmer that there may be there may be a psychological component manifesting as abnormal illness behaviour, but she has consistently demonstrated restrictions in her right shoulder movements. Apart from Dr Rimmer, all other medical examiners also obtain some restriction in left knee motion. I have therefore considered that the range obtained at the time my assessment was a relatively accurate reflection of the underlying stability.”
SUBMISSIONS
[7] Appeal papers page 37.
The appellant employer carefully examined the medical evidence that was before the Medical Assessor. It noted that the original presentation was of knee pain after a food tray fell on to her left distal femur, and that the right shoulder problem was recorded by Dr Antoun, Ms Manca’s general practitioner (GP) on 22 July 2019 as being a “minor ache” in the right shoulder from jumping backwards.
Dr Antoun noted that there was no specific injury to the shoulder.
We were referred to further evidence which tended to demonstrate that Ms Manca was not a reliable historian, with a tendency to histrionics on presentation to the various medical practitioners, particularly Dr Rimmer.
The appellant employer noted that the Medical Assessor used the range of motion methodology to measure her impairment. It noted that in fact the Medical Assessor drew Ms Manca’s attention to her inconsistent conduct regarding the measurements and that she did not respond.
It was submitted that the opinions of other experts carried no obligation for a Medical Assessor to apply or even explain his view of them. It was acknowledged that he was required to make an assessment on the basis of his training, experience, qualifications and expertise but nonetheless when Ms Manca demonstrated such a markedly increased restriction in her range of movement he should have suspected the validity of his measurements, particularly when compared to other examinations in the evidence. It was significant that the discrepancy was so great that the Medical Assessor actually asked her to comment.
This was so, it was argued, particularly in view of the relatively minor nature of the pathology.
The appellant employer referred to the Medical Assessor’s comments regarding consistency of presentation. It also submitted that that presentation was inconsistent with Ms Manca’s ability to perform part time work as a chef subsequent to the injury, as she had demonstrated she could do.
It was irrelevant, it was argued, that other medical experts had consistently measured the same restriction in shoulder movement. The Medical Assessor’s opinion should have allowed for the significance of Ms Manca’s presentation at the time of the assessment. At that time the Medical Assessor himself confirmed that the limitations of motion were disproportionate to the pathology and particularly more severe when compared to the other assessments. However Ms Manca did not offer any explanation as to why that should be.
We were referred to Chapter 2.5 of the Guides regarding range of motion and particularly the alternative methodology that was available if a Medical Assessor was not satisfied as to the reliability as to the range of motion measurements.
We were also referred to Chapter 1.36 of the Guides and the option therein available to the Medical Assessor that he could have modified his impairment rating and explained why he had done so.
The appellant employer acknowledged that the Medical Assessor had in fact done repeated testing, but rather than confirm the original measurements, the repeats had showed even greater restriction.
These circumstances were a sufficient basis, it was submitted, for the Medical Assessor to utilise the other methods available to him, particularly Chapter 1.36 of the Guides. The appropriate analogy would have been that of a mild degree of inflammation on the acromioclavicular joint. We were referred to the relevant Tables in AMA 5 in that regard.
The appellant employer submitted that accordingly a 2% WPI should have been applied. That would have resulted in a total combined value WPI of 6%.
The respondent worker
The respondent submitted that the Medical Assessor had recognised that Ms Manca’s presentation was disproportionate to the underlying pathology and inconsistent with her ability to work part-time subsequent to the injury. The Medical Assessor explained why he made the assessment he did and why he was able to use the methodology of assessing range of motion.
We were referred to Glenn William Parker v Select Civil Pty Limited[8] which approved the now well-known dicta of Campbell J in Ferguson v State of New South Wales[9] where his Honour said the pre-eminence of the clinical observations cannot be understated.
[8] [2018] NSWSC 140 at [65].
[9] [2017] NSWSC 887 at [23].
We were referred to Chapter 2.3 of the Guides regarding the approach to be taken to an assessment of the upper extremity and that such an assessment mainly involved clinical evaluation.
DISCUSSION
In Ferguson, Campbell J said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
The often-quoted dicta of Campbell J in Ferguson concerned a psychiatric injury. In Jenkins Garling J said at [54]:
“….. Particularly with the assessment of psychiatric or psychological impairment, so much, in my view, is self-evident. There is no objective method by which the extent of a psychiatric impairment can be measured, unlike the objective measurement of a restriction on a degree of movement in an upper limb, by way of example, or an objective, and measurable, assessment of the extent of loss of hearing or eyesight.”
A Medical Assessor has more objective criteria at his disposal in such medical fields, which the appellant employer referred to. Chapter 1.36 of the Guides provides:
“Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment 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, the 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 modification in writing. This paragraph applies to inconsistent presentation only.”
Chapter 2.5 of the Guides provides:
“Range of motion (ROM) is assessed as follows:
▪ A goniometer or inclinometer must be used, where clinically indicated.
▪ Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
▪ If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation.
▪ If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Introduction.
▪ If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present”.
The appellant employer does not allege that the Medical Assessor made his assessment in breach of all the matters referred to by Campbell J in discussing the Wark decision. The Medical Assessor was plainly aware of the significant factual matter raised in this case, namely, the disproportionate complaints and limitation of movement Ms Manca exhibited during the assessment.
The appellant employer could not demonstrate that the Medical Assessor had misunderstood the issue, as he referred to it and explained his decision to accept the measurements he recorded, despite his misgivings.
Accordingly, the errors alleged by the appellant employer related to the adequacy of the reasons given by the Medical Assessor, and in particular that his reasoning process was unsupportable, and his acceptance of the measurements he recorded was glaringly improbable.
A Medical Assessor’s duty is similar to that of an Appeal Panel as described in Wingfoot Australia Partners Pty Ltd v Kocak,[10] as found by Adams J in Western Sydney Local Health District v Chan:[11]
“The function of a Medical Panel is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[10] [2013] HCA 43.
[11] [2015] NSWSC 1968 at [13].
Further, the duty was described as follows:
“What is to be set out in the Statement of Reasons the Medical Panel is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.”
The Medical Assessor noted there was a marked restriction in Ms Manca’s shoulder motion and that her complaints and limitations were disproportionate to the nature of the underlying pathology. He also observed that her presentation was inconsistent with the fact that she had worked as a part time chef from May 2021 until June 2022.
In her statement of 8 May 2023 Ms Manca detailed her work subsequent to the injury.[12]
[12] Appeal papers page 65.
She said that she was off work for about four months after the accident and that she returned to work on restricted duties and hours in November 2019 upgrading her capacity to four hours per day, three days per week for a time before she returned to three hours per day, two days per week.
Those light duties ceased in March 2020 as a result in the combination of both the COVID 19 pandemic and Ms Manca’s pregnancy.
In May 2021 she said she began employment as a part time chef doing restricted duties at an Italian Restaurant in Coogee working six hours per week.
These facts, as indicated, were known to the Medical Assessor, and it follows that, notwithstanding his expressed reservations about Ms Manca’s presentation, he determined on clinical grounds to accept the measurements he took.
Again in Jenkins, Garling J said at [54]:
“…A reasonable reading of [the Guideline} underlines the usual process engaged in by a medical expert when assessing the presenting condition, the diagnosis, and the severity of the condition which is being presented. [The Guideline] requires medical specialists to exercise their clinical judgment. Whilst it is correct to say that the words in the following sentence in [the Guideline] require the medical expert to determine a degree of permanent impairment ‘... using the tables, graphs and methodology given ...’, (emphasis added) that does not mean that clinical judgment or assessment has no role to play in that process of determination of the degree of permanent impairment...”
At [32] Garling J set out the terms of the Guideline, which has since been repealed, although his Honour’s expression regarding the role of clinical judgement is no less relevant.
The assessments before the Medical Assessor for the right shoulder were:
· 90° active flexion and abduction (full passive range of movement) – Dr Harrington, 23 September 2019.[13]
· 90° for flexion and abduction, 30° for internal rotation - Dr Dias, 21 June 2021.[14]
· 90° flexion, 75° abduction, 80° external rotation, internal rotation was described as “(right buttock)” – Dr Rimmer, 19 January 2022.[15]
· 70° flexion, 70° abduction, 50° internal rotation, 20° external rotation – Medical Assessor 29 June 2023.
[13] Appeal papers page 649.
[14] Appeal papers page 102.
[15] Appeal papers page 642.
The circumstances under which a Medical Assessor may use the alternative methods of assessment are at his discretion. Inasmuch as the appellant employer argued that the inconsistencies recognised by the Medical Assessor should have caused him to adopt a different methodology as was available to him under the Guides, Chapter 1.36 enabled him to modify the rating if the medical evidence appeared insufficient to verify the range of motion results. Chapter 2.5 has a similar choice where the Medical Assessor is enjoined to use his discretion in considering the other evidence to decide whether an impairment is present, if the measurements could not be used as a valid parameter.
The Medical Assessor declined to do so. He was aware of the reservations that some other Medical Assessors expressed and indeed he noted those inconsistencies quite clearly as we have indicated. However, he was able to use his clinical judgment and expertise to determine that the range of motion he measured was reliable. His reference to other measurements at other times was a prudent confirmation that his readings were consistent.
It follows that the method used by the Medical Assessor was open to him. The Medical Assessor clearly understood what the issues were, and he explained satisfactorily his reasons for accepting the methodology he employed to establish the range of motion in the right shoulder.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 June 2023 should be confirmed.
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