Cabarrus v Sydney Animal Hospitals Norwest
[2024] NSWPICMP 440
•10 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cabarrus v Sydney Animal Hospitals Norwest [2024] NSWPICMP 440 |
| APPELLANT: | Dominique Cabarrus |
| RESPONDENT: | Sydney Animal Hospitals Norwest |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 10 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; thumb and wrist injury from dog bite; documents omitted from brief but Medical Assessor applied correct criteria; Held – Medical Assessment Certificate confirmed. |
RELATION TO A MEDICAL DISPUTE
Matter number: | M1-W9268/23 |
Appellant: | Dominique Cabarrus |
Respondent: | Sydney Animal Hospitals Norwest |
Date of decision: | 10 July 2024 |
Appeal Panel: | |
Member: | Catherine McDonald |
Medical Assessor: | James Bodel |
Medical Assessor: | Margaret Gibson |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 March 2024 Dominique Cabarrus lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Jonathan Negus, who issued a Medical Assessment Certificate (MAC) on 28 February 2024.
Ms Cabarrus relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error in failing to provide sufficient reasons for his assessment of Ms Cabarrus’ right upper extremity. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Cabarrus was employed by Sydney Animal Hospitals Norwest (SAHN) as a veterinary nurse. On 15 October 2020 she suffered an injury to her lumbar spine manoeuvring a large dog into a cage. She suffered a second injury on 8 January 2021, to her right upper extremity (thumb and wrist), when she was bitten by a dog between her thumb and index finger.
On 11 December 2023 Ms Cabarrus commenced two sets of proceedings – W9268/23 with respect to her lumbar spine and W9286/23 with respect to her right thumb and wrist. On 13 December 2023 the Personal Injury Commission (Commission) issued a Certificate of Determination consolidating both proceedings and directing that they proceed as W9268/23. SAHN filed a reply on January 2024 which dealt with both sets of proceedings.
The referral issued to the Medical Assessor referred to both matter numbers but said that the brief was to include “the Application and the attached documents”. A review of the file sent to us shows that the Commission only sent the Application to Resolve a Dispute (ARD) in W9268/23 to the Medical Assessor.
The Medical Assessor assessed both of the injuries, assessing 12% whole person impairment (WPI) in respect of Ms Cabarrus’ lumbar spine and 14% WPI in respect of her right thumb and wrist. The appeal is in respect of the right thumb and wrist injury only.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
Ms Cabarrus said that the Medical Assessor misapplied the Guidelines and failed to provide sufficient reasons. Her solicitor attached a bundle of documents from Sydney Pain Specialists (current to 7 March 2024) to the appeal but did not provide any reasons why we should consider those documents. SAHN objected to reliance on the documents because the material was already in the ARD and the material had little relevance to the issues on the appeal.
When we read the brief sent to us, it became apparent that the Medical Assessor had not received the ARD in W9286/23 and we issued a direction calling for it. We determined that the Medical Assessor had made a demonstrable error in not realising that there was no medical evidence concerning Ms Cabarrus’s thumb and wrist injury and in failing to call for the documents.
Once we received the ARD in W9286/23, we observed that the additional material sought to be relied on for the purpose of the appeal was included in that ARD, with the exception of a report and referral dated in February 2024.
Despite the lack of submissions about the relevance of the documents from Sydney Pain Specialists, we determined to admit them. For the reasons set out below, the additional documents do not change the outcome of the appeal.
As a result of that preliminary review, we determined that it was not necessary for Ms Cabarrus to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
Ms Cabarrus sought a re-examination:
“in order for a proper evaluative process to take place, by which questions may be asked of the Respondent about the extent of any pre-existing conditions.”
That submission has no relevance to this appeal in which Ms Cabarrus is the appellant and where there is no suggestion in the evidence that there is a relevant pre-existing condition.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Ms Cabarrus submitted that the Medical Assessor did not provide sufficient reasons to enable an understanding of his reasoning process and the basis on which the assessment was made. She said that error meant that she was deprived of a materially better outcome – that she would have been assessed with a greater impairment. The submissions set out a summary of treatment by Dr Standen, pain physician, and said that the Medical Assessor did not make reference to the required mechanism by which the body system was to be assessed, merely stating that “she held her hand with the thumb in a fairly flexed position with very limited movement” and noting “traumatic injury to soft tissues right thumb. Surgeries for debridement, scar release, and trigger release”.
Ms Cabarrus said that the Medical Assessor failed to comment on the neurological pain she experienced, which has been reported by treating providers and said that “no comment was made with respect to the neurological symptoms reported”. She said that the Medical Assessor did not engage with Dr Dixon’s assessment of permanent impairment and she submitted that the absence of findings on examination “does not satisfy the Wingfoot criteria to enable the reader to understand the nature of that conclusion by reference to the evidence, statutory criteria, and findings on examination”.
In reply, SAHN submitted that reports of neuropathic pain and neurological symptoms, and the material from treating pain specialists bore little relevance to the assessment conducted by the Medical Assessor. It noted that the Medical Assessor set out his examination findings for both Ms Cabarrus’ right thumb and wrist, and that neuropathic pain is not an assessable condition under the Guidelines. SAHN said that the Medical Assessor had not made a demonstrable error and that Ms Cabarrus had not demonstrated that the assessment had been made on the basis of incorrect criteria.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] (Vegan) the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
As set out above, we consider that the Medical Assessor made a demonstrable error. It is apparent from the face of the MAC that he did not refer to any reports about her right thumb and wrist injury and that he did not have all of the documents on which Ms Cabarrus relied. His error lay in either not contacting the Commission to ascertain whether all of the file had been referred to him or failing to formally call for those documents under s 324 of the 1998 Act. Despite his error, the MAC shows that the Medical Assessor applied the correct criteria under the Guidelines in making his assessment.
The medical dispute
Ms Cabarrus made a claim for compensation on 20 April 2023 in respect of her right hand, wrist and thumb based on Dr Dixon’s reports dated 25 October 2022 and
15 December 2022. The first report set out the assessment of permanent impairment and the second provided the results of the examination.Dr Dixon assessed permanent impairment in the following way in his report dated
25 October 2022:“That for the post traumatic stiffness of the right thumb is from Pie Charts 16-12 and 16-15, Pages 456-457 and Tables 16-8a, 16-8b and 16-9, Page 459, AMA V, 12% hand impairment.
That for the sensory loss of the right thumb is from Figure 16-8, Page 449, AMA V, 31% thumb impairment for the thumb, giving 12% hand impairment.
That for the sensory changes of her right hand is from Figure 16-8, Page 449, AMA V, 26% hand impairment.
This gives a combination of 38% hand impairment for the thumb, which equates to 34% upper extremity impairment.
That for the stiffness of the right wrist is from Pie Charts 16-12 and 16-15, Page 456-457, AMA V, 5% upper extremity impairment.
This gives a total of 37% upper extremity impairment which equates to 22% whole person impairment.
That for the very tender scar at her right thumb impacting on her ADLs is 1% whole person impairment.
This gives a total of 23% whole person impairment from the Combined Values Chart.”
Dr Dixon’s second report provided the basis for his assessment and deals with the lumbar spine injury as well as the injury to Ms Carbarns’ thumb and wrist.
Dr Bentivoglio saw Ms Cabarrus at the request of SAHN’s insurer and reported on
12 July 2023. He assessed 11% WPI in respect of only her right thumb and wrist, being 42% thumb impairment (or 17% hand impairment and 15% UEI) and 4% UEI in respect of her right wrist. Those results convert to 18% UEI and 11% WPI.The insurer made an offer in respect of 11% WPI on 1 September 2023, based on Dr Bentivoglio’s assessment discussed below. Dr Bentivoglio assessed Ms Cabarrus by reference to her right thumb and wrist only.
The ARD pleaded:
“The applicant worker sustained a dog bite to her right hand between the thumb and Index finger on 8 January 2021. The aggressive dog bit her hand while she was trying to restrain it and the dog had escaped from its muzzle. She had a puncture wound at the webbing between the right thumb and index finger. She underwent surgery to debride the dog wound and intravenous antibiotic cover was given for four days at Sydney Adventist Hospital. She then had a second surgery to her right thumb on 18 November 2021 at the San Hospital. That surgery involved trigger release as well as Z-plasty to lengthen the skin at her thumb.”
The ARD sought compensation in respect of Ms Cabarrus’ right upper extremity without limitation but the referral to the Medical Assessor was limited to her thumb and wrist. We were not provided with any correspondence passing between the parties between the letter making the claim and the preparation of the referral to the Medical Assessor. We note that it is common for the medical dispute to be refined by correspondence before a referral is agreed on.
The relevant part of the referral to the Medical Assessor asked him to assess Ms Cabarrus’ “Right upper extremity (Right thumb and wrist)”. It is the Commission’s practice to send the draft referral to the parties for review before sending it to the Medical Assessor, providing them with an opportunity to ensure that all relevant injuries and conditions are included.
There is no submission that the Medical Assessor should have assessed anything beyond Ms Cabarrus’ right thumb and wrist, though she does submit that the Medical Assessor was required to assess the neurological pain that she suffers as a result of those injuries. We are satisfied that the medical dispute was confined to the assessment of Ms Cabarrus’ right thumb and wrist.
The MAC
The Medical Assessor set out a thorough history of the injury, in a form similar to that which appears in Ms Cabarrus’ substantiative statement dated 22 August 2022, which she relied on in both proceedings. He noted that her current treatment was physiotherapy and that she was seeing Dr Standen for pain management and a psychologist on a fortnightly basis.
In respect of Ms Cabarrus’ right thumb and index finger, the Medical Assessor wrote:
“She is very stiff in the thumb and cannot create a full open hand. She gets shooting pains and tingling in the thumb and index finger and this can radiate through her wrist and up her arm. She feels weaker in the right wrist due to these pains. She is very sensitive to touch over the thumb area.”
The Medical Assessor noted that Ms Cabarrus was not taking pain medication because she was pregnant.
He summarised Ms Cabarrus’ activities:
“She also struggles with most domestic tasks around the house due to pain in her back and her hand.
She is unable to grocery shop effectively and needs to carry things in her left hand. Her lifting capacity is 5kg for her spine and as tolerated for her hand. She does not have a garden.
She used to drive a manual car but had to change it due to the pain to an automatic. She can sometimes drive 20-30 minutes before her spine stops her, but there are times when she gets in the car where it is already painful and she is very limited. Her right hand is painful immediately she holds the wheel.”
Before setting out his examination findings, the Medical Assessor said:
“At the commencement of the examination, Ms Cabarrus was advised that the examination would be conducted with all movements to be within a pain free range. Although some discomfort might be experienced at end range of movement, any discomfort during the examination should be reported immediately and the movement discontinued. All movements were measured using a goniometer and confirmed by repetition, if necessary. A tape measure is used, as required. Only the active range of motion was measured in terms of allowable methodology. Passive range of motion was reserved for clinical and diagnostic reasons.”
In respect of Ms Cabarrus’ right thumb, the Medical Assessor said:
“She had a surgical scar in the web space consistent with the prior Z-plasty. She held her hand with the thumb in a fairly fixed position with very limited movement. Skin colour was normal and no changes in sweating, but she does describe her thumb gets very hot although I could not demonstrate any significant temperature difference at the time of my examination. She did have significant allodynia with more pain on the volar aspect of the thumb than the dorsal aspect. There was some thenar eminence wasting.
The active range of motion in the thumbs as measured with a goniometer is as follows:
Figures 16-12, 16-15 and tables 16-8a, 16-8b and 16-9
RIGHT
Thumb impairment %
IP Flexion
5
8
IP Extension
0
1
MP Flexion
60
0
MP Extension
40
5
MP Opposition
2cm
22
Palm adduction
3cm
3
Radial Abduction
30
5
ADDED
44”
The Medical Assessor set out his findings in respect of Ms Cabarrus’ right wrist:
“She had a negative Tinel’s test for carpal tunnel syndrome although it did aggravate her thumb. Her ulnar sensation and muscle strength was good. I was unable to effectively test APB due to her pain.
The active range of motion in the wrists as measured with a goniometer is as follows:
Figures 16-28 & 16-31
RIGHT
UEI%
LEFT
Flexion
60°
0
60°
Extension
40°
4
60°
Radial deviation
20°
0
20°
Ulnar deviation
0°
5
30°
ADDED
9”
The Medical Assessor converted his findings of 44% impairment of the thumb to 18% hand impairment then 16% upper extremity impairment (UEI) which he combined with 9% UEI for the right wrist to reach 24% UEI or 14% WPI.
The Medical Assessor commented on the reports with respect to the lumbar spine only.
The Medical Assessor’s methodology
Ms Cabarrus said that the Medical Assessor’s failure to provide reasons for his assessment and the basis on which it was made deprived her of a materially better outcome. Though they are concise, we do not agree that the Medical Assessor failed to provide reasons. It does not necessarily follow that more extensive reasoning will of itself lead to a greater impairment rating.
Ms Cabarrus argued that the Medical Assessor failed to refer to the material provided to him. We accept that is an error and occurred as a result of an administrative oversight by the Commission. However, the Medical Assessor’s task is not to choose between the assessments of the parties but to make his own assessment. In State of New South Wales (NSW Department of Education) v Kaur[3] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[3] [2016] NSWSC 346.
The MAC template prompts the Medical Assessor to comment on the other reports in the file. The reason for those comments is to explain where his opinion differs from those relied on by the parties so that they can better understand the outcome. That did not occur in this case but it does not, of itself, vitiate the conclusion.
The Medical Assessor was required to assess Ms Cabarrus as she presented on the day of the examination[4] and what he observed on that day may be different to the observations of other assessors on different days. Dr Dixon’s examination took place in October 2022, 16 months before that by the Medical Assessor.
[4] Guidelines paragraph 1.6.
A Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [5] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
[5] At [36].
Ms Cabarrus submitted that the Medical Assessor applied incorrect criteria because he misapplied the Guidelines. Her submissions do not clearly state which aspects of the Guidelines the Medical Assessor misapplied. She provided a history of treatment and said that there was no reference to material provided or the physical examination and failed to comment on the neurological pain suffered. We have explained our conclusions about the failure to comment on other reports above.
We do not agree that the Medical Assessor failed to comment on the physical examination. As set out above, he said far more than the two sentences quoted at paragraphs 38 and 39 of Ms Cabarrus’ submissions. In accordance with paragraph 1.48 of the Guidelines, he provided a rationale consistent with the methodology and content of the Guidelines and AMA 5. The Medical Assessor assessed Ms Cabarrus’ impairment in respect of her right thumb and wrist by reference to the appropriate parts of AMA 5, using the same tables used by Dr Dixon and Dr Bentivoglio to assess the loss of the range of motion, as required by paragraphs 2.3 to 2.8 of the Guidelines.
We note that Dr Dixon’s assessments in respect of Ms Cabarrus’ right wrist and the loss of motion of the thumb were less than that of the Medical Assessor. The difference in the overall assessment of Ms Cabarrus’ thumb is in that Dr Dixon observed sensory loss which the Medical Assessor did not.
When the body parts not referred to the Medical Assessor (impairment of the hand and scarring) are removed from Dr Dixon’s assessment, his assessment for the right thumb converts to 62% thumb impairment which is 25% hand impairment and 23% UEI. Combined with 5% UEI in respect of Ms Cabarrus’ right wrist, Dr Dixon’s assessment totals 27% UEI or 16% WPI. Dr Bentivoglio assessed 11% WPI. While the Medical Assessor’s assessment does not exceed the 15% threshold, his overall assessment was not dramatically different from that of the other assessors in terms of WPI for the body systems referred to him.
A significant thrust of Ms Cabarrus’ submissions is that the Medical Assessor made no reference to the neurological symptoms reported.
Ms Cabarrus submitted that the Medical Assessor failed to comment on the neurological pain reported by her treating practitioners. She set out a series of extracts from Dr Standen’s notes about the treatment she has undergone for neuropathic pain. The submission elides two separate conditions, both of which the Medical Assessor considered, even without Dr Standen’s documents.
The neurological consequences of the injuries the subject of the dispute are assessable if they result in permanent impairment.[6] The concise examination findings show that the Medical Assessor was alert to testing for the neurological consequences of the injury.
[6] Needham v Wollongong City Council [2024] NSWSC 575.
Though Dr Standen was considering ordering further nerve conduction studies in early February 2024, Ms Cabarrus elected to proceed with the examination by the Medical Assessor in late February. Dr Standen noted on 5 February 2024 that previous nerve conduction studies were normal.
The Medical Assessor tested for carpal tunnel syndrome (entrapment of the median nerve at the wrist) using Tinel’s test and the results of that clinical testing were negative for carpal tunnel syndrome, though did cause some pain in her thumb, which might be expected, given the limited movement she has. The Medical Assessor said that Ms Cabarrus’ ulnar sensation was normal. He considered and commented on the potential neurological consequences of the injury and determined no assessment was warranted.
Neuropathic pain is different. The Guidelines set out the reasons for excluding chronic pain as a separate conclusion in paragraph 17.3:
“The reasons for excluding chronic pain, as a separate condition from the Guidelines are:
• It is a subjective experience and is, therefore, open to exaggeration or fabrication in the compensation setting. Assessment depends on the credibility of the subject being assessed. In order to provide reliability, applicants undergoing pain assessments require more than one examiner at different times, concordance with the established conditions, consistency over time, anatomical and physiological consistency, agreement between the examiners and exclusion of inappropriate illness behaviour.
• Pain cannot be measured and no objective assessment can be made.
• Tools to measure pain are based on self-reports and may be inherently unreliable.
• Some impairment ratings take symptoms into account and some of the ranges of impairment –eg whole person impairment (WPI) of the spine, may reflect the effect of the injury and pain on activities of daily living (ADL). This is not so for impairment assessment of the upper and lower limb, which is based on range of movement and diagnosis-based estimates, other than for peripheral nerve injury.”
Neuropathic pain can potentially result in impairment as a result of chronic regional pain syndrome (CRPS). That diagnosis has not been made in Ms Cabarrus’ case and the Medical Assessor was not asked to assess it.
Even though there was no referral in respect of CRPS, the Medical Assessor considered the aspects of the injury resulting from neuropathic pain. He observed that Ms Cabarrus held her thumb in a fixed position, that her skin colour was normal and that she did not experience sweating, even though her thumb sometimes becomes hot. The Medical Assessor was unable to demonstrate any temperature difference at the time of the examination. He observed allodynia (sensitivity to light touch) with more pain on the volar aspect of the thumb than the dorsal aspect and some thenar eminence wasting.
We note that Dr Standen said in her most recent report that the thenar eminence atrophy was a result of disuse.
The diagnostic criteria in chapter 17 of the Guidelines for diagnosis and assessment of CRPS are strict and the features observed by the Medical Assessor would not result in that diagnosis or an assessment of WPI for neuropathic pain.
While it is disappointing that the Medical Assessor did not have the relevant ARD, the MAC shows that the Medical Assessor undertook a careful examination and reported concisely on it. We do not agree that the Medical Assessor failed to provide reasons nor that Ms Cabarrus was deprived of the chance of a better outcome by the MAC.
For these reasons, we have determined that the MAC issued on 28 February 2024 should be confirmed.
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