Cassidy v BUPA Aged Care Australia Pty Ltd
[2024] NSWPICMP 793
•25 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cassidy v BUPA Aged Care Australia Pty Ltd [2024] NSWPICMP 793 |
| APPELLANT: | Peta Danielle Cassidy |
| RESPONDENT: | BPA Aged Care Australia Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jacqueline Snell |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 25 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessment Certificate (MAC) contained demonstrable error as the Medical Assessor (MA) failed to assess TEMSKI/scarring on the appellant’s right and left elbows; whether the MA’s assessment was on the basis of incorrect criteria as the MA ought to have assessed the appellant “by way of analogy” in accordance with paragraph 1.23 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021; Medical Appeal Panel accepted the MA erred in failing to assess TEMSKI/scarring on the appellant’s right and left elbow and the method he adopted in assessing the permanent impairment sustained by the appellant resulting from her bilateral upper extremity injury; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 September 2024 Peta Danielle Cassidy (Ms Cassidy) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 August 2024.
Ms Cassidy 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 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.
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 Cassidy made a claim for permanent impairment compensation resulting from injuries to her left upper extremity (elbow) and right upper extremity (elbow) during the course of her employment with BUPA Aged Care Australia Pty Ltd (BUPA), with date of injury of 1 September 2018, which was disputed. An Application to Resolve a Dispute with lodged with the Personal Injury Commission (Commission) on 24 May 2024 and a Reply was lodged with the Commission on 12 June 2024.
The dispute arising as to the permanent impairment sustained by Ms Cassidy resulting from injury sustained to her right upper extremity and left upper extremity was remitted to the President for referral to a Medical Assessor.
The Medical Assessor examined Ms Cassidy on 2 July 2024 and the MAC in which the Medical Assessor assessed Ms Cassidy as having sustained 2% whole person impairment resulting from injury to her right upper extremity and left upper extremity issued on 20 August 2024.
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 Procedural Direction PIC7.
Neither party requested Ms Cassidy undergo a further medical examination and as a result of that preliminary review, the Appeal Panel determined it was not necessary for Ms Cassidy to undergo a further medical examination because while the Appeal Panel is of the view the Medical Assessor erred in (a) his failure to assess TEMSKI/scarring and (b) the method he adopted in assessing the permanent impairment sustained by Ms Cassidy resulting from her bilateral upper extremity injury in that he should have assessed her by way of analogy, the Appeal Panel did not consider either of these errors necessitated Ms Cassidy undergoing 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.
MAC
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 provided written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, Ms Cassidy submits:
(a) the MAC contains demonstrable error as the Medical Assessor failed to assess scarring on Ms Cassidy’s right and left elbows, with Ms Cassidy relying on the fact that the independent medical reports accompanying both the Application to Resolve a Dispute and the Reply included assessment of whole person impairment resulting from the scarring, and
(b) the Medical Assessor’s assessment was on the basis of incorrect criteria as the Medical Assessor ought to assess Ms Cassidy “by way of analogy” in accordance with paragraph 1.23 of the Guidelines, as had Dr Anderson in his capacity as independent medical examiner, rather than confining himself to paragraph 2.18 of the Guidelines.
In reply, BUPA submits:
(a) the MAC does not contain demonstrable error because of the Medical Assessor’s failure to assess scarring on Ms Cassidy’s right and left elbows as there was no doubt the Medical Assessor was aware of the scarring at the time his assessment of Ms Cassidy, which were in the nature of “uncomplicated surgical scars” and did not rate assessment of whole person impairment, and in any event the Medical Assessor’s assessment was consistent with the Application to Resolve a Dispute and the referral, neither of which provided for assessment of scarring, and
(b) the Medical Assessor’s assessment was not on the basis of incorrect criteria in circumstances where there was no dispute with respect to Ms Cassidy’s diagnosis of bilateral epicondylitis (Dr Anderson and Professor Steadman, in their capacity as independent medical examiners, and the Medical Assessor all having diagnosed Ms Cassidy with bilateral epicondylitis) with the Medical Assessor having assessed Ms Cassidy accurately and consistent with paragraph 2.18 of the Guidelines.
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.
We are mindful the task of the Medical Assessor was described by the court in State of New South Wales v Kaur ;[1]
“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…”
[1] [2016] NSWSC 346.
We are also mindful justification of intervention by an Appeal Panel such as ours was also discussed by the court in Ferguson:[2]
“The Appeal Panel accepted that intervention was only justified: if the categorization was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
[2] [2017] NSWSC 140 (Ferguson).
The matter of Ferguson was cited with approval by the court in Parker v Select Civil Pty Limited.[3]
[3] [2018] NSWSC 140.
In determining Ms Cassidy’s appeal, we are mindful too that in Campbelltown City Council v Vegan[4] the court held 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.
[4] [2006] NSWCA 284.
Review of the MAC
The Medical Assessor recorded a date of injury of 12 July 2024. The Medical Assessor recorded Ms Cassidy developed pain in the lateral part of her right elbow, which she attributed to the nature and conditions of her employment with BUPA and was subsequently diagnosed with extensor epicondylitis. The Medical Assessor noted Ms Cassidy had undergone two surgical procedures in her right elbow, with symptoms persisting. The Medical Assessor recorded Ms Cassidy developed similar symptoms in her left elbow, with subsequent diagnosis of extensor epicondylitis. The Medical Assessor noted Ms Cassidy had again undergone two surgical procedures in her left elbow, with symptoms persisting.
The Medical Assessor described Ms Cassidy’s symptoms on assessment:
“Right arm: She has pain up and down the lateral aspect of her arm. She is also developing some pain over the medial aspect of her elbow. She is reporting numbness in all of the fingertips.
Left arm: She has similar symptoms, but she says they are not as severe.”
The Medical Assessor said of Ms Cassidy that she reported she experienced pain in the lateral part of her elbows when carrying groceries and had difficulty with any repetitive movements, driving and vacuuming.
The Medical Assessor relevantly reported his findings on physical examination, which included bilateral elbow range of motion in the following terms:
Movement
Left
right
Extension
-10 degrees
-10 degrees
Flexion
130 degrees
130 degrees
Pronation
90 degrees
90 degrees
Supination
90 degrees
90 degrees
The Medical Assessor noted “there were 4cm scars over both lateral epicondyles”.
The Medical Assessor provided comment regarding opinions provided by Dr Anderson and Professor Steadman in their capacity as independent medical examiners:
“With respect to the reports by Dr Anderson dated 4 November 2022 and 1 December 2023, he assesses 7% whole person impairment for each side on the basis that Ms Cassidy has a ‘chronic pain condition’ but notes further that she did not satisfy the criteria to make an assessment of complex regional pain syndrome. Whilst Dr Anderson notes ‘I did not think she has a peripheral nerve disorder,’ he notes the SIRA Guidelines page 5, paragraph 1.23 and assesses her condition as being analogous to a Grade III impairment of the median nerve. He subsequently increases this to 10% whole person impairment on the right.
Page 5 paragraph 1.23 notes ‘The assessor’s judgement based on experience, training skill, thoroughness clinical evaluation and ability to apply the Guidelines criteria is intended, will enable and reproducible assessment to be made of clinical impairment.’ Whilst Ms Cassidy is significantly impaired, her diagnosis is extensor epicondylitis and this is specifically dealt with in SIRA page 12, paragraph 2.18.
With respect to the reports by Dr Steadman dated 14 February 2022 and 8 March 2022, I agree with assessment of 1% whole person impairment for each elbow.”
The Medical Assessor assessed Ms Cassidy with 1% whole person impairment resulting from injury sustained to her right upper extremity (right elbow) and 1% whole person impairment resulting from injury sustained to her left upper extremity (left elbow). The Medical Assessor provided explanation of his calculations:
“Restricted range of motion in the elbows is assessed according to AMA5 page 472 16.43 and 474 16.37. On the basis of loss of extension, 1% upper extremity impairment is assessed for either elbow which, according to AMA 5 page 439 Table 16.3 converts to 1% whole person impairment.
SIRA page 12 paragraph 2.18 also assesses 1% whole person impairment for epicondylitis of the elbow.”
Review of Ms Cassidy’s statement
Review of Ms Cassidy’s statement dated 17 May 2024 relevantly demonstrates the injury she has sustained in the nature of bilateral epicondylitis has significantly impacted her life. She describes the chronic pain she suffers as “terrible.” Ms Cassidy describes her current symptoms:
“I have a 3kg lift limit. I can’t do anything repeatedly with my arms. Can’t grasp things, can’t stand for long periods of time because my arms can’t hang by my side without pain.
I don’t push or pull so I can’t do groceries alone. I only wash my hair once a week as the process is long and painful. I don’t play sports anymore.
The more I must move the worse the pain gets. Housework is restricted, I can’t scrub or wipe with force. Cooking is limited to what is being cooked, I can’t stir pots, mash potatoes, drain heavy pots of water etc. I bought a jar opener so I can open new jars because I’m weak in grip strength and it hurts.
I drive for an hour, that’s when the pain gets too much, and I must rest. Less if it’s raining or the road is rough as I need to hold the steering wheel tighter.
My pain is in the front tendon area of both arms. And my elbow joints. I have sudden sharp shooting pains down her arms onto the top of hands and up the back of arms. Numbness and tingling in my fingers and swelling in my wrists and hands. Burning in the front of my arms and very sensitive to the cold. I have trouble sleeping, both elbows like to be repositioned regularly, so they wake me up with pain…”
Review of the independent medical evidence
Dr Anderson
Ms Cassidy was initially assessed by Dr Anderson in his capacity as independent medical examiner on 29 September 2020 following which Dr Anderson provided a report dated the same day. Dr Anderson is an occupational physician.
Dr Anderson described Ms Cassidy as “particularly dysfunctional with both upper limbs” at the time of his initial assessment. Dr Anderson had available copy ultrasound scan right elbow dated 23 March 2020 which demonstrated “mild to moderate lateral epicondylitis”.
Following examination of Ms Cassidy’s upper limbs Dr Anderson reported:
“There were well healed surgical scars over the lateral surface of each elbow. These would be consistent with the surgical approaches. This whole area was exceptionally tender and very irritable bilaterally. It was just about the same on each side. On the right side there was also tenderness on the medial side, indicating probable medial epicondylitis.
There was a reasonably normal range of movement of the major joints of each upper limb. Everything presented very symmetrically and no other features such as neurological or vascular dysfunction were identified.”
Dr Anderson provided diagnosis:
“Ms Cassidy has developed lateral epicondylitis on each side. This has developed into a surprisingly severe condition. On each side it has been completely resistant to normally accepted conservative management. Similarly, there has been no significant improvement following normally accepted surgical management. At this assessment she remains grossly dysfunctional at both elbows. Due to the severity of her condition and its virtual complete resistance to accepted clinical management, I would come to the conclusion that she has developed a chronic pain condition. There is, however, no evidence of the development of complex regional pain syndrome.”
Dr Anderson also noted Ms Cassiday had also developed medial epicondylitis on the right side.
Relevant to permanent impairment, Dr Anderson wrote:
“This is initially addressed on Page 12 of the SIRA Guidelines, Paragraph 2.18. With this condition persisting chronically, there is provision for 1% WPI on each side. I would, however, suggest that this falls very far short of the clinical condition as presented and would suggest that a fair and reasonable whole person impairment is substantially greater. In order to address this, it is necessary to consider an analogous according to the SIRA Guidelines Paragraph 1.23. in order to address this, I am guided by Table 16-15 on Page 492 of AMA 5. Mrs Cassidy’s condition in each upper extremity is above the mid-forearm. In this table the maximum percent upper extremity impairment for the median nerve above the forearm is 39%. This is modified by Table 16-10 on Page 482 of AMA5. Grade III appears appropriate. I am persuaded that 30% of the maximum is similarly appropriate on each side, which gives an upper extremity of 11% on each side. From Page 439, Table 16-03 this converts to a whole person impairment of 7% on each side. I would suggest that this is a much more appropriate level of impairment for the sever extent of her current clinical presentation.”
Ms Cassidy was re-assessed by Dr Anderson on 3 November 2022 following which he provided a report dated 4 November 2022 in which he described Ms Cassidy’s clinical condition as “remaining virtually identical” despite further medical management. Dr Anderson described Ms Cassidy as continuing to be suffer “a lot of severe pain and dysfunction associated with each elbow.” Dr Anderson had available to him MRI scan left elbow dated 28 September 2020 and MRI scan elbows dated 22 August 2022 which demonstrated previous lateral extensor tendon repair and nerve conduction studies dated 1 July 2021 which identified no significant features.
Following examination of Ms Cassidy’s upper limbs, Dr Anderson relevantly reported:
“She still has the extreme sensitivity and tenderness over the lateral sides of each elbow and also on the medial side of the right elbow…. At this assessment she was much more comfortable with the elbows slightly flexed. This was measured at 30 degrees bilaterally. She could fully extend each elbow, but this was rather painful. She was able to flex each elbow to more than 140 degrees on either side. There was a completely normal range of movement of …. the elbows, although attention is drawn to the more comfortable position with the elbow flexion of 30 degrees bilaterally. Sensation was reduced in the ulnar distribution on the right side.”
On this occasion Dr Anderson provided diagnosis:
“She continues to have chronic and severe epicondylitis. This is worst on the right side where there is medial and lateral epicondylitis. On the left side it is just lateral epicondylitis.”
Relevant to permanent impairment, Dr Anderson wrote:
“I would draw attention to my previous assessment of whole person impairment. In order to provide what I considered was a ‘fair and reasonable’ assessment, an analogous condition was selected. Since I last saw Mrs Cassidy, there has been no change one way or the other to her clinical condition and therefore, her whole person impairment remains exactly as it was when I previously saw her.”
Ms Cassidy was again re-assessed by Dr Anderson on 30 November 2023 following which he provided a report dated 1 December 2023. Dr Anderson also had available to him on this occasion earlier diagnostic imaging being ultrasound of right elbow dated 8 June 2019, which demonstrated partial thickness tear common extensor origin with partial healing and ultrasound left elbow dated 8 August 2019, which demonstrated previous surgical procedure at the origin of the extensor tendon complex. Dr Anderson said of Ms Cassidy:
“At this assessment she continues to have very gross dysfunction of each arm, particularly from the elbows distally. The situation is more severe on the right than the left.”
Following examination of Ms Cassidy’s upper limbs, Dr Anderson relevantly reported:
“The range of movement of the … elbows … remains normal and symmetrical… At this assessment she had a relatively mild positive Tinel’s sign for the median nerve on the right but not on the left. Cautious provocation Tine’s at the elbows was negative for the ulnar nerve. An extensive assessment using two point discrimination was conducted on each upper limb. Above the elbows, she was fairly accurate at determining pinprick and two point discrimination. Below the elbow there was global reduction in the capacity to identify firstly pin prick, and secondly two point discrimination, which was applied at over 1.5cm.”
Dr Anderson provided diagnosis:
“Mrs Cassidy continues to have severe dysfunction in both elbows. It has already been identified that she had chronic lateral epicondylitis bilaterally. This has developed into a chronic pain condition where the right side is more severely affected than the left.”
Relevant to his assessment of permanent impairment, which included response to specific questioning as to whether Ms Cassidy also suffered from scarring and/or peripheral nerve disorder, Dr Anderson wrote:
“a. As already advised, I do not think she has a peripheral nerve disorder as such, but I will again raise the issue that she does have a chronic pain condition. I had previously addressed this by way of an analogy and selected the median nerve as the most appropriate for sensory deficit. I had originally modified this with the modification of Table 16-10 on Page 482 of AMA5. At this stage Grade III was appropriate bilaterally. This had resulted in an upper extremity impairment of 11% bilaterally. When converted to whole person impairment, this was 7% on each side. Now, however the situation is worse on the right side and rather than 30% of the maximum of 39% upper extremity impairment on the right, her condition is assessed at 40%. This therefore gives an upper extremity impairment of 16% on the right, which converts to 10% WPI. Therefore, since I last saw her, there has been further deterioration of her condition with an increase in her whole person impairment on the right side.
b. The scarring is addressed in the SIRA Guidelines Page 74, Table 14.1. Mrs Cassidy is very conscious of the scars which are very obvious, particularly with short sleeved garments, which she was wearing at this assessment. She usually tries to keep these areas covered. The scarring is pigmented, slightly tethered on the left side where there is also slight contour alteration. There is pigmentation alteration on each side as well. With these features, she would reasonably qualify for a further 1% WPI. This combines to a final whole person impairment of 17%.
c. I would like just to make a final comment about this case. Mrs Cassidy now has a chronic pain condition which is affecting both arms and is having a very profound effect on her functional capacity. We are therefore dealing with a very complex phenomenon which is not that well understood. To simply regard her diagnosis as ‘chronic bilateral lateral epicondylitis’ without addressing this chronic pain condition is in appropriate and completely ignores a chronic pathological painful condition.”
Prof Steadman
Ms Cassidy was initially assessed by Prof Steadman in his capacity as independent medical examiner on 31 January 2022 following which he provided a report dated 14 February 2022. Prof Steadman is an orthopaedic surgeon. Prof Steadman had available to him the ultrasound right elbow dated 8 June 2019, ultrasound left elbow dated 8 August 2019, ultrasound right elbow dated 23 March 2020 and nerve conduction study dated 1 July 2017, previously referred.
Following clinical examination Prof Steadman relevantly reported:
“On examination of her right and left elbows the right elbow has a 4 cm anterolateral incision consistent with lateral epicondyle surgery. The left equally is 7 cm with a less attractive scar. I note there is a fixed flexion deformity bilaterally of about 10 degrees with both elbows flexed to 140 degrees. Supination and pronation are full… she also has tenderness of the medial epicondyle of both, a bit worse on the right but there is no bogginess or oedema. The ulna nerve is slightly irritable, and she complains of some sensory loss in the tips of both little and ring fingers of both hands. We tested her grip strength and found it to be 16 kg force which is very low, and she said it was painful. There was slight reduction by the third test.”
Prof Steadman provided diagnosis of bilateral epicondylitis and said of Ms Cassidy “she has had a difficult course since the injury and has had bilateral surgery reportedly without success”.
Relevant to assessment of permanent impairment on this occasion, Prof Steadman addressed this in initial report and also his supplementary report dated 28 March 2022, ultimately providing assessment of 4% WPI, being a total of 2% WPI resulting from TEMSKI/scarring of both elbows combined with a total of 2% WPI resulting from loss or bilateral elbow range of motion suffered by Ms Cassidy. Prof Steadman relevantly wrote:
“As per New South Wales fourth edition guides section 2.18 epicondylitis can be assessed if there have been symptoms longer than 18 months and there are consistent findings in which case a 1% WPI can be applied. However, they also direct that if there are any physical signs such as loss of range of motion then this would be preferred and, in this case, the 10 degrees fixed flexion deformity only attracts a 1% WPI.
Rule 2.18 insists on applying the rule of liberality but in this case both impairments on physical signs are the same. The scar of the left is worse than on the right …”
Ms Cassidy was re-assessed by Prof Steadman on 7 February 2024 and provided a report dated 27 February 2024. Prof Steadman now had available to him X-ray and ultrasound both elbows dated 22 August 2022 previously referred, and MRI both elbows dated 22 October 2022 on which he provided comment:
“Shows the previous surgical scars. The key point of the scan is that bilaterally there is no evidence of re-tearing or significant residual inflammation. The collateral ligaments of the left elbow are intact. Three is no evidence of any significant arthritis and there is no evidence of any significant ulnar nerve pathology which was evident clinically. In the right elbow the changes are much the same. Intact ligaments. No arthritis and the ulnar nerve looks satisfactory, but the clinical signs would suggest otherwise.”
Prof Steadman described Ms Cassidy as reporting “little or no change or improvement in her arms” and regarding diagnosis he noted “she has had previous operation on her lateral epicondyles and has significant scarring in relation to that.”
Relevant to assessment of permanent impairment on this occasion, Prof Steadman wrote:
“According to her clinical signs which include the scarring, there is no difference in range of motion, and I made commentary last time regarding the different techniques in the rule of liberality. Permanent impairment has not changed.”
Review of treating medical evidence
Ms Cassidy has relevantly come under the general medical care of the Fitzroy Medical Centre and Connection Medical Centre and the orthopaedic care of Dr Hatfield and Dr Prince, who is her treating surgeon. Dr Hatfield only reviewed Ms Cassidy on one occasion on 18 February 2020 on behalf of Dr Prince. When last reviewed by Dr Prince on 28 April 2021, while Dr Prince reported no follow up plans to review Ms Cassidy, he was acutely aware Ms Cassidy was suffering chronic pain and was under the care of Dr Jain.
Ms Cassidy initially came under the pain management care of Dr Jain subsequently she came under the pain management care of Dr Frank on her relocation to Queensland.
When last reviewed by Dr Jain in November 2021 Dr Jain reported:
“Peta continues to suffer bilateral elbow pain, and she is quite tender at the scar of a previous surgery site. Her Tinel’s sign is positive and there seems to be some form of neuroma/neuritis formation around that area… there are no signs or symptoms of CRPS.”
When last reviewed by Dr Frank in December 2022 Dr Frank requested approval for a diagnostic bloc followed by an RF ablation or perineural injection treatments and relevantly reported:
“She reports her symptoms are much the same as previously with persisting pain in both lateral elbows and over the posterior forearms. The left forearm has more of a constant burning pain and right forearm has more severe sharp intermittent pains. On examination she shows some allodynia and reduced sensation in the distribution of the posterior antebrachial nerve as well as the radial nerve… I suspect a large component of her current symptoms are related to ongoing neuropathy of the radial nerve, in particular the posterior antebrachial branch of the radial nerve.”
Legal considerations
Notices issued in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1999
Ms Cassidy was issued with notices dated 31 March 2022 and 25 January 2023 in which she was advised that her claim for permanent impairment compensation resulting from “bilateral elbow injuries” payable under s 66 of the Workers Compensation Act 1987 was declined, with a summary of the decision to decline her claim in the following terms:
“We do not believe that you are eligible for permanent impairment lump sum compensation because your accepted physical injury has not resulted in more than 10% permanent impairment as required by section 66(1) of the Workers Compensation Act 1987.”
In providing reasons for the decision, it was noted Ms Cassidy had been orthopaedically assessed by Prof Steadman who had provided two reports in his capacity as independent medical examiner, a substantive report dated 14 February 2022 and a supplementary report dated 28 March 2022, and had relevantly assessed Ms Cassidy with 2% whole person impairment resulting from scarring.
Application to Resolve a Dispute
In Ms Cassidy’s Application to Resolve a Dispute dated 24 May 2024 the injury description is in the following terms:
“Lateral epicondylitis on the left side.
Medial and lateral epicondylitis on the right side.”
There is no mention of scarring.
In Ms Cassidy’s Application to Resolve a Dispute referred she claims permanent impairment compensation for 17% whole person impairment resulting from injury to her left upper extremity and her right upper extremity. There is no claim for permanent impairment compensation resulting from TEMSKI/scarring.
Referral for Assessment of Permanent Impairment
In the Amended Referral for Assessment of Permanent Impairment to Medical Assessor dated 14 June 2024 the body parts referred to the Medical Assessor are described in the following terms:
“left upper extremity (elbow), right lower extremity (elbow)”
There is no reference to TEMSKI/scarring.
Guidelines
Principles of permanent impairment assessments canvassed in the Guidelines relevantly include at clause 1.23:
“AMA5 (p 11) states: ‘Given the range, evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments … In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.’ The assessor must stay within the body part/region when using analogy.
The assessor’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.”
Assessment of upper extremity impairment is undertaken in accordance with Chapter 2 of the Guidelines, which provides that AMA 5 Chapter 16 (p 433) applies, subject to specified modification.
Clause 2.3 relevantly provides:
“Assessment of the upper extremity mainly involves clinical evaluation… The claimant will have a defined diagnosis that can be confirmed by examination.”
Clause 2.18 specifically provides for assessment of injury in the nature of epicondylitis of the elbow:
“This condition is rated at 2%UEI (1% WPI). In order to assess impairment in cases of epicondylitis, symptoms must have been present for at least 18 months. Localised tenderness at the epicondyle must be present and provocative tests must also be positive. If there is an associated loss of range of movement, these figures are not combined, but the method giving the highest rating is used.”
Assessment of TEMSKI/scarring is undertaken in accordance with Chapter 14 of the Guidelines which provides that AMA 5 Chapter 8 (p 173) applies, subject to specified modification.
Clause 14.4 relevantly provides for Table 14.1 of the Guidelines to be the table to be used for the evaluation of minor skin impairment.
Clause 14.6 provides:
“A scar may be present and rated as 0% WPI. Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”
Clause 14.8 provides:
“The TEMSKI is to be used in accordance with the principle of ‘best fit.’ The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide details as to why this category has been chosen over other categories.”
Clause 14.9 provides:
“Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value.”
Caselaw
At this point it is useful to note caselaw considered in submissions in this matter:
In Pace Farms Pty Limited v Taylor[5] in the absence of an impairment rating for an electric shock injury the Appeal Panel concluded the Medical Assessor was entitled to assess permanent impairment consistent with an analogous condition.
[5] [2021] NSWPICMP 115 (Pace Farms).
While in Bellinger v Workmates Australia Pty Ltd[6] Mr Bellinger submitted the Medical Assessor erred in failing to assess scarring in circumstances where both independent medical examiners had done so and the Appeal Panel considered the Medical Assessor had the advantage of inspecting the scar on the date of assessment and was entitled conclude not to make an assessment of impairment for scarring, it must be remembered that each case turns on its own facts and we are not bound by any finding of the Appeal Panel in Bellinger.
[6] [2021] NSWPICMP50 (Bellinger).
In Skates v Hills Industries Ltd[7] the principal question to be considered by the court was whether the referral entitled the Medical Assessor to assess the degree of permanent impairment arising from parts of the injured worker’s left upper extremity which were not specifically referred for assessment and in the context of Ms Cassidy’s matter where both Dr Anderson and Prof Steadman have provided assessment of TEMSKI/scarring resulting from Ms Cassidy’s injury in the nature of bilateral epicondylitis is important to note the court pointed out at [46]:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
[7] [2021] NSWCA 142 (Skates).
In Scone Race Club Ltd v Cottom[8] the court referred to the reasoning in Skates with specific reference to explanation by the court at [44]:
“The starting point is a ‘medical dispute.’ That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (WN) … the term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury … It may be expected that a as consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.”
[8] [2024] NSWCA 34.
Discussion
It is evident the task of the Medical Assessor was to assess Ms Cassidy as she presented on the day of the examination and to apply his own clinical judgment in the application of the Guidelines. It is also evident the Medical Assessor is not bound to agree with the findings of other assessors and neither is he required to choose between their assessments.
However, the Appeal Panel is of the view the Medical Assessor erred in (a) his failure to assess TEMSKI/scarring, and (b) the method he adopted in assessing the permanent impairment sustained by Ms Cassidy resulting from her bilateral upper extremity injury in that he should have assessed her by way of analogy.
Turning first to the Appeal Panel’s view the Medical Assessor erred in failing to assess TEMSKI/scarring, Skates and Cottom provide clear authority that where the medical dispute arising between Ms Cassidy and BUPA is “crystallised” in the documents attached to the Application to Resolve a Dispute and the Reply (in that both Dr Anderson and Prof Steadman have provided assessments of whole person impairment resulting from Ms Cassidy’s bilateral surgical scarring) it is appropriate the Medical Assessor assess TEMSKI/scarring despite there being no reference to TEMSKI/scarring in the Application to Resolve a Dispute lodged by Ms Cassidy or the subsequent referral for assessment by the Medical Assessor.
Although the Appeal Panel accepts BUPA’s submission the Medical Assessor was aware of Ms Cassidy’s surgical scarring at the time of his assessment (in that he noted “there were 4cm scars over both lateral epicondyles”) the Appeal Panel does not accept BUPA’s submission the Medical Assessor formed the view the scarring was in the nature of “uncomplicated surgical scars” and did not rate assessment of whole person impairment, against a backdrop of Ms Cassidy reportedly being very conscious of the scarring (which is described as pigmented with contour alteration) and Dr Anderson providing assessment of 1% whole person impairment resulting from TEMSKI/scarring and Prof Steadman providing assessment of 2% whole person impairment resulting from TEMSKI/scarring. Ms Cassidy is assessed by the Appeal Panel with 1% whole person impairment resulting from TEMSKI/scarring, which reflects the claim made by Ms Cassidy.
Turning next to the Appeal Panel’s view the Medical Assessor erred in the method he adopted in assessing the permanent impairment sustained by Ms Cassidy resulting from her bilateral upper extremity injury in that he should have assessed her by way of analogy, there is no medical debate regarding Ms Cassidy’s diagnosis of bilateral epicondylitis. While the Medical Assessor accepted Ms Cassidy was “significantly impaired” as a result of her injury, which is reflected in Ms Cassidy’s statement, treatment medical reporting and independent medical examination reporting, with the method to be adopted in assessment permanent impairment sustained by Ms Cassidy resulting from bilateral epicondylitis outlined in Clause 2.18 of the Guidelines, the Medical Assessor elected to assess the permanent impairment sustained by Ms Cassidy resulting from bilateral epicondylitis with reference to restricted range of motion, which in this particular matter resulted in 2% whole person impairment (which is the same percentage whole person impairment to be applied in the assessment of injury in the nature of bilateral epicondylitis).
As did the Medical Assessor, the Appeal Panel accepts Ms Cassidy is significantly impaired as a result of her injury in the nature of bilateral epicondylitis.
Ms Cassidy’s statement canvasses the significant affect her injury in the nature of bilateral epicondylitis has had on her life and there is acceptance by Ms Cassidy’s long-term treating orthopaedic surgeon, Dr Prince, that she suffers chronic pain as a result of her injury, with Ms Cassidy being under specialist pain management. When last reviewed by Dr Frank, under whose specialist pain management care she came following her relocation to Queensland, Dr Frank was sufficiently concerned about Ms Cassidy’s ongoing neuropathic symptoms that he requested approval for further treatment, which provided no significant relief.
On assessment Dr Anderson described Ms Cassidy’s injury as having developed “into a surprisingly severe condition” and with Ms Cassidy presenting as “grossly dysfunctional at both elbows” Dr Anderson also concluded Ms Cassidy had developed a chronic pain condition. On assessment Prof Steadman accepted Ms Cassidy “has had a difficult course since the injury and has had bilateral surgery reportedly without success.”
While the Appeal Panel accepts that clause 2.18 specifically provides for assessment of injury in the nature of bilateral epicondylitis and the Medical Assessor has adopted an available method in assessing the permanent impairment sustained by Ms Cassidy resulting from her injury in the nature of bilateral epicondylitis in that his assessment was based on her associated loss of range of movement, the Appeal Panel is of the view that in circumstances where there is specialist medical acceptance Ms Cassidy suffers chronic pain as a result of her injury and there is independent medical acceptance, including that of the Medical Assessor, Ms Cassidy is ”significantly impaired” as a result of her injury, the Appeal Panel is of the view the method to be adopted in assessing the permanent impairment sustained by Ms Cassidy resulting from her bilateral upper extremity injury should be way of analogy and restricted range of motion.
While the method adopted by Dr Anderson in assessing the permanent impairment sustained by Ms Cassidy resulting from her bilateral upper extremity injury was with reference to the median nerve, which he considered was the most appropriate for sensory deficit, the Appeal Panel considers the medical evidence demonstrates a branch of the radial nerve to be most appropriate for sensory deficit, and notes in particular Dr Frank’s opinion that “a large component of her current symptoms are related to ongoing neuropathy of the radial nerve, in particular the posterior antebrachial branch of the radial nerve.”
Having selected the radial nerve as the most appropriate for sensory deficit in the circumstances of Ms Cassidy’s case, the Appeal Panel noted that Table 16-15 provides for the maximum upper extremity of 5% and with reference to Table 16-10 the Appeal Panel considers it reasonable to suggest Grade III with 60% sensory deficit to be appropriate when considering Ms Cassidy’s reported symptomology and clinical findings, which results in an upper extremity impairment of 3% for each elbow, which equates to 2% whole person impairment for each upper extremity.
When combined with the demonstrated range of motion Ms Cassidy suffers resulting from her injury in the nature of bilateral epicondylitis, which results in an upper extremity impairment of 4% for each elbow, which also equates to 2% whole person impairment for each upper extremity, Ms Cassidy is assessed by the Appeal Panel with 4% whole person impairment of her left upper extremity and 4% whole person impairment of her right upper extremity.
Using the Combined Values Chart the Appeal Panel has assessed Ms Cassidy as having sustained 9% whole person impairment resulting from injury in the nature of bilateral epicondylitis and TEMSKI/scarring.
Conclusion
The Appeal Panel is of the view the Medical Assessor was in error in (a) his failure to assess TEMSKI/scarring, and (b) the method he adopted in assessing the permanent impairment sustained by Ms Cassidy resulting from her bilateral upper extremity injury in that he should have assessed her by way of analogy.
For the reasons discussed above, the Appeal Panel has determined that the MAC issued on 20 August 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4136/24 |
Applicant: | Peta Danielle Cassidy |
Respondent: | BPA Aged Care Australia 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 Medical Assessor Dr Kuru and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Right upper extremity | 12 July 2024 | Chapter 1 Chapter 2 | Chapter 16 Pages 433-21 Table 16.3 Table 16.10 Table 16.15 | 4% | nil | 4% |
| Left upper extremity | 12 July 2024 | Chapter 1 Chapter 2 | Chapter 16 Pages 433-521 Table 16.3 Table 16.10 Table 16.15 | 4% | nil | 4% |
| TEMSKI/ scarring | 12 July 2024 | Chapter 14 page 73 | - | 1% | Nil | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
0
8
0