BlueScope Steel Limited v Krstanoski
[2021] NSWPICMP 213
•10 November 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BlueScope Steel Limited v Krstanoski [2021] NSWPICMP 213 |
| APPELLANT: | BlueScope Steel Limited |
| RESPONDENT: | Sisoja Krstanoski |
| APPEAL PANEL: | Member Jane Peacock Dr James Bodel Dr Margaret Gibson |
| DATE OF DECISION: | 10 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Injury to left upper extremity, cervical spine and scarring; employer appealed; matter remitted to the Medical Assessor (MA) in accordance with orders made by an arbitrator after a contested hearing; the appellant submitted that the MA was only referred one date of injury namely 26 September 2016 and he has made an assessment across two dates of injury (26 September 2016 and 30 June 2018) in error; while a date of injury of 26 September 2016 was referred as the date on which the assessment of impairment should be based, the referral very clearly comprehended that the assessment of impairment should result from injury on 26 September 2016 and “consequential condition 30 June 2018 to the extent that there are identical pathologies in respect of that rotator cuff tear”; the MA did not expressly explain that he found the impairment to be indivisible between the impairment which resulted from the injury to the rotator cuff on 26 September 2016 and 30 June 2018; however a reading of the Medical Assessment Certificate (MAC) as a whole makes this clear; after having reviewed the evidence the Appeal Panel could discern no error in the approach of the MA; the impairment that has been assessed results from what has been referred to the MA for assessment; the failure to exclude the impairment that results from the pathology which the arbitrator has sought to have excluded, namely the fracture of the workers greater tuberosity, is of no moment because it is medically impossible to say what impairment, if any, would result from a fracture of the greater tuberosity in circumstances such as these where the rotator cuff was damaged to the extent it was and required surgery; any such impairment is subsumed in the overall impairment of the shoulder, such impairment having been assessed on the basis of ROM, in accordance with the criteria in the Guides, after the shoulder surgery undertaken which has been held to result from the work injuries, and is indivisible such that no separate impairment is assessable from the fracture of the greater tuberosity; Held -the Appeal Panel could discern no error and MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 June 2021 BlueScope Steel Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by
Dr You-Key Ho, a MA, who issued a Medical Assessment Certificate (MAC) on 2 June 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 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.
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.
The appellant requested that the worker be re-examined by a MA member of the Appeal Panel. As a result of it’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because, for the reasons set out below, the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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 MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
(a) Date of injury: 26 September, 2016, 30 June 2018
(b) Body parts/systems referred: Left upper extremity (both left shoulder and left wrist), but in the case of the left shoulder: Body parts:(a)Injury in the nature of rotator cuff tear of the applicant’s supraspinatus tendon suffered on 26 September, 2016 and consequential condition 30 June, 2018 to the extent that there are identical pathologies in respect of that rotator cuff tear, and
(b)not including any assessment for pathology suffered on 30 June, 2018 which is not identical to the pathology in (a) above (for example, the fracture of the applicant’s greater tuberosity-left shoulder).
Consequential condition in respect of the applicant’s cervical spine accepted to be caused by the left shoulder surgery on 12 December 2019;
And surgical scarring (left wrist and left shoulder).(c) Method of assessment: Whole Person Impairment”
This referral followed a determination by an Arbitrator as then known.
The MA issued a certificate certifying 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. Left Upper Extremity | 26 September, 2016, 30 June 2018 | Figure 16-28, 31, 40, 43, 46 | 24% | 0 | 24% | |
| 2. Cervical Spine | 26 September, 2016, 30 June 2018 | Table 15-3 | 5% | 0 | 5% | |
| 3. Scarring | 26 September, 2016, 30 June 2018 | TEMSKI | 1% | 0 | 1% | |
| 4. | ||||||
| 5. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 29% | |||||
The employer appealed.
In summary, the appellant submitted on appeal that the MA had made a demonstrable error and made an assessment on the basis of incorrect criteria. The submissions included the following:
(a) the MA has assessed an impairment of the left upper extremity (and in particular the left shoulder) simpliciter over two separate dates of injury without regard to the non-compensable fracture of the greater tuberosity. That is, an assessment was made in relation to the shoulder “there is obvious stiffness and residual inferior function”. He provides an explanation of his calculations based on figure 16-40, 43, 46 in MA Guide 5The edition and his examination. This clearly includes an assessment of impairment attributable to the fracture of the greater tuberosity. He was instructed to provide an assessment which did not include an allowance for the fracture of the greater tuberosity. There is no explanation by the MA as to what he has considered but it appears on its face that he has included the fracture and the assessment has therefore been made on the basis of incorrect criteria and also contains an obvious error,
(b) “For the same reasons in respect of the left shoulder”, the MA made an assessment of the cervical spine on the basis of incorrect criteria and also contains an obvious error, and
(c) the MA has “plainly aggregated pathologies over two dates of injury without engaging in or articulating an analysis or assessment of the compensable pathologies or engaging in or articulating an analysis or assessment of the pathologies not entitled to be included in the assessment.”
In summary, the respondent submitted that the MA did not make a demonstrable error or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the MA is to make an independent assessment on the day of examination. He must take a history, conduct an independent physical examination, have regard to the available radiological evidence and make an independent assessment.
The MA took a history broadly consistent with the other evidence before him. He conducted a physical examination and recorded his findings as follows:
“FINDINGS ON PHYSICAL EXAMINATION
Left Shoulder:
There is a surgical scar 12cm, which is quite obvious with tissue atrophy, for the insertion of the reverse prosthesis on the left shoulder. It shows some degree of muscle wasting, no obvious deformities. The left shoulder is stiff in movement in every direction. The range of movement are as follows: Flexion 100˚, extension 10˚, abduction 120˚, adduction 20˚, external rotation 50˚, and internal rotation 30˚.
Right Shoulder:
The right shoulder more or less has full range of movement in every direction.
Wrist:
The right wrist has good range of movement, the left is mildly impaired in every direction. Flexion 50˚, extension 50˚, radial deviation 15˚, ulnar deviation 25˚. There is a good surgical scar on the distal radius where internal fixation of the distal radius was done nearly five years ago. I cannot find any features to suggest carpal tunnel syndrome. There is no evidence of thenar muscle wasting or weakness, Phalan’s test and Tinel sign are symmetrical to the other side.
Cervical Spine:
There is muscle spasm on the left side and no deformities. He demonstrate asymmetric loss of movement. He showed me the worst movement is lateral rotation especially to the left side or sideward flexion to the right side because the pain on the left side of the neck and restriction to about 50% of normal. There is no neurological deficit in both upper limb.”
The MA had regard to the available radiological evidence as follows:
“Xray Left Wrist 21 November, 2016: After the internal fixation of distal radius with anatomical reduction and good position of the implant.
MRI Left Shoulder 16 August 2018: Showing a Hill Sach lesion and Bankart lesion all corresponding to history of frac dislocation and the avulsion fracture of the infraspinatus 15 mm in size and big full thickness tear of the supraspinatus with reasonable atrophy of the two muscles.
MRI Cervical Spine 26 September 2019: only showing mild degenerative changes.
MRI Left Shoulder 17 January 2018: Full thickness tear of the supraspinatus 25mm.X-ray Cervical Spine 11 September 2019: Mild multi-level degenerative changes.”
He summarised the injury and diagnosis as follows:
“He suffered two falls. The first one in 2016 he ended up with fracture left distal radius and left rotator cuff damages. He had another fall in 2018 and ended up with fracture dislocation of left shoulder and causing further problem requiring shoulder replacement.
(d) consistency of presentation
I believe the consistency of clinical presentation to the history of injury and the radiological finding.”
He explained his assessment as follows:
“I believe he has permanent impairment in relation to the left shoulder and left wrist. The left wrist had surgery nearly five years ago and ended up with very good functional outcome with mild residual stiffness and pain. We can assess the permanent impairment. The left shoulder has two injury, the first time causing damages of rotator cuff and the second time causing fracture dislocation and further damage of rotator cuff requiring reverse prosthesis but the operation was not having a very good result. There is obvious stiffness and residual inferior function. Operation has been done two and half years ago and he has reached maximum medical improvement.
For the cervical spine I believe he had muscle spasm, asymmetric loss of movement but definitely there is no features of radiculopathy. He has also reached maximum medical improvement and is suitable for assessment of permanent impairment.
a. An explanation of my calculations (if applicable)
In relation to the cervical spine and I will assess it at DRE cervical category II using AMA Guide 5th Edition table 15-5 with 5% whole person impairment. In relation to the left wrist using Figure 16-28, 31 flexion of 50˚ is 2% upper extremity impairment, extension 50˚ 2%, radial deviation of 15˚ 1%, ulnar deviation of 25˚ is 1% altogether is 6% upper extremity impairment. In relation to the shoulder using figure 16-40, 43, 46 in AMA Guide 5th Edition. Flexion of 100˚ is 5%, extension of 10˚ is 2%, abduction of 120˚ is 3%, adduction of 20˚ 1%, external rotation of 50˚ is 1%, internal rotation of 30˚ is 4% altogether is 16% upper extremity impairment. I do not think he has any trouble with carpal tunnel syndrome as explained above and certainly he will have permanent impairment due to insertion of the total shoulder replacement and based on table 27 of AMA Guide 5 there is a 24% upper limb impairment. When 24% is combine with 16% and 6% in the wrist will give rise to 40% upper limb impairment which will be equal to 24% Whole Person Impairment. In terms of scaring using the TEMSKI scale I will assess it as 1% Whole Person Impairment using WorkCover Guide 4th Edition, altogether that will be a 24% Whole Person Impairment and combined with 5% from cervical spine would be 29% whole person impairment.
Worksheet /actual calculations attached? No
b. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
I believe my assessment more or less concurred with Dr Breit in relation to the neck, the shoulder and the wrist. In relation to Dr Perko in his two report the first one he gave assessment to the cervical spine, the second one he did not give any impairment for the cervical spine. I do not agree with Dr Perko in relation to carpal tunnel syndrome because I cannot find any features to suggest carpal tunnel syndromes and that explains the difference of my assessment to him, while opinion of Dr Breit is quite similar to my conclusion.
c. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.”
The arbitrator summarised his determination as follows:
“(a) should the referral of the applicant for an assessment of whole person impairment by an MA be a referral in respect of only ye 2016 incident of injury?
YES
(b) should the assessment if impairment also be referred in respect of the 2018 incident of injury/
NO
9C) Did the 2018 injury (either incident or pathology) ‘result from’ the 2016 incident or pathology?
PARTLY
(d) if not, can the pathologies (or some of them) be aggregated nonetheless pursuant to section 322 of the 1998 Act?.
SOME OF THE PATHOLOGIES, YES.”
The arbitrator made the following findings:
“(a) On 26 September 2016 in the course of his employment with the respondent the applicant suffered injury to his left upper extremity (rotator cuff tear involving the supraspinatus tendon and left wrist being left distal radius fracture and ligament tear).
(b) On 20 June 2018 in the course of his employment with the respondent the applicant suffered a consequential condition to his left upper extremity namely pathology to the left rotator cuff as well as other non consequential conditions/pathologies in the left shoulder. The date of injury for the consequential condition is 26 September 2016.
(c) The applicant underwent surgery in respect of his left shoulder on 12 December 2018. The need for this surgery occurred partly because of the consequential condition identified in paragraph ..(a) above.
(d) As a result of the surgery the applicant suffered a consequential condition in respect of his cervical spine and scarring.”
On this basis the matter was remitted by the arbitrator for referral as follows:
“Date of injury: 26 September, 2016, 30 June 2018
Body parts/systems referred: Left upper extremity (both left shoulder and left wrist), but in the case of the left shoulder: Body parts:(a)Injury in the nature of rotator cuff tear of the applicant’s supraspinatus tendon suffered on 26 September, 2016 and consequential condition 30 June, 2018 to the extent that there are identical pathologies in respect of that rotator cuff tear, and
(b)not including any assessment for pathology suffered on 30 June, 2018 which is not identical to the pathology in (a) above (for example, the fracture of the applicant’s greater tuberosity-left shoulder).
Consequential condition in respect of the applicant’s cervical spine accepted to be caused by the left shoulder surgery on 12 December 2019;
And surgical scarring (left wrist and left shoulder).”
The Appeal Panel has carefully reviewed the MAC, the determination of the arbitrator and the other evidence that was before the MA. The MA made an assessment of impairment of the left shoulder on the basis of his ROM findings. This manner of assessment accords with the criteria in the Guides. The appellant submitted that he was only referred one date of injury namely 26 September 2016 and he has made an assessment across two dates of injury (26 September 2016 and 30 June 2018) in error.
While a date of injury of 26 September 2016 was referred as the date on which the assessment of impairment should be based, the referral very clearly comprehended that the assessment of impairment should result from injury on 26 September 2016 and “consequential condition 30 June 2018 to the extent that there are identical pathologies in respect of that rotator cuff tear”.
The MA did not expressly explain that he found the impairment to be indivisible between the impairment which resulted from the injury to the rotator cuff on 26 September 2016 and 30 June 2018. However a reading of the MAC as a whole makes this clear. After having reviewed the evidence the Appeal Panel could discern no error in the approach of the MA. The impairment that has been assessed results from what has been referred to the MA for assessment. The failure to exclude the impairment that results from the pathology which the arbitrator has sought to have excluded, namely the fracture of the workers greater tuberosity, is of no moment because it is medically impossible to say what impairment, if any, would result from a fracture of the greater tuberosity in circumstances such as these where the rotator cuff was damaged to the extent it was and required surgery. Any such impairment is subsumed in the overall impairment of the shoulder, such impairment having been assessed on the basis of ROM, in accordance with the criteria in the Guides, after the shoulder surgery undertaken which has been held to result from the work injuries, and is indivisible such that no separate impairment is assessable from the fracture of the greater tuberosity. The Appeal Panel can discern no error.
Similarly, in relation to the cervical spine assessment, the Appeal Panel can discern no error in the assessment by the MA which was in accordance with the criteria in the Guides.
There was no complaint about the scarring assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 June 2021 should be confirmed.
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