British American Tobacco Australia Pty Limited v Mikhail
[2021] NSWPICMP 80
•1 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | British American Tobacco Australia Pty Limited v Mikhail [2021] NSWPICMP 80 |
| APPELLANT: | British American Tobacco Australia Pty Limited |
| RESPONDENT: | Laila Mikhail |
| APPEAL PANEL: | Member Brett Batchelor Dr Drew Dixon Dr Richard Crane |
| DATE OF DECISION: | 1 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant employer submitted that the AMS assessed the respondent worker on the basis of incorrect criteria, and that the MAC contains a demonstrable error; five grounds of appeal were advanced by the appellant employer, two of which were put in issue by the respondent; these were the manner in which the AMS assessed the respondent’s range of motion of her right wrist and thumb, and the fact that the AMS made no deduction for pre-existing impairment pursuant to section 323 of the 1998 Act; the respondent nevertheless conceded that there were issues with the MAC and that the appeal should be allowed; she submitted that she should be re-assessed by a member of the Appeal Panel and a further MAC issued in accordance with the findings of that assessor; Held- the respondent was re-assessed by a member of the Appeal Panel, and a further MAC issued in accordance with the findings of that assessor. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 October 2020 British American Tobacco Pty Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greggory Burrow, an Approved Medical Specialist now referred to as a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 September 2020.
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).
RELEVANT FACTUAL BACKGROUND
Laila Mikhail (Ms Mikhail/the respondent) sustained injury to her right upper extremity (thumb, wrist, shoulder) and left upper extremity (thumb, wrist) deemed to have occurred on 5 July 2011 arising out of or in the course of her employment by the appellant as a process worker over the period of that employment from 1977 onwards.
The respondent was assessed by Medical Assessor Dr Greggory Burrow (at that time known as an Approved Medical Specialist) on 19 August 2020. Dr Burrow’s MAC was issued on 4 September 2020.
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 the worker should undergo a further medical examination because both the appellant and the respondent requested re-examination by a Medical Assessor who is a member of the Appeal Panel. Having regard to this, and the issues raised by the appellant, three of which were not put in issue by the respondent, the Panel was of the view that there was error in the MAC and that Ms Mikhail should undergo a further medical examination.
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.
Further medical examination
Dr Drew Dixon of the Appeal Panel conducted an examination of the worker on 3 May 2021 and reported to the Appeal Panel.
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. They are not repeated in full, but have been considered by the Appeal Panel.
Appellant
In summary, the appellant submits that the Medical Assessor has erred in the way in which he has calculated impairment of the upper extremities, specifically by failing to correctly apply both Chapter 16 and the Combined Tables [sic, Combined Values Chart] of AMA 5, as well as [1.36] of the Guidelines. The appellant further submits that the Medical Assessor has erred in his failure to apply a deduction in accordance with s 323 of the 1998 Act.
The appellant details the way in which the Medical Assessor assessed the right upper extremity (shoulder, wrist and hand) and left upper extremity (wrist and hand) to arrive at 21% whole person impairment (WPI) for the right upper extremity and 18% WPI for the left upper extremity.
The appellant submits that, for the right upper extremity, as set out on p 435 of Chapter 16 of AMA 5, the three individual levels of upper extremity impairment (UEI) must first be simply added together to result in the total UEI for the right side, which would on the Medical Assessor’s figures, equate to a total of 23% UEI rather than the 21% WPI (emphasis added) stated by the Medical Assessor in the MAC. That figure was obtained by using the Combined Values Chart for the three individual levels of UEI which is incorrect.
Table 16-3 on p 439 of AMA 5 is then used to convert UEI to WPI, which for 23% UEI would equate to 14% WPI as opposed to the 21% WPI assessed by the Medical Assessor. The appellant notes that there is no reference to Table 16-3 anywhere in the MAC, or explanation as to how the figure of 21% was arrived at.
The appellant submits that the Medical Assessor has made the same mistake in assessing the left upper extremity, by using the Combined Values Chart for the 8% UEI in respect of the left wrist and 11% UEI for the left hand to arrive at 18% WPI for the left upper extremity. The appellant submits that by adding the two levels of UEI for the left upper extremity results in 19% UEI and using Table 16-3 to convert that to WPI, a figure of 11% WPI for the left upper extremity. Again there is no reference to Table 16-3 in respect of the calculation of WPI for the left upper extremity or explanation as to how the Medical Assessor arrived at his figure.
Using the Combined Values Chart for 14% WPI for the right upper extremity and 11% for the left upper extremity, 23% WPI is the total for both upper extremities as opposed to the figure of 35% given by the Medical Assessor.
The appellant submits that the assessment of the Medical Assessor in the MAC is therefore clearly based on incorrect criteria in accordance with s 327(c) of the Workers Compensation Act 1987 (the 1987 Act).
The second error alleged by the appellant is in respect of the way in which the Medical Assessor assessed permanent impairment generally, but particularly in relation to the right shoulder.
The appellant notes that the Medical Assessor found a significant difference in the range of motion of the respondent’s range of motion in the right shoulder on formal examination to that observed by him across both shoulders when she was dressing and undressing. The Medial Assessor considered there to be sub maximal effort shown by the respondent in all aspects of range of motion of the right rotator cuff. Nevertheless, he found that the respondent worker presented as a credible witness, despite the inconsistencies flagged during his examination. Further details of the inconsistencies observed by the Medical Assessor in his examination are given in the MAC, including when he noted attempted passive examination to assess arthritis or frozen shoulder was resisted by the respondent voluntarily.
The Medical Assessor considered that the respondent exhibited a degree of abnormal illness behaviour, concluding that the results of physical examination in terms of the right shoulder could not be used to evaluate WPI. The appellant then questions as to why the Medical Assessor then went on to use the observed range of motion in the left shoulder to assess the right shoulder, having regard to the inconsistency of the respondent’s presentation and what is stated in [1.36] of the Guidelines in respect of inconsistent presentation.
The appellant notes that the Medical Assessor considered that the respondent suffered from ‘AC joint arthritis’ in the left shoulder, and questions how this diagnosis could have been arrived at on the basis of the only scan of that shoulder in evidence, an ultrasound dated 2 July 2015. The appellant submits that the Medical Assessor has not explained why he reached the conclusion that the left shoulder symptoms and pathology are similar to the right shoulder.
The appellant submits that the Medical Assessor’s assessment of the respondent’s right shoulder raises the question as to whether the MAC contains another demonstrable error.
The third issue raised by the appellant was the manner in which the Medical Assessor assessed the respondent’s range of motion of her right wrist and right thumb. The appellant notes the reference by the Medical Assessor to the examination of the respondent by the treating surgeon, Dr Nabarro, recorded in his report dated 23 June 2020, two months before the examination by the Medical Assessor. Dr Nabarro recorded that the respondent exhibited full range of motion of her right wrist and right thumb. That finding was vastly different to what the respondent exhibited to the Medical Assessor, sufficient for him to assess 4% UEI of the wrist and 5% UEI of the hand. The appellant notes that the Medical Assessor was not able to explain the difference apart from saying that he thought that there was a degree of inconsistency as regards the shoulder but found no evidence of inconsistency with regard to the wrist and thumb movements.
The appellant submits that the report of Dr Nabarro of 23 June 2020 is, in itself, evidence of inconsistency which should have been taken into account having regard to [1.36] of the Guidelines when formulating his assessment. This is especially so, according to the appellant, when the respondent had demonstrated inconsistency in her presentation in relation to the range of motion in the right shoulder.
In short, the appellant submits that the Medical Assessor should have had regard to [1.36] of the Guidelines not only in respect of the assessment of the right shoulder, but also in respect of both upper extremities generally and the respondent’s level of WPI as a whole.
In respect of the fourth issue raised by the appellant it submits that the Medical Assessor’s findings in respect of the upper extremity impairment of the right shoulder are incorrect. The appellant examines the findings of the Medical Assessor in respect of the left shoulder, and thereafter notes the Medical Assessor’s assessment of 9% WPI for range of motion of the shoulder. The appellant submits that the Medical Assessor has provided no specific reasoning, except for referring to Figures 16-49 [sic, 16-40], and 16-46 “(but not 16-43)”[1], and that the appellant cannot therefore ascertain how the Medical Assessor reached the assessment of 9% UEI rather than 8% UEI. The appellant submits that this constitutes another error in the MAC.
[1] See [50], Appeal Papers p 14.
The Appeal Panel does note however that the Medical Assessor did in fact refer to Figure 16-43 at the top of p 7 of the MAC.[2]
[2] Appeal Papers p 27.
The final issue raised by the appellant is the failure of the Medical Assessor to make a deduction for pre-existing impairment pursuant to s 323 of the 1998 Act. The appellant notes the explanation of the Medical Assessor when he indicated that there was no medical evidence before him to show quantifiable pre-existing impairment of the wrists, shoulders or thumbs “despite there being a constitutional element to the bilateral thumb arthritis”[3]. The Medical Assessor also stated on the previous page of the MAC that “there may be an element of constitutional and background disease” but considered that estimating it even at the normal one tenth level would be “contrary to the available medical evidence.”[4]
[3] Appeal Papers p 28.
[4] Appeal Papers p 27.
The appellant noted that the view of the Medical Assessor on this issue is at odds with the independent medical examiners retained by both parties who did make a s 323 deduction to account for pre-existing degenerative pathology.
The appellant submits that in circumstances where both experts agree that there ought to be some deduction to account for pre-existing constitutional changes as is permitted under s 323, the query is raised whether it was correct for the Medical Assessor to make no deduction, particularly as he has provided no details as to the “medical evidence” upon which he relies to form the view that no deduction ought to be made.
The appellant submits that this failure to apply a s 323 deduction in the circumstances is an error.
The appellant seeks an order that the MAC dated 4 September 2020 be revoked and a new MAC should be issued by a different Medical Assessor.
Respondent
In reply, the respondent concedes that there is demonstrable error an/or incorrect criteria contained in the MAC of the Medical Assessor. It makes submissions in response to the third and fifth appeal issues of the appellant.
The respondent takes issue with the third appeal issue, in respect of the assessment of the range of motion in the right wrist and right thumb by the Medical Assessor. The respondent concedes that whilst it is clear that there were some inconsistencies, the Assessor noted those inconsistencies and then proceeded to use his best judgement in accordance with the Guidelines to formulate his own view, a view confirmed after using his clinical judgement.
While the Medical Assessor noted the inconsistencies with the range of motion of the shoulder, the respondent noted that he found no such inconsistencies in relation to the (right) wrist and thumb, and the Medical Assessor clearly put his mind to those issues. The respondent therefore submits that the appellant’s submission in respect of the assessment of the right wrist and thumb should be rejected.
In respect of the fifth issue raised by the appellant, the respondent submits that the Medical Assessor does provide reasoning in relation to the deduction for pre-existing impairment. He gave considerable thought as to why his view differed from those of Dr Patrick and Dr Powell, citing the reason of the Medical Assessor referred to in [31] above in respect of the deduction made by Dr Patrick.
In respect of the deduction assessed by Dr Powell, the respondent noted that the Medical Assessor said that he had some agreement with Dr Powell that there is a significant constitutional component. He went on to say that substantially it is not quantifiable, or accurately assessable in terms of pre-existing impairment, as required by AMS 5 and the Guidelines. The respondent submits that the Medical Assessor said that while there may well have been underlying pathology, there was no evidence in the proceedings of impairment (presumably from that pathology).
The respondent submits that it is of no relevance that other experts have made a s 323 deduction, and that the Medical Assessor has not fallen into error in making no deduction for a pre-existing pursuant to s 323 of the 1998 Act.
In conclusion the respondent submits that it is clear that there are issues with the MAC and that the appeal should be allowed. She submits that she should be re-assessed by a member of the Appeal Panel and a further MAC issued in accordance with the findings of that Assessor.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC (see Siddik v Workcover Authority of NSW[5] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[6]).
[5] [2008] NSWCA 116.
[6] [2013] NSWCA 1792.
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 does not take issue with the first, second and fourth issues raise by the appellant. In the first issue the appellant alleges that the calculation of WPI by the Medical Assessor is incorrect. However the Panel does not agree that the method of calculation asserted by the appellant in the table at the top of p 2 of the appellant’s submissions and at [11]-[19][7] thereof is correct. In respect of the right upper extremity, the appellant says that as set out on p 435 of Chapter 16 of AMA 5, the three levels of UEI for this extremity must be simply added together to result in the total UEI for the right side, to give a total UEI, on the individual assessments of the Medical Assessor (for shoulder, wrist and thumb), of 23%. On these individual assessments the Medical Assessor obtains a figure of 21%. He has done this by using the Combined Values Chart instead of adding the three individual assessments together.
[7] Appeal Papers pp 10-11.
In accordance with “16.1b Impairment Evaluation: Documentation and Recording” on pp 434-435 of AMA 5, it is clear that:
“Regional impairments resulting from the hand, wrist, elbow and shoulder region are combined to provide the upper extremity impairment (see Section 1.4, Philosophy and Use of Combined Values Chart, and the Combined Values Chart p. 604). The upper extremity impairment is then converted to a whole person impairment by means of Table 16-3. When to add as opposed to combine impairments is discussed in Sections 16.1c and 16.1d and noted in Figure 16-1.”
This is the method of calculation used by the Medical Assessor which is correct. He used the same method in his calculation of the UEI and WPI for the left upper extremity The Member of the Panel, Dr Dixon, who examined the respondent on 3 May 2021 has used this method of calculation as reflected in his assessments referred to hereunder.
The second issue relied upon by the appellant is the way in which the Medical Assessor assessed permanent impairment generally, but particularly in relation to the right shoulder. This is based on the significant difference in the range of motion of the respondent’s range of motion in the right shoulder on formal examination to that observed by him across both shoulders when she was dressing and undressing, and the Medical Assessor’s consideration that there had been sub-maximal effort by the respondent in all aspects of range of motion of the right rotator cuff. Notwithstanding this, Dr Burrow states on p 5 of the MAC[8] that the worker presented as a credible witness despite the inconsistencies flagged during his examination. Further details of the inconsistencies found by Dr Burrow are summarised at [21]-[25] above.
[8] Appeal Papers p 25.
The respondent does not take issue with this second issue. Dr Dixon in his examination found that Ms Mikhail showed no inconsistency on his examination of her on 3 May 2021 and made maximum effort with active joint effort motion of both shoulders, wrists and thumbs. Details of his assessment of the respondent and findings are set out hereunder.
The respondent does take issue with the third appeal issue which relates to the way in which the Medical Assessor assessed the range of motion in the right wrist and right thumb. This issue again is in respect of the respondent’s presentation to him. The appellant notes that the treating surgeon, Dr Nabarro, in a recent report dated 23 June 2020 recorded a full range of motion of the right wrist and thumb, vastly different from that found by Dr Burrows.
The respondent submits that there was no error in the Medical Assessor’s assessment of the right wrist and thumb, notwithstanding the inconsistencies demonstrated on assessment of the right shoulder. The respondent submits that Dr Burrow made no finding of inconsistency in the respondent’s presentation in his assessment of the right wrist and thumb, and that when making those assessments, he was aware of the right shoulder inconsistencies.
Again, Dr Dixon on examination found no inconsistency on the respondent’s presentation with active range of motion od the right wrist and thumb as noted in his assessment hereunder.
The respondent does not take issue with the fourth appeal issue of the appellant. This is in respect of the findings in respect of the upper extremity impairment of the right shoulder which it asserts are incorrect. These alleged errors are set out in the appellant’s submissions. In view of the fact that the respondent does not take issue with this issue and that Dr Dixon’s assessment of the right upper extremity is set out in detail in his report hereunder, it is not necessary for the Appeal Panel to refer to this issue any further.
The fifth appeal issue relates to the deduction for pre-existing impairment pursuant to s 323 of the 1998 Act. She asserts that the Medical Assessor did address in his Reasons for Assessment in the MAC why he did not make a deduction, noting that he gave considerable thought to the matter and why his views differed from those of both Dr Patrick and Dr Powell.
The appellant notes that Dr Patrick, qualified by the respondent, deducted the usual one tenth from his assessment of the thumbs, whereas the Appeal Panel notes that it was in fact one fifth. The appellant notes Dr Powell’s deduction of one fifteenth from all areas based on pre-existing degeneration. It appears that the deduction of Dr Powell was one half. The Medical Assessor does discuss the deductions made by both Dr Patrick and Dr Powell and gives reasons why he differs from their assessments of the s 323 deduction.
The respondent submits that the failure of the Medical Assessor to apply a deduction pursuant to s 323 of the 1998 Act is not an error.
Dr Dixon considers that there should be no deduction from the assessment of UEI of the right shoulder for the reason set out in his report, or for the CMC osteoarthritis which was asymptomatic and deemed to be due to the nature and conditions of the respondent’s employ.
Notwithstanding the two matters in the appellant’s submissions with which the respondent takes issue, she concedes that it is clear that there are issues with the MAC and that the appeal should be allowed. She submits that she should be re-assessed by a member of the Appeal Panel and a further MAC issued in accordance with the findings of that Assessor.
The report of the member of the Appeal Panel, Dr Dixon, dated 6 May 2021 following his examination of the respondent on 3 May 2021 is as follows:
“APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-5243/18 |
| Appellant: | British American Tobacco Australia Pty Ltd |
| Respondent: | Laila Mikhail |
| Date of Determination: | May 6, 2021 |
| Examination Conducted By: | DREW DIXON |
| Date of Examination: | MAY 3 2021 |
1.The workers medical history, where it differs from previous records
There were no changes to the workers medical history.
2.Additional history since the original Medical Assessment Certificate was performed
There was no additional history provided by the claimant
3.Findings on clinical examination
On examination on May 3, 2021 the claimant was 155cm tall and weighed 60kg.
There was stiffness on elevation of her right shoulder with active abduction 120 degrees, forward flexion 140 degrees, extension 40 degrees, adduction 20 degrees, associated with pain and external rotation 0 degrees and internal rotation 50 degrees. She had tenderness of the trapezius muscle and of the postero-lateral deltoid muscle and at the AC joint. Her arthroscopic portals had healed well. Shoulder girdle power on the right was grade four out of five.
There was a full range of motion of her cervical spine. There was no gross neurological deficit of either upper limb. There was no wasting of her right arm or forearm.
Her grip strength in both hands was grade four out of five, thenar power grade four out of five and intrinsic power, grade four plus out of five. There was no neurovascular deficit in either hand.
There was stiffness of her right wrist with dorsi-flexion 60 degrees, palmar flexion 50 degrees, radial deviation 15 degrees, ulnar deviation 30 degrees.
There was a well healed 4cm scar at the base of her right thumb which was non tender.
Range of motion of the left wrist was dorsi-flexion 60 degrees, palmar flexion 50 degrees, radial deviation 15 degrees and ulnar deviation 30 degrees.
There was well healed 6cm curvilinear scar at the base of her left thumb.
There was stiffness of her left thumb with IP flexion 50 degrees, MCP joint flexion 60 degrees, and stiffness of her carpo-metacarpal joint with abduction at 40 degrees, opposition and adduction 1cm from the palm. There was some tenderness at the base of her thumb where she had had the CMC arthroplasty.
The right thumb showed IP flexion of 50 degrees, MCP joint flexion 50 degrees. There was no tenderness at the base of the thumb, where she had had the CMC arthroplasty.
Pinch strength and key pinch was grade four out of five for both thumbs.
Results of any additional investigations since the original Medical Assessment There were no additional investigations since the Medical Assessment Certificate dated September 4, 2020.
The findings today, indicated that for stiffness of the right shoulder from Pie Charts 16-40, 16-43 and 16-46 there was a 10% upper extremity impairment and that for the resection arthroplasty of the distal right clavicle is from Table 16-27, Modified by Para 2.14 Page 12 of the WorkCover Guides, an additional 5% upper extremity impairment, giving a total of 15% upper extremity impairment for the right shoulder. There is no deduction for pre-existing condition in the right shoulder.
That for the stiffness of the right wrist is from Table 16-28, and 16-31, 3% upper extremity impairment.
That for the CMC arthroplasty of the right thumb is from Table 16-27, is 11% upper extremity impairment.
That for the stiffness of the IP joint and MCP joint of the right thumb is from Pie Charts 16-12 and 16-15, 2% and 1% thumb impairment which gives 3% thumb impairment which equates to 1% hand impairment, which equates to 1% upper extremity impairment.
This gives a total from the Combined Values Chart of 27% right upper extremity impairment which equates to 16% whole person impairment.
That for the CMC arthroplasty of the left thumb is from Table 16-27, 11% upper extremity impairment and that for the stiffness of the IP joint and MCP joint of the left thumb is from Pie Charts 16-12, and 16-15 respectively is 1% and 1% thumb impairment which gives 2% thumb impairment which equates to 1% hand impairment which equates to 1% upper extremity impairment.
That for the stiffness of the left wrist is from Pie Charts 16-12 and 16-16, 3% upper extremity impairment.
This gives a total for the left upper extremity of 15% upper extremity impairment which equates to 9% whole person impairment.
There has been a recalculation of WPI compared with the MAC of September 4, 2020 and the second issue is using the other shoulder to assess the right shoulder and on re-examination today, most of the restriction is on the right shoulder with minor restriction of the left shoulder, also raised by the Appellant was the range of motion of the right wrist and thumb.
The impairment for carpo-metacarpal resection arthroplasty is fixed by the table, giving an 11% upper extremity impairment and to that has been added the stiffness of the MCP and IP joints of both thumbs.
The AMS has not allowed for the resection arthroplasty at the CMC joint of each thumb, but has based the assessment on range of motion, but he has allowed for the resection of the distal clavicle resection arthroplasty of the right shoulder.
No deduction was made from the right shoulder for any symptomatic pre-existing condition. No deduction is made for CMC OA as this was asymptomatic and was deemed due to the nature and conditions of her employ.
The claimant showed no inconsistency today and made maximum effort with active joint motion of both shoulders, wrists and thumbs.
In summary, for the right upper extremity there was a 27% upper extremity impairment which equates to 16% whole person impairment.
That for the left upper extremity is 15% upper extremity impairment which equates to 9% whole person impairment.
This gives a total from the Combined Values Chart of 24% whole person impairment.
Signed: DREW DIXON
Date: May 6, 2021”
The Appeal Panel accepts the findings and assessments of Dr Dixon.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 September 2020 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
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Gregg Burrow 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 WorkCover Guides | 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) |
| 1.Right Upper Extremity | 5/7/11 | Para 2.5 Page 10 Para 2.14 Page 12 | Pie Charts 16-40, 16-43, 16-46, 16-28, 16-31, 16-12, 16-15 | 16% | 0 | 16% |
| 2.Left upper Extremity | 5/7/11 | Para 2.5 Page 10 Para 2.14 Page 12 | Pie Charts 16-28, 16-31, 16-12, 16-15, Pages 457-467, Table 16-27 Page 506 | 9% | 0 | 9% |
| Total % WPI (the Combined Table values of all sub-totals) | 24% | |||||
Brett Batchelor
Member
Dr Drew Dixon
Medical Assessor
Dr Richard Crane
Medical Assessor
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