Cerebral Palsy Alliance Australia v Clarke

DETERMINATION OF APPEAL PANEL
CITATION:	Cerebral Palsy Alliance Australia v Clarke [2022] NSWPICMP 412
APPELLANT:	Cerebral Palsy Alliance Australia
RESPONDENT:	Catherine Clarke
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	21 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - The appellant submits that the Medical Assessor (MA) erred in failing to make any deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 and failed to properly assess activities of daily living (ADLs); Held – Panel agreed; extensive evidence of prior injuries not noted by the MA; MA’s reasons regarding ADLs brief but adequate; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 August 2022 Cerebral Palsy Alliance Australia (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Neil Berry, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 8 July 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, 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.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in failing to make a deduction pursuant to s 32 of the 1998 Act and failed to provide reasons for his application of an interference with the activities of daily living (ADL’s) under table 4.34 and 4.35 of the Guidelines.
In reply, the respondent submits that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of the cervical spine, lumbar spine, left upper extremity (shoulder) and right upper extremity (shoulder) resulting from an injury on 3 May 2019.
The MA obtained the following history:
“Ms Clarke told me that she was working at a Group Home in North Ryde which had four clients who were all suffering from cerebral palsy. One of the clients was a very tall woman who often went into psychosis and on 3 May 2019, while working a night shift alone, the client pushed and pulled Ms Clarke who managed to control her. Ms Clarke subsequently provided an incident report.
The following night there was another episode of pushing and pulling and Ms Clarke was then suffering from pain in the neck, back and across both shoulders.
Her memory of events is somewhat blurred, but she does recall attending her general practitioner who arranged for her to have X-rays done and then referred her for physiotherapy and she was unable to return to work.”
Present symptoms were described as follows:
“Ms Clarke confirmed that she has not returned to work as she is unable to deal safely with the clients and also protect herself. She indicated that her neck is still painful. Her back is her worst area and the pain extends to her buttocks. Ms Clarke also has pain across the back of both shoulders. Her sleep is disturbed at night and she has difficulty carrying out physical activities.”
As regards any previous or subsequent accidents, injuries or condition, the MA said:
“Ms Clarke confirmed that she had three previous episodes of back pain which had settled and while she had lost time for work no specific claim had been made. Apart from that, there have been no other injuries or claims for compensation.”
As regards social activities and ADL’s, the MA said:
“Ms Clarke told me that she is a divorced woman with no children. She is living in a rented house and her next -door neighbour is paid to do the lawns and gardens.”
Findings on physical examination were reported as follows:
“Cervical Spine.
Ms Clarke was diffusely tender to palpation. She demonstrated a full range of rotation, flexion, extension and lateral flexion. There was no muscle spasm, no muscle guarding and there was normal spinal contour.
Upper Extremities.
Ms Clarke had a restriction of the range of movement which was equal in both shoulders. She was tender across the posterior aspect of both shoulders. There was no wasting, swelling or dropping of the shoulders. Reflexes were intact and sensation was normal and there was no evidence of unilateral muscle wasting. (Please see the attached worksheet) for the range of movement at the shoulders.
Thoracolumbar Spine.
Ms Clarke was noted to be stiff when moving and the stiffness was related to her low back. She was noted to be tender on examination. Flexion was to half range, extension was one third of the normal range and rotation was half range. The lumbar lordosis was flattened but there was no paraspinal muscle spasm.
Lower Extremities.
There was a full range of motion of all joints. Reflexes, sensation and power were intact and there was no evidence of unilateral muscle wasting.”
The MA then summarised the radiological material he had as follows:
“X-ray Cervical Spine dated 18 May 2019 shows degenerative changes with no evidence of trauma.
Nuclear Bone Scan dated 28 November 2019 shows mild arthritic changes in the cervical, thoracic and lumbar spine and tendinosis in both Achilles tendons.
MRI Thoracic Spine dated 2 August 2018 shows degenerative changes at T8/9 but no evidence of disc protrusion.
MRI Lumbar Spine dated 30 April 2018 reports L5/S1 spondylitic changes with annular tear at L5/S1.
MRI Cervical Spine dated 27 August 2018 shows multilevel degenerative changes but no other findings.”
The MA summarised the injuries and diagnoses as follows:
“This is a woman who suffered an assault on two occasions while working as a disability support worker. She has sustained soft tissue injuries to the neck, back and both shoulders.
There was no evidence of any exaggeration or illness behaviour on the patient’s part.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA replied “No”.
The MA assessed total WPI at 15%.
He explained the reasons for his assessment as follows:
“Cervical Spine.
Ms Clarke demonstrates a full range of movement with tenderness in the right paraspinal muscles but no other clinical signs and no evidence of referral of symptoms into the upper extremities nor is there any evidence of upper limb radiculopathy. I would therefore place the patient in DRE Category I which is a 0% WPI.
Upper Extremities (shoulders)
The shoulders are assessed using the range of movement model and I confirm that the patient has an equal range of movement in both shoulders on my examination today. The patient is assessed as a 4% WPI for each upper extremity.
Lumbar Spine
Ms Clarke is noted to have an asymmetrical range of movement and she has non-verifiable radicular complaints in the right leg but no evidence of radiculopathy, and I would therefore place her in DRE Category II which is a 5% WPI.
Ms Clarke can self-care but has difficulty with inside and outside activities and an allowance of 2% is made for the impact of her lumbar spine injury on the activities of daily living giving her a 7% WPI.”
He then turned to consider the other medical opinions and said:
“Report of Dr Brian Stephenson dated 29 January 2021 – Dr Stephenson obtains a similar history to what I have obtained today. However, he assesses the patient as DRE Category II for the cervical spine which I did not find. I agree with his findings for the lumbar spine being DRE Category II. However, the patient’s range of movement in the shoulders has obviously improved since he examined her.
Report of Dr Stephen Rimmer dated 27 April 2021 – Dr Rimmer reports a slightly restricted range of movement in the neck which I did not find. He reports a near normal range of movement in both shoulders. I agree with him that the patient had the same range of movement in both shoulders but it was somewhat more restricted than what he reports and I agree with his findings in the lumbar spine. He therefore assesses the musculoskeletal strain to the cervical spine, lumbar spine and left and right shoulders and takes the view that they have resolved which was not what I found today.”
The appellant makes the following submissions:
(a) the MA’s decision to not apply a s 323 deduction to his assessments of the lumbar spine was misconceived and inconsistent with the available evidence;
(b)    an MRI of the lumbar spine dated 30 April 2018 found spondylotic change at L5/S1 with posterior annular tear…the MA refers to this …Despite having referred to the findings, the MA does not apply a deduction nor does he provide a reason for not doing so;
(c)    an X-ray of the thoracolumbar spine and coccyx dated 8 July 2016 found mild anterior wedging of approximately T8 vertebra, suggestive of a compression fracture. Facet joint arthropathy was noted in the lower lumbar spine;
(d)    the radiological report dated 8 July 2016 formed part of evidence and was specifically referenced in the Reply schedule under the heading ‘previous treating evidence’ – in an effort to draw the MA’s attention to the issue of deduction;
(e)    the MA at page 4 of the MAC does not refer to the X-ray of the thoracolumbar spine and coccyx dated 8 July 2016. Instead, the MA relies on the later scans;
(f) the MA has failed to take these reports into consideration when addressing the issue of deduction. As a result, the MA has erred and failed to apply a deduction in accordance with s 323;
(g)    the MA stated “no” in response to whether a proportion of impairment is due to a previous injury, pre-existing condition, or abnormality. The MA has not provided reasons for holding that opinion;
(h)    the MA has recorded an inconsistent history regarding the worker’s prior lower back and shoulder complaints. At page 2 of the MAC, the worker is recorded as telling the MA she had made no previous injuries or claims. However, she has a previous claim for injury to her thoracic spine, lumbar spine and bilateral shoulders against a date of injury of 25 April 2018. Liability was accepted for this injury;
(i) this is a demonstrable error as the MA’s report is based on incorrect history. This may well affect the MA’s assessment as to a deduction pursuant to s 323 in respect of the lumbar spine primarily and bilateral shoulders to a lesser extent;
(j)    the MA applied incorrect criteria and / or made a demonstrable error by incorrectly increasing the base impairment;
(k)    in this case, the MA has assessed 7% WPI which is a combination of 5% WPI for DRE Lumbar Category II in addition to 2% WPI the effects of ADL;
(l)    at page 5 of the MAC, the MA stated the worker can self-care but has difficulty with ‘inside and outside activities’ and an allowance of 2% is made for the impact of her lumbar spine injury on ADL. This is not explained in any detail;
(m)     as to the ‘outside activities’, we understand the worker pays her neighbour to do the lawns and gardens. There is no indication as to whether the worker previously performed this activity alone or whether this arrangement has been in place prior to the injury;
(n)    there is no explanation as to what ‘inside activities’ the worker finds difficult;
(o)    the diagram and explanation at paragraphs 4.34 and 4.35 in the Guidelines provide that 2% WPI is applied in circumstances where the worker is able to manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances;
(p)    the assessment for impairment for ADL for the lumbar spine is not explained in the MAC. We understand the worker’s shoulders are also painful as indicated at page 2 of the MAC. The MA has not explained whether it is the impact of the worker’s shoulder pathology which interferes with her ability to carry out her ADL, and
(q)    in circumstances where the MA does not clearly explain whether the lumbar spine or shoulder injury causes the ADL interference, the appellant submits that the MA has incorrectly applied an impairment assessment with respect to ADL.
In response to the appeal, the respondent submits as follows:
(a)    clearly the MA took a history in paragraph 4 of his MAC that “there have been three previous episodes of back pain all of which had resolved with no residual symptoms”. Clearly on the test set out in Pereira v SiemensLtd [2015] NSWSC 1133 there should be no s 323 deduction in these circumstances;
(b)    when the MA made his finding in paragraph 8(e) of “no pre-existing condition” he was making a finding in accordance with Pereira that there was no contribution to his finding of “no pre-existing condition” contributing to the WPI he found on the basis of the history he took, examination of the worker and consideration of the Scans provided to him;
(c)    there is no evidence to contradict the finding of no residual symptoms from any of the episodes of back pain referred to in paragraph 6 of the MAC;
(d)    the description on page 5 of the MAC of the restriction in activities that have given rise to the application of 2% ADLs are set out in the context of the complained of symptoms in paragraph 4 under “Present Symptoms” namely “difficulty carrying out physical activities” and at the end of paragraph 4 “Unable to do mowing or gardening”, and
(e)    the inability to mow lawns and garden satisfies paragraphs 4.34 and 4.35 of the guidelines on awarding 2% ADL’s.
We agree with the thrust of the appellant’s submissions for reasons that follow.
It seems clear to us that the MA has based his opinion for no s 323 deduction on the fact that according to the history he obtained, even though Ms Clarke had had “three previous episodes of back pain” he was also told that these “had settled and while she had lost time for work, no specific claim had been made”.
However, on reading through the various reports in the material we have, there is evidence of significant previous problems with Ms Clarke’s lumbar spine, all of which were prior to her injury on 3 May 2019.
For example, a report of Lauren Studdert (physiotherapist) dated 27 April 2018, noted that the presenting problem was recurrent cervico-lumbar pain and that:
“please review Catherine as physiotherapy treatment has not been successful in managing her spinal pain for this episode – previous attended treatment with good outcome. I am concerned regarding her lack of progress and she may benefit from lumbo-diagnostic scanning.”
There is an MRI dated 30 April 2018 of the lumbar spine which notes in the conclusion “L5/S1 spondylitic change with a posterior annular tear”. In our view, it is unlikely that an MRI of the lumbar spine would have been ordered unless there were significant symptoms present.
There are consultation notes from her general practitioner, Dr M Abeyarante on 25 July 2018 noting that she presented on Anzac Day 2018 with thoracic, lumbar and shoulder blade pain, and had been seen by a general practitioner and had been off work for three months. The doctor goes on to note under the heading of “Past History”, “…back pain on and off since age 30…worsening symptoms since 2016…partner does most of the housework and cooks/laundry”.
There is a further letter from the physiotherapist dated 2 August 2018 noting that she has re-examined Ms Clarke “…who was suffering from chronic lower back pain. This week Catherine experienced an exacerbation of pain. She reported experiencing severe stabbing pain and lumbar spasm at night and worsening pain and stiffness in the morning”.
Another general practitioner consultation by Dr S Pathirana on 13 August 2018 notes “…reported still some pain in lower and upper back…pain…states pretty bad and affects sleeping”.
We also note a report of Dr B Singh (orthopaedic and spine surgeon) of 27 November 2019 who notes in the letter to the referring general practitioner: “Thank you for referring this pleasant lady who has had neck and lower back pain for several years following repetitive bending and lifting in her job which involves disability care. She has lower back pain…”.
It would seem then that the MA has noted the reports of Drs Stephenson and Rimmer, but has not had a careful look at all the other medical evidence which was before him.
In our view then, in light of the evidence which we have referred to above, we agree that a deduction under s 323 is appropriate.
We are however mindful of the fact that Ms Clarke was working in her usual capacity at the time of the injury on 3 May 2019 despite the many episodes of prior symptoms particularly in the lumbar spine.
In these circumstances, we are satisfied that a deduction of one-tenth is appropriate. This leaves a figure of 6% WPI for the lumbar spine.
As regards the issue of ADL’s, we agree with the appellant that the MA should have been more specific with regard to the restrictions on “inside activities”.
Having said that, we also note that the MA at page 5 of the MAC did say: “Ms Clarke can self-care but has difficulty with inside and outside activities".
He also stated: “She has difficulty carrying out physical activities”.
In our view, this would certainly allow for 2% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 July 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W2994/22
Applicant:	Catherine Clarke
Respondent:	Cerebral Palsy Alliance Australia

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 Neil Berry and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1. Cervical Spine	3/5/2019	Chapter 15 Page 392 Table 15-5 DRE Category I	0%	0	0%
2. Right Upper Extremity	3/5/2019	Chapter 16 Please see the enclosed worksheet	4%	0	4%
3. Left Upper Extremity	3/5/2019	Chapter 16 Please see the enclosed worksheet	4%	0	4%
4. Lumbar Spine/ Activities of daily living	3/5/2019	Chapter 4 Page 28 Paragraph 4.34 & 4.35	Chapter 15 Page 384 Table 15-3 DRE Category II	7%	1/10th	6%
Total % WPI (the Combined Table values of all sub-totals)					14%

[2022] NSWPICMP 412

21 October 2022