Blacktown City Council v Kennedy
[2021] NSWPICMP 75
•19 May 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Blacktown City Council v Kennedy [2021] NSWPICMP 75 |
| APPELLANT: | Blacktown City Council |
| RESPONDENT: | Michelle Kennedy |
| APPEAL PANEL: | Member Deborah Moore Dr James Bodel Dr Brian Noll |
| DATE OF DECISION: | 19 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant submitted that a section 323 deduction should have been made on the basis of both a pre-existing condition and surveillance material; Held- there was no evidence to suggest any pre-existing symptomatic disorder; the features depicted by the imaging studies are commonly found in people of the respondent’s group and are not necessarily associated with any symptomatic disorder or any functional limitations; there was no evidence that the surveillance material included images indicating that the respondent exceeded the MA’s recorded range of movement; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 February 2021 Blacktown City Council lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 28 January 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine the appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in two respects, namely in failing to make a deduction pursuant to s 323 of the 1998 Act and failing to have due regard to the contents of surveillance material included in the documents before him.
In reply, the respondent submits that no errors were made.
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 respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of the right upper extremity (shoulder) and left upper extremity (shoulder) resulting from an injury on 24 September 2019.
After documenting the history of the injury, the MA then noted present treatment before describing present symptoms as follows:
“Ms Kennedy has ongoing symptoms in both shoulder regions which are similar, but those on the right side worrying her very much more than on the left. She feels discomfort anteriorly and over the top of both shoulders going down towards her elbows, and symptoms are fairly constantly present although she can be reasonably comfortable when she is simply at rest, but never completely symptom free. She feels on the right side symptoms can go as high as 7-10/10, and on the left from 5-7/10.
Symptoms are aggravated particularly by any attempt at elevation of her arms, and also attempting to ‘chicken wing’, and any attempt to become active would aggravate her symptoms and for example she says she would not be able to scrub a toilet at this stage, which was so much a part of her job. She does get some relief by simply resting and taking her tablets.
On direct questioning Ms Kenney feels her symptoms have been severe from the onset and have not really improved, apart from the short improvement following the injection.
She also feels that her right shoulder sometimes ‘gets stuck’ and she has to rotate her shoulder to get it ‘unstuck’.
On direct questioning she does complain of pins and needles in the fingers of both hands, and these symptoms would seem to have come on some 6 months after her shoulder injury in September 2019. Once again, the right side worries her more than the left, and she wakes at night time and has to open and close the fingers of both hands and shake her hands around. On direct questioning she drops things during the day.”
The MA added:
“Ms Kennedy did not bring any investigations with her today, but I note from the reports forwarded to me that an MRI of her right shoulder on 1 November 2019 showed evidence of moderate rotator cuff tendinosis and no evidence of tear. There was moderate subacromial bursitis and early arthritis of the AC joint.
I also note that ultrasounds of both shoulders suggested some supraspinatus tendinosis and bursal thickening, but no evidence of a rotator cuff tear…
Ms Kennedy had no problems with her shoulders prior to early 2019 as noted in the body of the report.”
As regards social activities and activities of daily living (ADL’s) the MA said: “Ms Kennedy has difficulty with housework which is mainly done by her mother and her daughter. She manages with her self-care but her daughter has to brush her hair for her.”
The MA then set out his findings on physical examination, stating:
“Ms Kennedy complains of discomfort to palpation in the subacromial region on both sides. Importantly palpable crepitus is noted with active movements of both shoulders, being more noticeable on the right. [The range of shoulder movements were charted]. Reflexes in her upper limbs are present and equal and also importantly, excellent grip strength was present bilaterally.
She does have hypoaesthesia to pinprick in the median nerve distribution of both hands with positive Durkan’s test (development of paraesthesias with pressure over both carpal tunnels), suggestive of bilateral carpal tunnel syndromes. I would not relate these to her work at all.”
The MA summarised the injuries and diagnoses as follows:
“Ms Kennedy originally developed discomfort in her right shoulder injury in early 2019 with symptoms becoming very much more severe on 24 September 2019 while using a vacuum back-pack.
As noted, she subsequently developed similar but less marked symptoms in the left shoulder region while favouring the right side.
As far as diagnosis is concerned, she has evidence of rotator cuff tendinosis in both shoulders and as noted palpable crepitus was noted to be present.”
As regards consistency of presentation, the MA said:
“Ms Kennedy’s presentation was consistent today, and my only concern is with regard to the investigation report which was carried out on 11 November 2019 which showed a lady actively engaged in house moving and carrying various items into a dwelling, apparently without any particular discomfort.
As noted earlier in my report, Ms Kennedy informs me that after the onset of symptoms in September 2019 she had severe discomfort which did not improve. When I questioned her with regard to the findings on the video recording (which I have not seen), she says that she was simply helping two gentlemen with the removal, and that while she lifted pillows, she did not lift anything heavier than this and was simply ‘guiding’ the person pushing the various trolleys. Obviously then this is inconsistent with the findings on the video recording.
It remains my opinion however that Ms Kennedy does have very genuine ongoing symptoms with objective findings of palpable crepitus and the important finding of excellent grip strength bilaterally.”
The MA assessed 19% WPI.
When asked the question: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA replied “No.”
In commenting upon the other medical opinions, the MA said:
“I note the reports of Dr M Assem, rehabilitation specialist of 1 July 2020 who assessed both shoulders, and found restricted range of movement on both sides which he felt was equal, and suggested 8% WPI on each side, giving a total of 15% WPI. As noted my figures are slightly higher than those of Dr Assem.
There are reports of Dr R Rowe, orthopaedic surgeon of 31 January 2020 and 3 September 2020, noting that his findings are basically unchanged, and finding a range of movement of both shoulders similar to that which I found today. While Dr Rowe did feel that there was mild degenerative change in the rotator cuff on both sides with some degeneration in the AC joints, he felt that Ms Kennedy’s presentation was ‘…largely a reflection of non-organic factors’. He also felt that there was no evidence to relate her impairment to her employment, and it was interesting to note that his figures of employment are the same as those I found today, which would tend to indicate considerable consistency in Ms Kennedy’s presentation.”
The s 323 issue and that of the surveillance material are to an extent intertwined.
The appellant submits not only that a deduction is warranted due to the presence of degenerative changes but also because of the nature and extent of the respondent’s activities noted in the surveillance material.
The appellant submits as follows:
“The radiological evidence clearly shows evidence of degenerative changes present in both shoulders…
The ultrasound of the right shoulder performed on 27 September 2019…noted: ‘Changes of supraspinatus tendinosis without obvious tear. The remaining rotator cuff tendons and long head of biceps tendon appear intact. There is mild thickening of the overlying bursa with mild bursal bunching on abduction.’
The ultrasound of the left shoulder performed on 31 October 2019…noted: ‘There are changes of supraspinatus tendinosis and adjacent thickening of the subacromial bursa is noted. …’
The MRI of the right shoulder performed on 1 November 2019… noted: ‘There is moderate rotator cuff tendinosis however no evidence of tear is demonstrated. Moderate subacromial/subdeltoid bursitis. Early osteoarthritis AC joint. Moderate oedema within the distal clavicle is present, more marked comparted to the acromion; this may be seen with early distal clavicular osteolysis in the appropriate clinical setting. …’
The appellant notes the fact the radiological investigations indicates similar changes in both shoulders is supportive of there being degenerative changes in each shoulder…
Dr Rowe noted that there was some mild degenerative changes present in the rotator cuff on both sides with some degeneration in the AC joints. This is consistent with the findings of the radiological investigations. Dr Rowe considered that the degenerative changes to be contributing to the respondent’s symptoms. Dr Rowe noted the underlying degenerative changes in both shoulders is a reflection of age and constitutional factors…
The AMS does not explain why there should be no deduction in the face of medical evidence before him indicating…degenerative changes in the shoulders…
It was appropriate in all the circumstances that a deduction be made…
The AMS raised a concern as to the respondent’s presentation at examination… the response given to him at assessment is simply self-serving on the part of the respondent and should not have been accepted by the AMS in light of the observations reported on in the surveillance report…
The surveillance report shows the respondent to be carrying other numerous items without any apparent difficulty that are clearly not pillows and appear to be much heavier items than she would suggest she carried…
Dr Rowe formed the opinion the condition in the Respondent Workers shoulders were ‘largely a reflection of non-organic factors’ and he accordingly deducted 100% of his assessment of WPI for that reason.
The appellant submits that even if Dr Rowe’s opinion in that regard was not to be accepted in its entirety by the AMS, there remained a good basis to apply a deduction from the assessed WPI given the significant inconsistencies in what the respondent told the AMS and what was shown in the surveillance report…
The appellant submits that a deduction of 100% as applied by Dr Rowe is appropriate, but if not to be accepted, it remains appropriate in all the circumstances that a significant deduction be made from the assessment of WPI to account for the non-work related degenerative changes in the shoulders, the concerns raised by Dr Rowe and the significant inconsistencies in what the respondent told the AMS and what was shown in the surveillance report.”
To begin with, there is no evidence to suggest any pre-existing symptomatic disorder.
The appellant has focussed on the radiological reports in support of its submission that a significant deduction ought to be made.
The imaging studies were reported to show evidence of tendinosis. An ultrasound of the right shoulder on 20/09/19 was reported to show supraspinatus tendinosis and mild thickening of the overlying bursa and mild bunching of the bursa on abduction – but no other significant abnormality. An ultrasound of the left shoulder on 31/10/19 revealed similar features. Significantly, the MRI scan report included the following conclusion: “Images are significantly degraded by motion artefact limiting diagnostic assessment.”
In our view, the changes demonstrated on the MRI in particular are not all that significant.
The features depicted by the imaging studies are commonly found in people of Ms Kennedy’s age group and are not necessarily associated with any symptomatic disorder or any functional limitations.
Moreover, the MA made his assessment on the basis of the restricted range of shoulder movement as he is required to do, and he clearly noted and took into account the imaging studies.
In Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole), Schmidt J said that, “The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality…”
In the present case, the respondent confirmed to the MA her statement where she said that she did not experience any shoulder symptoms prior to the onset of her work injury.
The task of an MA is to assess impairment, not symptoms or disability, and in a case such as this, that assessment is most properly arrived at by reference to the range of movement demonstrated on examination.
In our view, there is no hard evidence to suggest that the degenerative changes contributed to the impairment such that we cannot see any error by the MA in this respect.
As regards the surveillance material, the MA clearly had some concerns initially, stating that it “showed a lady actively engaged in house moving and carrying various items into a dwelling, apparently without any particular discomfort.”
On questioning the respondent, the MA concluded that her response was indeed “inconsistent” with the surveillance material but nonetheless concluded that “Ms Kennedy does have very genuine ongoing symptoms with objective findings of palpable crepitus…”
In her statement the respondent said:
“I would like to clarify that this insurer surveillance occurred on the day that I was required to move houses, which I had notified my insurer of. This move had been planned before I had been injured and it was therefore necessary that I moved on this day because there was no way for me to change this.
The inherent nature of my injuries is that my pain and restriction comes and goes…On the day of my move, I had recently received a cortisone injection which had helped with my pain and restriction… I had lots of help from others… I was not performing any lifting outside of the restrictions listed in my Certificate of Capacity at the time…”
We note that Dr Assam in his report dated 1 July 2020 said: “The video surveillance provided by M & A Investigations dated November 2019 did not provide any images of her performing tasks beyond her reported limitations.”
There are clearly some difficulties with making an assessment when only still photographs are available accompanied by a written report.
Having said that, Rule 109 of the Personal Injury Commission Rules 2021 (the Rules) (in similar terms to the earlier Guidelines) provides:
“Surveillance recordings
(1) A party to proceedings may not submit a surveillance recording to a medical assessor in medical assessment proceedings for the purposes of the workers compensation legislation unless—
(a) exceptional circumstances exist, as determined by the Commission or the President, and
(b) the Commission or the President orders that the surveillance recording may be submitted.
(2) A party who wishes to submit a surveillance recording must—
(a) lodge the recording with the application or reply lodged by the party, and
(b) serve the recording on the other parties…”
There is no evidence that the appellant sought any such orders prior to the referral to the MA.
Nevertheless, the Panel has carefully considered the material. There was no evidence that the surveillance material included images indicating that the respondent exceeded the MA’s recorded range of movement.
The MA’s assessment is consistent with the observations of Dr Assam and the respondent’s statement to which we have referred, and we can see no error in his conclusions and findings relating to the surveillance report.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 January 2021 should be confirmed.
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