Brinkman v Exchange House Services Australia Pty Ltd (Herbert Smith Freehills)

DETERMINATION OF APPEAL PANEL
CITATION:	Brinkman v Exchange House Services Australia Pty Ltd (Herbert Smith Freehills) [2022] NSWPICMP 503
APPELLANT:	Anna Brinkman
RESPONDENT:	Exchange House Services Australia Pty Ltd (Herbert Smith Freehills)
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	6 December 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal from failure by Medical Assessor (MA) to assess shoulder injuries; referral in general terms of upper extremities only; MA determined liability regarding shoulders by finding no causal relationship with injury; Held – original referral confined by parenthesis to elbows only; appellant objected on basis that shoulders were also to be assessed; respondent agreed to amendment of referral on general description; MA made demonstrable jurisdictional error; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Jaffarie v Quality Castings Pty Ltd considered and applied; evidence showed agreement as to referral of shoulders as well; Skates v Hills Industries Ltd applied; Medical Assessment Certificate revoked and fresh certificate issued based on MA’s findings on shoulder range of motion.

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 August 2022 Anna Brinkman lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Home, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 19 July 2022.
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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 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.

FACTUAL BACKGROUND

On 27 May 2022 an amended referral was made by the delegate to the President for an assessment of WPI caused by injury to the cervical spine, right upper extremity and the left upper extremity on 8 August 2017. We assume all parties accepted that the date of injury was in fact a deemed date, as no personal injury occurred on that date.
The appellant was employed as a legal secretary with the respondent when she developed symptoms at both elbows and in her neck which progressively increased. The onset of these symptoms occurred in approximately January 2017 and August 2017 respectively.
Ms Brinkman has had conservative treatment by physical therapy and exercise physiology, including hydrotherapy. She has been assessed by Dr Al-Khawaja and no surgical option has been taken, although she underwent a right C5/6 nerve root sleeve injection which gave her temporary relief.
She had worked as a full time legal secretary from 1988 until she ceased work in August 2017.
The MA assessed 9% WPI being 7% for the cervical spine and 1% in respect of each “elbow”.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant did not seek to be re-examined by a Panel member.

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 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 submitted that the MA had erred by failing to include an assessment for the impairment caused to Ms Brinkman’s shoulders.

The MAC

The MA noted that, relevantly, he was required to assess the right and left upper extremities.[1] He took the following history:
“Ms Brinkman reports a progressive increase in symptoms at both elbows and also of complaints of neck pain during the course of her work in 2017 between approximately January 2017 and August 2017.
She recalls that, in particular, she developed neck pain radiating towards each shoulder, and some referral of pain down the arm and associated global paraesthesia in both hands.
Bilateral elbow pain has also increased in the period leading up to August 2017.”
[1] Appeal papers page 42.
When recording Ms Brinkman’s present symptoms, the MA noted with regard to the shoulders:
“She says that there is pain radiating to the superior aspect of both shoulders. Shoulder elevation is restricted by shoulder pain. These complaints have increased in recent years.”
A thorough examination of both upper extremities included the measurements of the range of active motion of both shoulders by use of a goniometer.
In his summary at [7] of the MAC, the MA said:
“The claimant was asked why her shoulder movement had deteriorated since the examinations of Dr Bodel and Professor Fearnside. She believes that her symptoms have increased in severity. She also limits shoulder motion to avoid aggravation of her neck complaint. There has been no imaging of the shoulders. No work-related diagnosis is set out in the medical documents or is evident at this assessment.”
The MA expanded on his approach to the shoulder complaints when considering, at [10c], the opinions of other medical opinions. He said:
“I have considered impairment for restricted motion of the shoulders as proposed by Dr Bodel. However, I do not find that the range of motion demonstrated by Ms Brinkman is consistent with previous reports. Further, there is no evidence in the attached documents to support a diagnosis of local injury to the right or left shoulder. I am satisfied that Ms Brinkman likely restricts motion to prevent aggravation of neck pain.”
The MA noted that when she was seen by Professor Fearnside for the insurer in June 2020,
Ms Brinkman had “near” normal motion at the right shoulder, and “only modest restriction of motion of the left shoulder”. The MA said:
“Therefore, I find that the subsequent deterioration in range of motion does not arise from any specific injury arising from the workplace activities but rather the subsequent development of shoulder stiffness due to constitutional and degenerative change since she has left work.”
The MA then explained that the “marked restriction” he found of active range of motion of both shoulders was “…not consistent with a permanent restriction arising from a cervical spine injury”. He observed that there was “no record on the medical file of direct injury to the shoulders”. He concluded:
“Due to the inconsistencies found between the current findings and those previously documented, I could not assess impairment of the shoulders due to restriction motion [sic]secondary to her neck complaint and I do not find that a deterioration of shoulder motion, five years after leaving work would be considered to be causally related to the subject workplace activities.”
In completing the formal Table 2 Certificate, the MA referred to the terms of the referral as applying to the cervical spine, the right “elbow” and the left “elbow”.

SUBMISSIONS

The appellant

Ms Brinkman stated before the matter was referred to the MA there was a “live dispute” as to whether the shoulders should also be assessed as part of the task of the MA.
We were referred to communications between the appellant and the Commission. The respondent contended in correspondence dated 19 May 2022 that the referral should be restricted to the elbows, as it was accepted that Ms Brinkman suffered from bilateral epicondylitis. Ms Brinkman challenged that interpretation of the dispute, and claimed (at [10] of her submissions):
“In email correspondence…. It was ultimately accepted that the referral should include an assessment of any impairment of the appellant’s shoulders.”
A copy of the email chain was lodged.
We were referred to various references by the MA to symptoms involving the shoulders and his reasons for not assessing them. The appellant also noted that the MA had recorded the range of motion he measured in the shoulders.
The appellant submitted that incorrect criteria had been applied in the MA’s decision.
It was clear, it was argued, from the correspondence that the parties agreed that the appellant’s shoulders should be assessed and although the MA acknowledged that the Guides provided for the methodology for such assessment in Chapter 2.14 of the Guides, the MA had failed to apply it, and therefore applied incorrect criteria.
The appellant submitted that had the correct methodology been used, a finding of 5% WPI for the right upper extremity and 4% WPI for the left upper extremity would have been attained.
Ms Brinkman submitted that, even applying Professor Fearnside’s measurements, it would have entitled her a further 8% WPI applicable to the assessment regarding the shoulders (2% right upper extremity and 6% left upper extremity).
Ms Brinkman also submitted that the MA had made a demonstrable error because his determination that the shoulder restrictions were due to constitutional and degenerative change amounted to no more than speculation in the light of the evidence that was before him, to which we were referred.
Ms Brinkman summarised it thus:
“•      Paragraphs 19, 26, 32 and 37 in the Appellant’s statement dated 6 May 2020- ARD pages 12-16;
·        Paragraph 14 in the Appellant’s statement dated 21 April 2022- ARD page 21;
·        In the psychologist’s notes at page 87 (entry for 27 April 2021) of the ARD;
·        In the GP notes there are complaints at pages 227-229 of the ARD covering the period of June 2018 to January 2019;
·        Finally there is the Dr Frith notes where there is a specific complaint about the shoulder in the form at page 271, dated 24 July 2018.”
The MA had accordingly not explained why he ascribed the shoulder restrictions to constitutional and degenerative change, and this constituted a demonstrable error in the light of the evidence referred to, as we understood the submission. The evidence established a clear causal connection to the onset of the subject injury.
We were referred to Secretary, NSW Department of Education v Johnson[2]. The evidence established that the subject injury was a material factor in the subsequent symptomatology regarded by the MA, it was submitted. There was a continuity of symptoms demonstrated in the evidence, it was argued.
[2] [2019] NSWCA 321 at [53]-[54].
Accordingly the appellant sought that the MAC be revoked and that if the shoulder restrictions had been properly assessed there would have been a WPI of more than 10%.

The respondent

The respondent conceded that the referral to the MA was not restricted to an assessment of the appellant’s elbows, but was in regard to the upper extremities. However, it stated that the dispute was “framed by” both the report of Dr Bodel dated 20 July 2021, and the denial in the respondent’s dispute notice that any degree of WPI had been occasioned “as a result of injury”.
The respondent stated that it was on the basis of these issues that the worker was referred for medical assessment. The task for the MA was said to be:
“… (a) identify whether there was any impairment in respect of the shoulders and then (b) to determine whether that impairment resulted from the injury on 8 August 2017 (deemed).”
The respondent then referred to that part of the evidence that it said demonstrated there had been no injury to the shoulders. It referred to the references by the appellant to evidence which supported her claim of injury to the shoulders, and relied on the findings of the MA to reject that claim. In short, it sought to put forward arguments as to why there had been no injury sustained to the shoulders. It is not necessary to recite the evidence, as we will explain shortly.
We were referred to Vitaz v Westform NSW Pty Ltd[3] and the well-known dicta that reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error.
[3] [2011] NSWCA 254.

DISCUSSION

We note with some interest the respondent’s submission that the referral was on the basis of a dispute between Dr Bodel’s assessment and the s 78 notice which denied any degree of WPI as a result of injury.
In the first place, the s 78 notice admitted liability for “injury to the cervical spine, bilateral elbows and a primary psychological injury on 20 September 2018”.[4] However, it denied liability for the claim regarding the shoulders on advice from its medico-legal expert,
[4] Appeal papers page 94.
Dr Raymond Wallace, orthopaedic surgeon. He opined that there was no impairment caused by the “physical injuries”. Curiously, rather than deny liability on that basis, the insurer chose to assert that the 10% threshold had not been satisfied.
Dr Wallace’s report was dated 27 January 2022.[5] He recorded Ms Brinkman’s complaints of;
“……intermittent aching pain at the C5, C6 and C7 spinous processes radiating to the superior border of the trapezius muscles bilaterally and the lateral aspects of her shoulders bilaterally as well as the lateral aspects of her arms to the level of the elbows bilaterally. She describes the pain as an intermittent ache which is not present on a daily basis.”
[5] Appeal papers page 456.
On examination Dr Wallace reported:
“Examination of her bilateral shoulders showed a poor effort on range of movement testing. She has an active range of movement at her bilateral shoulders of flexion 100°, extension 20°, abduction 80°, adduction 0°, external rotation 80° and internal rotation 60°. There are no tender areas. Her biceps tendons are intact. She made no effort on strength testing.”
Dr Wallace advised;
“Ms Brinkman’s current symptoms are due to age-related degenerative cervical spondylosis with irritative bilateral C6 radiculopathies causing bilateral shoulder girdle pain.
The nature and conditions of her employment as an Executive Assistant is not a substantial contributing factor to her current cervical spinal condition.”
Thus, whilst it was not inaccurate to state that the 10% threshold had not been satisfied, there was an element of sophistry, with respect, in describing it thus. The real issue was that Dr Wallace did not find that any of Ms Brinkman’s injuries had been caused by her employment. Further, he found that such involvement of the shoulders as there was, had been caused by age-related degenerative spondylosis with irritative bilateral C6 radiculopathies.
The submission by the respondent that the dispute was also framed by Dr Bodel’s opinion, when seen in that light, reveals the true nature of the dispute. However, the more relevant advice from Dr Bodel’s opinion of 20 July 2021[6] was as to the causation of the injuries to the shoulders, which also displayed a restricted range of motion on examination (albeit that the range of motion was assessed at a Telehealth assessment). He diagnosed rotator cuff pathology in both shoulders, which had been caused by the nature and conditions of work, particularly an increase in workload from 2010.[7]
[6] Appeal papers page 100.
[7] Appeal papers page 107.
Thus we reject the respondent’s carefully constructed submission that the dispute concerned the degree of WPI. It clearly was whether injury had been suffered to the appellant’s shoulders.
Further, the respondent’s submission that the task of the MA was firstly to identify whether there was any impairment in the shoulders was unremarkable in itself, but the second task it identified we have difficulty in accepting, with respect. It is never the task of an MA to determine the cause of an injury that has been referred to him. That is exclusively within the jurisdiction of the Commission.
Following the handing down of the Court of Appeal’s judgement in Bindah v
Carter Holt Harvey Woodproducts Australia Pty Ltd[8] DP Roche clarified the jurisdictional dichotomy between the tasks of Medical Assessors and the Commission in a decision which was approved when it was appealed to the Court of Appeal in Jaffarie v Quality Castings Pty Ltd[9], per White JA, McFarlan and White JJA agreeing. At [80], His Honour said, relevantly:
“….Deputy President Roche in his judgment of 9 December 2014 (Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79) analysed in detail the reasons of this Court in Bindah and concluded as follows:
‘[249] Notwithstanding the different approach by Emmett JA and Meagher JA, it is my view that the following principles apply to proceedings in the Commission:

[8] [2014] NSWCA 264.
[9] [2018] NSWCA 88.
….(b) it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act and whether there are any disentitling provisions, such that compensation is not payable for that injury (Bindah at [111] and s 105 of the 1998 Act)….’]”
Accordingly, the MA erred in considering the question of causation, and the respondent’s submissions seeking to support his reasoning must be rejected. It is now settled that, except in particular circumstances (which are relevant in this case) an MA is bound by the terms of the referral.[10]
[10] Skates v Hills Industries Ltd [2021] NSWCA 142 per Basten JA at [35]. Leeming JA at [48], and McCallum JA at [82].
The particular circumstances in the present case, as was also the case in Skates, is that the referral must reflect the agreement of the parties as to the medical dispute sought to be resolved.
The appellant in her submissions referred to correspondence between the parties and the Commission. When the referral was first drafted it was circulated to the parties, as is customary, on 25 May 2022. The referral was proposed to be for an assessment, relevantly, of the “right upper extremity (elbow) and left upper extremity (elbow)”.[11]
[11] Appeal papers page 23.
On the following day the applicant’s solicitors emailed the respondent and the Commission, stating:[12]
“Our lump sum claim based on Dr Bodel’s report includes an assessment of impairment for the shoulders.”
[12] Appeal papers pages 23-24.
The respondent’s solicitors emailed back on the same day the following:[13]
“….There is no clear explanation of Dr Bodel’s assessments but the Respondent accepts that they must include the shoulders and withdraws its objection. The Referral can be in respect of the Upper Limbs.”
[13] Appeal papers page 23.

The referral was accordingly made in the terms we have recounted above at [6] hereof. We would observe in passing that it is preferable when the anatomical description is in general terms, such as the upper extremity or lower extremity, that the particular area of the body be specifically identified. Had the referral included in parenthesis the elbows and the shoulders in the present case, the MA may not have assumed that it was he who was to decide whether an injury to the shoulders had occurred.
It follows that the MA has made a demonstrable error, and the MAC must be revoked.
In considering the terms of the new certificate, we note that active range of motion measurements were taken by Professor Fearnside, Dr Bodel and the MA himself. No challenge has been made to the measurements made by the MA, and we propose to utilise them in calculating the impairment caused to the shoulders. Dr Bodel’s measurements, being done by Telehealth, we do not accept as being sufficiently reliable for this purpose. Professor Fearnside’s examination was conducted on 23 June 2020, which is not a reliable indicator of the present range of motion.
Applying the shoulder measurements by the MA therefore there was:
(a)     lack of flexion and abduction of the right shoulder (Table 16-40 p 476 & 16-43 p477 AMA5) - 110° & 90° = 9% upper extremity impairment (UEI);
(b)     lack of flexion and abduction of the left shoulder (Table 16-40 p 476 &16-43 p477 AMA5) - 140° & 120° = 6% UEI;
(c)     combine 2% UEI for each elbow for the unchallenged finding as to epicondylitis (Chapter 2.18 of the Guides – not Chapter 2.14 as erroneously stated in the MA’s Table 2 Certificate[14]) = 9% + 2% UEI for the right upper extremity, and 6% + 2% UEI for the left upper extremity;
(d)     using the conversion chart at Table 16-3 of AMA5 p 439, the right UEI of 11% converts to 7%WPI, and the left UEI of 8% to 5%WPI, and
(e)     the combined value (at p 604 of AMA5) of the WPI assessments for the cervical spine and upper extremities is accordingly 18%.
[14] Appeal papers p 51.
For these reasons, the Appeal Panel has determined that the MAC issued on19 July 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W2639/22
Applicant:	Anna Brinkman
Respondent:	Exchange House Services Australia Pty Ltd (Herbert Smith Freehills)

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 Dr Alan Home 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	8 August 2017	Chapter 4.33-4.35	Table 15-5 p 392	7%	nil	7%
Right upper extremity	8 August 2017	Chapter 2.18	Chapter 16 Figures 16-40, 43 & 46 Table 16-3	7%	nil	7%
Left upper extremity	8 August 2017	Chapter 2.18	Chapter 16 Figures 16-40, 43 & 46 Table 16-3	5%	nil	5%
Total % WPI (the Combined Table values of all sub-totals)					18%

[2022] NSWPICMP 503

6 December 2022