Bartlett v Secretary, Department of Education
[2024] NSWPICMP 289
•14 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bartlett v Secretary, Department of Education [2024] NSWPICMP 289 |
| APPELLANT: | Jan Bartlett |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Brian Stephenson |
| DATE OF DECISION: | 14 May 2024 |
| DATE OF AMENDMENT: | 23 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; agreed injury to cervical spine and left shoulder; worker also suffered impairment of right shoulder; application of Guidelines paragraph 2.20 and AMA 5 section 16.4i; Nguyen v Pasarela Pty Ltd referred to; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 January 2024 Jan Bartlett lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Rob Kuru, who issued a Medical Assessment Certificate (MAC) on 15 December 2023.
Ms Bartlett relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Bartlett was employed by the Secretary, Department of Education (the Secretary) as a teacher when she was assaulted by a student on 1 November 2017. She alleged in her Application to Resolve a Dispute that she suffered injury to her cervical spine and left and right upper extremities. On 16 November 2023 Ms Bartlett and the Secretary entered into consent orders which included an award in favour of the Secretary on the question of injury to Ms Bartlett’s right shoulder.
The Medical Assessor was asked to assess Ms Bartlett’s cervical spine and left shoulder. He assessed 7% whole person impairment (WPI). He assessed 7% WPI in respect of Ms Bartlett’s cervical spine and deducted one-tenth under s 323 of the 1998 Act, resulting in 6% WPI. He assessed 1% WPI in respect of Ms Bartlett’s left upper extremity (shoulder) and combined those assessments to reach 7% WPI.
PRELIMINARY REVIEW
We 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, we determined that Ms Bartlett should undergo a further medical examination. The Medical Assessor erred in failing to explain why he assessed the impairment resulting from the accepted injury to her left shoulder by reference to the range of movement of her right shoulder, merely making a bald reference to the requirements of the Guidelines. His failure set out a clear diagnosis in respect of Ms Bartlett’s shoulder injury necessitated an examination.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Medical Assessor Stephenson of the Appeal Panel conducted an examination of the worker on 1 May 2024 and reported to us. His report forms part of these reasons.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Ms Bartlett said that the Medical Assessor incorrectly applied paragraph 2.20 of the Guidelines. She noted the Medical Assessor’s statement that he was asked only to assess impairment of the left shoulder and said it appeared that he had presumed that her right shoulder was a normal, uninjured joint, thus applying incorrect criteria and making a demonstrable error.
Ms Bartlett also submitted that the Medical Assessor made a demonstrable error in that he failed to disclose his path of reasoning to explain why he determined that her right shoulder was a normal, uninjured joint. She said that it was uncontested that she did suffer from right shoulder symptoms and that there was ample evidence that she suffered symptoms in her right shoulder after the injury.
In reply, the Secretary submitted that there was no demonstrable error or application of incorrect criteria and that the Medical Assessor had provided reasons for his assessment, providing a comprehensive history, conducting a thorough examination, reviewing all of the documents and providing reasons for his assessment.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
The MAC
In a relatively brief MAC, the Medical Assessor took a history of the injury and Ms Bartlett’s treatment, recording that “she has not had any formal review of her shoulders”. He described her present symptoms:
“She has pain in her neck and stiffness rotating and extending her neck. She has headaches, which run from the occiput up to above the eyes. She has pain gardening and pruning trees.
She has pain over the shoulders and inability to elevate her arm above horizontal.”
The Medical Assessor noted that Ms Bartlett denied any previous injuries to her neck and shoulders.
Describing his examination, the Medical Assessor said:
“On examination she was a well looking woman in no obvious distress. Romberg’s test was negative. Trendelenburg’s test was normal. Heel-toe stance was normal. Lower limb reflexes were symmetrical. There was no clonus. Upper limb reflexes were similarly symmetrical, with a negative Hoffman test. Peripheral power was intact. Impingement tests for the shoulders were bilaterally positive.
Shoulder range of motion was assessed as follows:
MOVEMENT
RIGHT
LEFT
Flexion
80°
80°
Extension
20°
30°
Abduction
70°
70°
Adduction
10°
10°
Internal rotation
80°
80°
External rotation
30°
30°
When directed by the MAC template to summarise the injuries and diagnosis, the Medical Assessor said:
“Ms Bartlett was unfortunately punched in the left side of the face at school. She has had ongoing pain in her neck radiating over her shoulders associated with headaches since.”
That statement does not constitute a diagnosis and does not take account of the agreement that Ms Bartlett suffered an injury to her left shoulder.
The Medical Assessor set out his reasons for assessment:
“The cervical spine is assessed according to AMA 5 page 392, Table 15.5 as DRE Cervical Category II (5% whole person impairment). According to the SIRA Guidelines page 28, paragraph 4.34, an additional 2% is assessed for restrictions of activities of daily living.
The range of motion in the shoulders is assessed according to AMA 5 page 476 16.40, 477 16.43 and 479 16.46. According to SIRA page 15 paragraph 3.17, ‘If the contralateral “normal/uninjured” joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline, and is subtracted from the calculated impairment of the involved joint.’ 1% upper extremity impairment was assessed for differential range of motion between the shoulders. This then converts via AMA 5 page 439, Table 16.3 to 1% whole person impairment.”
The Medical Assessor commented on other reports. Relevantly to the issues on the appeal, he said:
“Dr Bodel has assessed impairment of both shoulders on the basis that they have symmetrically reduced range of motion. I have been asked to assess impairment only for the left shoulder. There is a minor difference in range of motion between the two and only 1% whole person impairment is assessable on the basis of restricted range of motion.
…
Dr Bentivoglio has not assessed impairment for the shoulders on the basis that he believes the shoulder symptoms originate from the injury to the neck.
Clinically Ms Bartlett has impingement/rotator cuff disease symmetrically affecting both shoulders. I would regard this as a separate pathology to her cervical spine. I note that her shoulders have not been formally assessed.”
The Medical Assessor’s substantive reasons for his assessment of Ms Bartlett’s shoulders appear to be those in the preceding sentence. He considered that she had bilateral rotator cuff disease.
The Medical Assessor determined that Ms Bartlett had degenerative spondylosis in her cervical spine and deducted one-tenth under s 323 of the 1998 Act. There is no appeal with respect to the assessment of Ms Bartlett’s cervical spine.
The Medical Assessor’s reasons are brief and we do not agree with the Secretary’s submission that the MAC is thorough or comprehensive.
Medical evidence
Ms Bartlett said in her statement that immediately following the assault, she began to experience pain, including in both her shoulders. When she attended Tamworth Base Hospital on the day of the injury, a medical officer recorded that she was struck on the left side of her face and that she suffered pain in her left shoulder and on the left side of her jaw, and headache.
Ms Bartlett saw her general practitioner on 15 November 2017 when she complained of neck pain following the incident on 1 November 2017. That was her main complaint at the ensuing consultations.
On 23 November 2017 Dr Adalja noted that Ms Bartlett was unable to raise both arms beyond 90° and had pain behind both shoulders, though she had normal power and reflexes in both upper limbs. The next reference to shoulder pain in those notes was a complaint of neck pain radiating to both shoulders on 28 March 2018.
Ms Bartlett was treated by Dr Volschenk at the Hunter Pain Clinic. He set out the history he obtained in his report dated 26 April 2018, including that she developed immediate cervical pain and pain in her jaw. He said that a full neurological examination demonstrated no abnormality in Ms Bartlett’s upper limbs. We note that a full neurological examination would not necessarily alert an examiner to rotator cuff impingement.
Dr Volschenk diagnosed a whiplash-associated disorder on a background of cervical spondylosis, which was causing cervical pain and cervicogenic headaches. He recommended interventional treatment in the form of diagnostic injections and, if positive, radiofrequency neurotomy. Dr Volschenk said on 7 August 2018 that that treatment provided no benefit and that Ms Bartlett’s headaches had not improved. He recommended a multidisciplinary pain program.
Dr Bodel, orthopaedic surgeon assessed Ms Bartlett at the request of her solicitors and reported on 6 December 2022. He recorded a history of immediate onset of pain to the neck and the upper part of her limbs. On examination, Dr Bodel noted complaints of pain in the top of both shoulders and that Ms Bartlett cannot push, pull or lift or use her arms overhead. Dr Bodel set out his examination findings and said:
“She has asymmetry of neck movement. There is a restricted range of shoulder movement in each shoulder and this is recorded in the table which follows.
Shoulder Movement
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
NORMAL ROM
Flexion
90°
90°
180°
Extension
30°
30°
50°
Adduction
10°
10°
50°
Abduction
70°
70°
180°
Internal rotation
50°
50°
90°
External rotation
50°
50°
50°
There is tenderness over the rotator cuff anteriorly and there is impingement in that region but no instability.”
Dr Bodel recorded a reduced range of movement in both shoulders which were equal on the right and left. He set out his diagnosis:
“The diagnosis here is a soft tissue injury involving the cervical spine, probably in the form of some aggravated degenerative disc disease and also musculoligamentous strain.
In the shoulders she has bilateral rotator cuff pathology and is quite stiff in shoulders and this has also been aggravated by this assault.”
Dr Bodel provided an impairment assessment for both shoulders.
Dr Bentivoglio, orthopaedic surgeon, examined Ms Bartlett at the request of the Secretary and reported on 8 March 2023. He did not take a history of shoulder injury or symptoms. He said:
“With her shoulders she demonstrated very little range of movement present in her shoulders. I could not however find any investigations done of her shoulders to determine whether she has any damage to her shoulders.”
When commenting on Dr Bodel’s report, Dr Bentivoglio said that “[t]he IME also gave her impairment rating for her shoulders even though they were not injured and impairment rating for her neck covers her upper limb complaints.”
Consideration
The parties entered into consent orders by which they agreed that Ms Bartlett suffered an injury to her left upper extremity (shoulder). That is consistent with her contemporaneous complaints. Ms Bartlett said that she did not have any problems with her shoulders before the injury. By entering into the consent orders, she agreed that any impairment of her right shoulder was not work related.
The Medical Assessor said that impingement tests were positive in both shoulders. He commented twice that Ms Bartlett’s shoulders have not been formally assessed. He may have meant that no radiological investigations have been undertaken and it does appear that Ms Bartlett has undergone little specific treatment for her shoulder injury. Dr Bodel made a formal assessment of her shoulders and diagnosed rotator cuff pathology.
The Medical Assessor assessed the range of motion of Ms Bartlett’s shoulders, which was the correct method to adopt. The measurement of the range of motion of the shoulder is described in section 16.4i of AMA 5 and is undertaken by measuring the motion impairment due to lack of movement in three different planes in accordance with pie charts. Figure 16-40 measures the impairment due to the lack of flexion and extension, figure 16-43 measures the lack of abduction and adduction and figure 16-46 measures the lack of internal and external rotation.
The Medical Assessor was required to consider paragraph 2.20 of the Guidelines:
“2.20 When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543).”
As Ms Bartlett’s submissions noted, the Medical Assessor cited the wrong paragraph number. He quoted the words of the second sentence of paragraph 2.20.
Paragraph 2.20 refers the reader to AMA Section 16.4c. The page number in the Guidelines is incorrect – section 16.4c appears on page 453. The following passage from section16.4c sheds further light on what it – and paragraph 2.20 – are intended to do. It reads:
“The measurements reported in the impairment tables and pie charts reflect the accepted average active range(s) of motion for each joint. However, certain people can have either lesser or greater joint flexibility than average. It is therefore most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal’ joint has a less than average mobility , the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the report.” (emphasis in original).
That passage confirms that what is being measured is the difference from the range of motion of a normal joint – or from the range of motion normal for the relevant worker.
In Nguyen v Pasarela Pty Ltd[3] Adamson J considered the application of paragraph 2.20 in a case where findings had been made that a worker had not suffered injury to the contralateral joints. The Approved Medical Specialist had applied paragraph 2.20 because there was an unexplained loss of motion in the opposite extremity and inconsistent presentation. Dismissing an application for judicial review of an appeal panel’s decision to confirm the MAC, her Honour said:[4]
“It is well-established that the reasons of a decision-maker such as the AMS or the Appeal Panel are to be given a fair and beneficial reading: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6. Applying this principle, it is, in my view, clear from the AMS’s reasons that his rationale for using the deduction method set out in cl 2.20 was:
1. there had been no injury to the contralateral joints of the left shoulder and the right wrist (because Arbitrator Wynyard had found that the contralateral joints had not suffered injuries within the meaning of s 4 of the 1987 Act);
2. notwithstanding (1), there was a loss of active range of motion in the contralateral joints of the left shoulder and the right wrist which manifested itself, either partly or wholly, in abnormal illness behaviour;
3. as a consequence of (1) and (2), the average range of motion set out in the impairment tables and the pie charts was inapplicable to the assessment of the claimant’s permanent impairment;
4. for this reason, the deduction method set out in cl 2.20 of the Guidelines (described by the AMS as ‘instructions from SIRA’) was at least suitable, if not required, in the present case to calculate impairment for loss of range of movement in the involved joint (the left wrist and the right shoulder).
The rationale for using the deduction method has been adequately explained. No ‘gap-filling’ is required to discern the pathway of reasoning since the reasons are sufficient to show how and why the AMS applied cl 2.20 of the Guidelines as part of his assessment of the claimant’s % WPI.”
[3] [2020] NSWSC 1730.
[4] At [61]-[62].
This case is different. There is no suggestion that Ms Bartlett did not present consistently and the Medical Assessor said she was cooperative.
The Medical Assessor set out the range of motion he observed in each of Ms Bartlett’s shoulders and said there was a minor difference between the range of movement of her left and right shoulders. His assessment was limited to the difference, thus effectively denying the consequences of the agreed injury.
Strict application of paragraph 2.20 without reference to the passage in AMA 5 to which it refers is not appropriate in Ms Bartlett’s case. The better assessment is by reference to the normal range of motion set out in section 16.4i of AMA 5.
Medical Assessor Stephenson assessed Ms Bartlett on behalf of the panel for the purpose of the appeal. He diagnosed tendinitis and impingement in her left shoulder, noting that the diagnosis is not one which is based on radiological investigations. The diagnosis confirms rotator cuff pathology. The range of movement is measured by reference to the normal range of motion and the percentage figures in the table are the upper extremity impairment resulting from the deviation from the normal range. We adopt Medical Assessor Stephenson’s examination results.
For these reasons, we have determined that the MAC issued on 15 December 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W6794/23 |
Appellant: | Jan Bartlett |
Respondent: | Secretary, Department of Education |
Examination Conducted By: | Dr J Brian Stephenson as member of the Appeal Panel |
Date of Examination: | 01 May 2024 |
The workers medical history, where it differs from previous records
On date of injury, she was about to take a class in the computer room which was two doors up from the classroom. She was standing in the classroom. There were two boys causing a distraction. She asked them to come into the classroom. They had been playing tag near the computer room table. One boy suddenly punched her on the side of the left side of the head, she did not see it coming.
Additional history since the original Medical Assessment Certificate was performed
The history confirmed by the appellant, Jan Bartlett was that she had a physical assault. She said she did not fall.
Her complaint was of neck pain and of bilateral shoulder pain.
The cervical spine in that regard was not appealed against.
Findings on clinical examination
Right Shoulder: AMA 5, Chapter 16, Page 470 – 476, Fig. 16-40 to Fig. 16-46
| Abduction | 80° | 5% |
| Adduction | 10° | 1% |
| Flexion | 60° | 8% |
| Extension | 30° | 1% |
| External Rotation | 40° | 1% |
| Internal Rotation | 20° | 4% |
Total 20% upper extremity which converts at AMA 5, Page 439, Table 16-3 to 12 % WPI
Appealed Left Upper Extremity Shoulder
| Abduction | 80° | 5% |
| Adduction | 10° | 1% |
| Flexion | 80° | 7% |
| Extension | 20° | 2% |
| External Rotation | 50° | 1% |
| Internal Rotation | 24° | 3% |
The 19% upper extremity converts to 11% WPI.
Conclusion: the history is given as injury to cervical spine which was not appealed. The diagnosis is of tendonitis and impingement of the left shoulder. The combination of 11% WPI with 7% WPI cervical spine gains 17% WPI as a result of the findings in the injuries claimed by the worker.
Results of any additional investigations since the original Medical Assessment Certificate
There were no results of any additional investigations since the original medical certificate. There were no actual radiology scans brought to the examination. The diagnosis is of bilateral rotator cuffs tendonitis and results of tendon impingement following the injury. Therefore, there were no x-rays or other tests available for review.
Opinion:
The diagnosis is satisfactory, the condition will remain as it is.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W6794/23 |
Applicant: | Jan Bartlett |
Respondent: | Secretary, Department of Education |
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 Medical Assessor Rob Kuru 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 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) |
| Cervical spine | 1.11.17 | Chapter 4, p 28, paragraph 4.34 | Chapter 15, table 15.15 p 392 | 7% | 1/10th | 6% |
| Left upper extremity (shoulder) | 1.11.17 | Chapter 2 | Chapter 16, table 16.3, figures 16.40 p 473, 16.43 p 477 and 16.46 p 479 | 11% | 0 | 11% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
5
0