Bupa Care Services Pty Ltd v O'Keefe
[2022] NSWPICMP 249
•9 June 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bupa Care Services Pty Ltd v O'Keefe [2022] NSWPICMP 249 |
| APPELLANT: | Bupa Care Services Pty Ltd |
| RESPONDENT: | Amy Jean O’Keefe |
| Appeal Panel: | Member Catherine McDonald |
| Dr David Crocker | |
| Dr Michael Davies | |
| DATE OF DECISION: | 9 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of upper extremity impairment; referral by consent without findings as to injury, findings on causation required; Bindah v Carter Holt Harvey Woodproducts; interaction between American Medical Association AMA 5 and Guidelines; assessment of brachial plexus lesion and ulnar nerve lesion should not also include range of motion assessments; reassessment; Held- MAP revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
1. On 15 December 2021, Bupa Care Services Pty Ltd (Bupa) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr T Michael Long, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 November 2021.
2. Bupa 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.
3. The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
4. The WorkCover Medical Assessment Guidelines 2018 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 2018.
5. 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
6. Ms O’Keefe was employed by Bupa as an assistant in nursing in an aged care facility in Tamworth. On 20 January 2017 she suffered an injury to her neck and right arm when a lifting device collapsed when she and another nurse were moving a heavy patient. She suffered a second wrenching injury to her right arm when helping a patient out of bed using a “Johnny belt”.
7. After nerve conduction studies were undertaken, Ms O’Keefe was referred to Dr Lawson who undertook an ulnar nerve transposition in May 2018 and repeated that surgery in May 2019.
8. Ms O’Keefe returned to work on selected administration duties until her employment was terminated in about March 2020.
9. The Medical Assessor assessed 23% whole person impairment (WPI) in respect of her right shoulder, right little finger, brachial plexus and scarring.
PRELIMINARY REVIEW
10. 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 2018.
11. As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the MAC contained errors which it was not possible to resolve on the papers.
EVIDENCE
12. 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.
13. Dr Michael Davies conducted an examination of the worker on 25 May 2022 and reported to us. His report is attached to this certificate and we adopt his findings.
14. 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
15. Both parties made written submissions. They are not repeated in full, but we have considered them.
16. In summary, Bupa submitted that the Medical Assessor’s assessment was made on the basis of incorrect criteria because he assessed range of motion of Ms O’Keefe’s little finger when her injury resulted solely from a peripheral nerve injury.
17. Bupa also submitted that the Medical Assessor had incorrectly calculated WPI, making errors in the translation of upper extremity impairment to WPI and in combining upper extremity impairments. It submitted that the Medical Assessor provided a range of motion assessment of Ms O’Keefe’s shoulder but did not specify the origin of the impairment. When the only diagnosis was a brachial plexus lesion, Bupa said that that loss was also a result of a peripheral nerve lesion and that the Medical Assessor was required by paragraph 2.9 of the Guidelines to use Tables 16-15, 16-10 and 16-11 of AMA 5.
18. Bupa submitted that the MAC contained a demonstrable error in that the Medical Assessor did not correctly apply paragraph 2.10 of the Guidelines and Table 16-10 of AMA 5, missing several steps in the process. Even if the 60% sensory impairment was appropriate under Table 16-10, it is 60% upper extremity impairment (UEI) which converts to 36% WPI. It submitted that the Medical Assessor also did not correctly combine the upper extremity impairments of the brachial plexus impairment in that he added them rather than using the combined values table.
19. Mr Beran of counsel prepared submissions in reply for Ms O’Keefe. He submitted that Bupa’s submissions were based on a false premise because a brachial plexus injury was not the same as a peripheral nerve injury, noting that paragraph 16.5 of AMA 5 differentiated the brachial plexus from peripheral nerves. On that basis, Mr Beran submitted that paragraphs 2.9 and 2.10 do not apply. If it was accepted that the brachial plexus is not a peripheral nerve, the approach of using Table 16-14 taken by the Medical Assessor and Dr Anderson was correct.
20. With respect to the assessment of 60% sensory impairment, Mr Beran submitted that a proper reading of the MAC showed that the Medical Assessor considered that assessment excessive and that 30% UEI was correct. He said that the Medical Assessor had clearly applied Table 16-10 and that the reference to 16-9 was a typographical error.
FINDINGS AND REASONS
21. 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.
22. 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.
Treatment history
23. The injury was pleaded in the Application to Resolve a Dispute as an injury to her right forequarter. The matter was referred to the Medical Assessor by consent and he was asked to assess Ms O’Keefe’s right upper extremity and scarring. There were no explicit findings about the nature of the injury.
24. In Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd Emmet JA (with whom the other members of the Court of Appeal agreed) accepted that a Medical Assessor or Appeal Panel may need to make findings about causation:
“However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of ‘medical dispute’. Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).” (Emphasis in original)
25. The absence of findings as to the nature of the injury meant that the Medical Assessor was required to make a diagnosis and determine the appropriate method of assessment for the injury, considering the investigations disclosed in the records of treating doctors and his own observations.
26. A review of the medical evidence in the file shows that Ms O’Keefe has been treated for an ulnar nerve injury and a brachial plexus injury.
27. On 31 May 2017, Dr Leibenson noted that his examination was consistent with ulnar nerve sensory neuropraxia and requested nerve conduction studies of the right brachial plexus. On 25 July 2017 Dr Katekar said that the motor and sensory conduction studies were within normal limits. He said:
“Ulnar nerve conduction is not slowed across the right cubital tunnel, but ulnar nerve symptoms are not excluded, and significant local tenderness is noted. The absent right ulnar f wave indicates pathology somewhere along the right ulnar nerve pathways, possibly at plexus level. There is no evidence of motor axonal injury on the EMG study.”
28. Dr Leibenson considered that Ms O’Keefe presented with a mixed picture of brachial plexus traction injury and ulnar nerve neuritis/neuropathy. He recommended physiotherapy.
29. Ms O’Keefe saw Dr Lawson on 5 March 2018. He ordered an ultrasound which he said showed significant signs of ulnar neuropathy with subluxation of the ulnar nerve and neuritis. He recommended that her ulnar nerve be transposed to allow that segment of her injury to settle and the surgery was undertaken on 10 May 2018.
30. A further nerve conduction study on 11 January 2019 found that the only abnormality was an “absent lat antebrach cut SNAP on the right strongly suggestive of an upper brachial plexus lesion”.
31. On 7 February 2019 Dr Lawson explained to Ms O’Keefe that her symptomatology maybe coming from her brachial plexus lesion but noted that she had a Tinel’s sign at the proximal end of the cubital tunnel incision and ordered another ultrasound. Dr Lawson said that showed a band of fascia across the nerve and proposed a submuscular transposition. He undertook a revision of the ulnar nerve transposition on 29 May 2019 but decided that a submuscular transposition was not appropriate.
32. After that surgery, Dr Lawson noted that Ms O’Keefe had more power in her little finger and she was able to adduct it better than she could. She felt that the sensory changes remained the same. On 19 July 2019 Dr Lawson noted that Ms O’Keefe continued to have problems as a result of her brachial plexus injury and recommended that she see a pain specialist.
33. Ms O’Keefe saw Dr Taylor on 28 November 2019 and he too described her injury as a brachial plexus injury and ulnar neuropathy. He recommended stellate ganglion blocks.
34. Ms O’Keefe relied on an impairment assessment by Dr Anderson who assessed 30% UEI in respect of the brachial plexus injury and 16% UEI in respect of the range of movement of the right shoulder which combine to 41% UEI and 25% WPI. He assessed 3% for scarring and total WPI of 27%.
The MAC
35. The Medical Assessor undertook a thorough physical examination and set out his findings. He described the injury as:
“a traction injury to her right arm, resulting in ongoing pain extending from her neck into the right arm and posterior shoulder with sensory changes globally involving the right arm, but particularly on the medial aspect with sensory changes affecting the fingers of the right hand. Apart from these symptoms, she has restriction of movement of her neck, right shoulder and right little finger. The sensory changes result in her sustaining unknown injuries, particularly with sharp objects in the right hand. Because of her ongoing symptoms, she is making little use of her dominant right hand and arm.”
36. He said that the facts on which his assessment was based were:
“The impairment assessment is made on the basis that the claimant sustained a right brachial plexus lesion based on the nature of injury, in particular, sustained during the injury of 12 May 2017. This was a traction injury to the right arm. A right brachial plexus lesion has not been excluded and in part, has been supported by nerve conduction studies. Ms O’Keefe has a further impairment to the right upper extremity related to restricted movement of the right shoulder and right 5th finger.
Significant surgical scarring over the medial right elbow causes her concern and is further significant by its hypersensitivity and tenderness.”
37. The Medical Assessor set out his measurements of the range of motion of Ms O’Keefe’s right shoulder and assessed 4% UEI. He did not set out the range of motion of her left shoulder. He assessed the range of motion at all three joints of her right little finger and assessed 95% finger impairment which equalled 10% hand impairment and 9% UEI.
38. The Medical Assessor said:
“Right brachial plexus injury impairment: Little advice in SIRA Guidelines. Impairment is determined by reference to AMA5, Page 490; Table 16-4. Determined as mainly middle and lower trunk sensory deficiency, determined as 25% of maximum upper extremity impairment. Although there is a motor deficiency, it is reflected mainly in the deformity of the right little finger and this has been assessed separately on the basis of restriction of movement of the right little finger. No other significant motor weakness was identified.
Maximum sensory deficiency based on mainly the lower and middle trunks trunk C 7/8, T1 = 25% right upper extremity impairment (Adding middle trunk and lower trunk sensory deficits, 5% and 20%).
Impairment right upper extremity = combining, 4% (shoulder); 9% (right little finger); 25% (brachial plexus) = 35% right upper extremity impairment. Combination Tables page 604. = 21% Whole Person Impairment. Page 439 Table 16-3.”
39. The Medical Assessor assessed 2% under the Table for the Evaluation of Minor Skin Impairments and no grounds of appeal are relied on with respect to that determination. His total assessment was 23% WPI.
40. The Medical Assessor commented on the other reports in the file. With respect to the report by Dr Anderson, who was qualified for Ms O’Keefe he said:
“Comment: I am in agreement that the claimant is suffering from a brachial plexus lesion and because of the sensory changes 2-point discrimination and light touch, although more dense on the medial aspect of the right arm and hand, also involved all the fingers, to the extent she frequently sustains injuries without her knowledge to the fingers in the right hand. I agree that according to Page 482; Table 16-9, her sensory deficit and pain is classified as Grade 3:
“… distorted superficial tactile sensibility (diminished light touch and 2-point discrimination), with some abnormal sensation or slight pain, that interferes with some activity 26-60% sensory deficit…”
If the higher figure 60% is selected, the claimant’s impairment of the right upper extremity would be 60% Whole Person Impairment. This is considered excessive and therefore, I am in agreement with Dr Anderson’s assessment methodology in determining a lesser value = 30% right upper extremity impairment. My methodology of determining the impairment using solely Table 16-14 page 490 resulting in 25% right upper extremity impairment is considered more appropriate.”
41. As Mr Beran pointed out, the reference to Table16-9 is an error and the Medical Assessor referred to Table 16-10.
42. The Medical Assessor noted that Dr Panjratan did not diagnose a brachial plexus lesion.
Reassessment
43. The Medical Assessor said that the Guidelines provided little guidance about the assessment of the brachial plexus injury. It is important to bear in mind paragraph 1.1 of the Guidelines, which says in part:
“The Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) in most cases. Where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.”
44. While the Guidelines override AMA 5 to the extent of any inconsistency, the method of assessment is that in AMA 5 unless the Guidelines provide otherwise.
45. Chapter 2 of the Guidelines refers an assessor to Chapter 16 of AMA 5. Chapter 2 then summarises the approach to assessment of the upper extremity and hand and highlights some of the issues which arise from addition or combination of impairments and the conversion to WPI. The chapter goes on to set out specific matters of interpretation of AMA 5.
46. The Medical Assessor accepted that Ms O’Keefe has a brachial plexus lesion but also assessed the range of motion of her shoulder and little finger. In doing so, he failed to consider the causation of the losses in those structures.
47. Section 16.5 of AMA 5 is headed Impairment of the Upper Extremities Due to Peripheral Nerve Disorders and reads in part:
“The peripheral nerves constitute an intricate system that carries impulses traveling in both directions between the spinal cord and all the tissues of the body, and through it many important body functions are regulated. …
The spinal nerves consist of 31 pairs of symmetrically arranged nerves, each leaving and entering the spinal cord via two roots: the ventral root carries motor axons originating from the ventral horn of the spinal cord and merges with the dorsal root, which contains dorsal sensory ganglion axons, to form the spinal nerve. As the spinal nerves exit the spinal column through the intervertebral foramina, they immediately divide into two primary rami. The anterior primary rami of the four lower cervical nerves (C 5–8), together with the greater part of the first thoracic nerve (T1) and occasional contributions from the second thoracic nerve (T2) form the brachial plexus. …
This section presents a method of evaluating upper extremity impairments related to disorders of the spinal nerves (C5 to C8 and T1), the brachial plexus, and major peripheral nerves of the upper extremities.”
48. Mr Beran’s submissions which sought to distinguish the brachial plexus from the peripheral nerves quoted selectively from this section and failed to consider the context.
49. Section 16.5a sets out Impairment Evaluation Principles. Section 16.5b sets out Impairment Evaluation Methods and begins:
“The upper extremity impairment is calculated by multiplying the grade of severity of the sensory deficit (Table 16-10a) and/or of the motor deficit (Table 16-11a) by their respective maximum upper extremity impairment value resulting from sensory and/or motor deficits of each nerve structure involved, as listed in section 16.5c, Regional Impairment Determination: spinal nerves, (Table 16-13); brachial plexus, (Table 16-14); and major peripheral nerves, (Table 16-15). When both sensory and motor functions are involved, the impairment values derived for each are combined (Combined Values Chart, p.604. The steps of the impairment determination method is detailed below.”
50. The Impairment Determination Method follows. Steps 3 to 5 of 10 require the Medical Assessor to:
“3. Grade the severity of sensory deficits or pain according to Table 16-10a and/or that of the motor deficits according to Table 16-11a.
4. Find the values for maximum impairment of the upper extremity due to sensory and/or motor deficits of the nerve structure involved: individual spinal nerve (Table 16-13), brachial plexus (Table 16-14), and major peripheral nerves (Table 16-15).
5. For each nerve structure involved, multiply the grade of severity of the sensory and/or motor deficits (see step 3 above) by the appropriate maximum upper extremity impairment value (see step 4 above) to determine the upper extremity impairment percent for each function.” (Emphasis in original).
51. Section 16.5c says that impairment of the peripheral nervous system may involve the spinal nerves at C5 to C8 and T1, the brachial plexus and the major peripheral nerves. It contains a section with each of those three headings. Table 16-14 appears in the section dealing with the brachial plexus and is headed “Maximum Upper Extremity Impairments Due to Unilateral Sensory or Motor Deficits of Brachial Plexus or to Combined 100% Deficits”.
52. A careful reading of AMA 5 shows that an injury to the brachial plexus is assessed as a peripheral nerve disorder.
53. The Medical Assessor did consider Table 16-14 at page 490 of AMA 5 and his reference to Table 16-4 is a typographical error.
54. The Guidelines do provide some important and relevant assistance to an assessor. Paragraph 2.9 provides:
“2.9 If an upper extremity impairment results solely from a peripheral nerve injury, the assessor should not also evaluate impairment(s) from AMA5 Section 16.4 ‘Abnormal motion’ (pp 450–79) for that upper extremity. AMA5 Section 16.5 should be used for evaluating such impairments.
For evaluating peripheral nerve lesions, use AMA5 Table 16-15 (p 492) together with AMA5 tables 16-10 and 16-11 (pp 482 and 484).
...”
55. That paragraph is relevant to the assessment of Ms O’Keefe’s impairment because her impairment “results solely from a peripheral nerve injury” within the meaning of AMA 5. She did not have a separate injury to the structure of her shoulder or to her right little finger. Both the Medical Assessor and Dr Anderson were in error to provide range of motion assessments for those structures.
56. Paragraph 2.10 is also relevant and it highlights another error made by the Medical Assessor. It provides:
“When applying AMA5 tables 16-10 (p 482) and 16-11 (pp 482 and 484) the examiner must use clinical judgement to estimate the appropriate percentage within the range of values shown for each severity grade. The maximum value is not applied automatically.”
57. The Medical Assessor determined that there was sensory deficit based on the middle and lower trunks of the brachial plexus and added the maximum amounts for sensory impairment of those structures, to reach 25% UEI. In addition to erroneously adding as opposed to combining values, he failed to have regard to the footnote to the table which reminded him to “See Table 16-10a to grade sensory deficit or pain”.
58. Because of the nature of the errors made by the Medical Assessor, a re-examination was necessary so that the assessment could be made in accordance with AMA 5 and the Guidelines. Dr Davies has done that and we adopt his assessment.
59. For these reasons, we have determined that the MAC issued on 17 November 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
REPORT OF THE EXAMINATION BY MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: M1-W23/21
Appellant: BUPA Care Services
Respondent: Amy O’Keefe
Examination Conducted By: Michael Davies
Date of Examination: 25 May 2022
Ms O’Keefe was examined by Dr Michael Long (General Surgeon) on 17 November 2021. He was asked to make an assessment of the right upper extremity and scarring in terms of whole person impairment, as a result of injuries on 20 January 2017 and 12 May 2017.
1. The workers medical history, where it differs from previous records
I went through the history in Dr Long’s report with Ms O’Keefe and she confirmed it was correct. She added that, in addition to the injections around the elbow and the Botox injections, she had nerve blocks performed from C2 to C6 on the right side by a pain specialist in a private hospital in Tamworth but could not recall when that was. She said they helped for a couple of weeks in terms of relieving her pain but they didn’t have any effect on the paraesthesia she gets in the right upper limb.
Ms O’Keefe’s current treatment is unchanged from when she saw Dr Long.
I went over her current symptoms, which are similar to those listed by Dr Long. She reports constant pain in the posterior right neck and shoulder and also in the anterior upper right chest. The pain runs down the right upper limb and is more marked over the ulnar aspect of the forearm and hand. She gets paraesthesia and cramping in the upper limb. She reports a weird sensation, which she describes as an intense shooting and burning pain at times. The right hand goes blotchy at times.
She has persistent clawing of the right fifth finger. She is unable to straighten the finger actively. She can straighten it passively but it spontaneously resumes a clawed posture.
2. Additional history since the original Medical Assessment Certificate was performed
Ms O’Keefe told me that there has been no change in her symptoms since the Medical Assessment Certificate was performed. There has been no change in her treatment. She told me there was talk of performing further injections in the neck but she has not heard any more about that.
Ms O’Keefe has not had any further investigations since the original Medical Assessment Certificate was performed.
3. Findings on clinical examination
Examination of the cervical spine produced no reports of tenderness. There was significant restriction of movement in the cervical spine. Forward flexion was through less than half the normal range. Neck extension was restricted by 50 percent. Lateral flexion to the right side was restricted to half the normal range and lateral flexion to the left side was restricted to a quarter of the normal range. Rotation to each side was barely half the normal range.
Examination of the right upper limb showed a surgical scar over the medial right elbow that extended into the forearm. It was 15cm in length, pale in colour and up to 4mm wide. It was tender to touch.
There were no findings of complex regional pain syndrome in the right upper limb. The right arm and forearm are each 1cm larger than the left. She is right hand dominant.
She reported paraesthesia to sharp testing throughout the right upper limb. She reported increased perception of sharp sensation over the ulnar forearm and hand and on the two fingers of the right hand, compared to the left upper limb. There was global impairment of light touch and sharp testing in the rest of the right upper limb and around the right shoulder girdle.
The right little finger is held in a constantly clawed position. Ms O’Keefe was not able to actively straighten that finger but could passively straighten it. However, it quickly resumed a clawed position. She has grade 4/5 power of flexion, extension and abduction in the right little finger. Strength in the right upper limb is otherwise normal. Reflexes are normal in both upper limbs.
There is impaired movement at both shoulders and this was significantly more impaired than when Dr Long examined her.
| Movement | Right | Left |
| Flexion | 100° | 100° |
| Extension | 40° | 40° |
| Abduction | 70° | 100° |
| Adduction | 30° | 40° |
| External rotation | 50° | 70° |
| Internal rotation | 40° | 40° |
Ms O’Keefe reported pain, a pinching sensation and paraesthesia in the neck and right shoulder region as the limiting factor for movement of both shoulders.
4. Assessment of Permanent Impairment
It is five years since the second injury. Ms O’Keefe’s condition has been stable for a long period of time. There has been no change in her reported symptoms since the Medical Assessment Certificate performed by Dr Long in November 2021. Her condition has stabilised and reached maximum medical improvement.
I do not believe there is assessable impairment in relation to movement at the right shoulder. Although Ms O’Keefe presented with significant restriction of movement at both shoulders, there have been variable ranges of movement reported in previous medical reports. Her range of movement was normal when seen by a physiotherapist in September 2017. Her range of movement was noticeably less today than when seen by Dr Long. There is no medical explanation for these variations.
Ms O’Keefe suffered a traction injury to the right arm, with symptoms and signs consistent with a brachial plexus traction injury. She has undergone two operations on her ulnar nerve and information in the documents indicate that the clawing in the hand developed following her ulnar nerve surgery and therefore represents a consequential injury.
Using the SIRA guides in conjunction with AMA 5, Ms O’Keefe has impairment in relation to the right ulnar nerve above the mid-forearm level. Using table 16-15, the maximum impairment for motor deficit is 46 percent upper extremity impairment. Using table 16-11, on page 484 of AMA 5, Ms O’Keefe has grade four impairment of motor function, with 20 percent motor deficit. 20 percent of 46 percent equals 9.2 percent, which rounds to 9 percent upper extremity impairment.
It is difficult to separate out sensory impairment for the ulnar nerve from the sensory impairment affecting the whole of the right upper limb. Ms O’Keefe has some degree of sensory impairment affecting the whole of the distribution of the right brachial plexus but it is more pronounced in the distribution of the lower trunk. Table 16-14 on page 490 of AMA 5 is the appropriate table to use when assessing brachial plexus injuries. The maximum sensory deficit for the lower trunk is 20 percent upper extremity impairment. Using table 16-10 on page 482, Ms O’Keefe falls into grade two, with 80 percent sensory deficit. 80 percent of 20 percent equals 16 percent upper extremity impairment.
The maximum sensory impairment for the upper and middle trunks of the brachial plexus is 30 percent (25 + 5) under table 16-14. Using table 16-10, Ms O’Keefe falls into grade three, with 60 percent sensory deficit. 60 percent of 30 percent equals 18 percent upper extremity impairment. Combining the upper limb impairment gives 37 percent upper extremity impairment. Using table 16-3 on page 439 of AMA 5, this converts to 22 percent whole person impairment.
Ms O’Keefe has scarring over the medial aspect to the elbow. She is conscious of the scar and it is tender. Is up to 4mm wide and 15cm long and there is trophic change. There is some colour contrast with surrounding skin. I assess two percent whole person impairment for scaring. Combining this with the above 22 percent gives a total of 24 percent whole person impairment.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W23/21 |
Applicant: | Amy Jean O’Keefe |
Respondent: | Bupa Care Services Pty Ltd |
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 T Michael Long 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) | |||||
| Right upper extremity | 12 May 2017 | Chapter 2, pages 10-12, paragraph 2.9 and 2.10 | Chapter 16, pages 479 to 490 Paragraph 16.5 Tables 16-10, 16-11, 16-14, 16-15. | 22 | 0 | 22 | |||||
| Scarring | 12 May 2017 | Chapter 14 pages 73-74 | 2 | 0 | 2 | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 24% | ||||||||||
0
2
0