Chahine v Parmalat Australia Limited
[2021] NSWPICMP 23
•16 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Chahine v Parmalat Australia Limited [2021] NSWPICMP 23 |
| APPELLANT: | Chahine Chahine |
| RESPONDENT: | Parmalat Australia Limited |
| APPEAL PANEL: | Ms Deborah Moore Dr Brian Noll Dr Mark Burns |
| DATE OF DECISION: | 16 March 2021 |
CATCHWORDS: | WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) erred in interpreting AMA 5 and the Guidelines as prohibiting the combination of impairment due to subluxation with impairment due to impaired range of motion in the shoulder; Held- the Panel agreed; the MA erred in using Table 16-22 in assessing impairment in the shoulder; Table 16-22 (on page 501) does not apply to the shoulders; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 November 2020 Chahine Chahine lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 November 2020.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 the appeal.
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.
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 Medical Assessor (MA) has erred in interpreting AMA 5 and the Guidelines as prohibiting the combination of impairment due to subluxation with impairment due to impaired range of motion in the shoulder.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the Left upper extremity (shoulder) resulting from an injury on 16 November 2018.
Given the limited issue on appeal, it is not necessary to set out in detail the history and various findings made by the MA.
After taking a history of the injury, the appellant’s present symptoms and treatment, and the impact of his injury on his activities of daily living, the MA then set out his findings on physical examination as follows:
“The right shoulder had no frank adhesive capsulitis. The active range of motion to repeated testing was:
Movement
(right shoulder)
Range º Upper extremity
impairment %
Flexion 180 0 Extension 50 0 Abduction 170 0 Adduction 40 0 Internal rotation 70 1 External rotation 70 0
1% impairment upper extremity.
The left shoulder had a 15cm well-healed, non-adherent surgical scar anteriorly. It was quite prominent. There was severe adhesive capsulitis present. The active range of motion to serial testing was:
| Movement (left shoulder) | Range º | Upper extremity impairment % |
| Flexion | 110 | 5 |
| Extension | 10 | 2 |
| Abduction | 120 | 3 |
| Adduction | 20 | 1 |
| Internal rotation | 40 | 3 |
| External rotation | 0 | 2 |
16% impairment upper extremity.
When viewed from behind, there was no marked asymmetry nor obvious muscle wasting around either shoulder girdle. The deltoid nerves had normal motor and sensory function each side.
Forearm circumference 12cm proximal to the wrist crease was 28cm each side.
Whilst the deep tendon reflexes are largely absent in the upper extremities, the motor strength of the major muscle groups is normal, and sensory testing to light touch was normal in each arm.
He was able to sublux the gleno-humeral joint, inferiorly. This was voluntary and could be readily palpated. The head of the humerus popped back into the glenoid spontaneously. Apprehension tests for inferior instability were positive but tests for posterior instability were clearly negative.
All measurements were made using a Goniometre and tape measure where appropriate.”
The MA assessed 8% WPI of the left upper extremity (shoulder). He then said:
“In making that assessment I have taken account of the following matters:-
There is clearly a history of injury and surgery pre-dating the subject accident. He gives a good history of progressive inhibition of normal strength and power affecting the left shoulder in his work environment…
The left upper extremity is assessed as per the Guidelines of Chapter 16, and the associated Chapters 1 through to 10.
Further, the current Workcover Guidelines were noted.
These Guidelines direct the Assessor to utilise the methodology that produces the greatest WPI assessment.
In addition, reference is made to Chapter 16.7 on page 498 and Section 16.7a of page 499 of the Guides which direct the Assessor to avoid duplication of impairments.
On this occasion I utilised the active range of motion methodology which, produced a total of 16% impairment of the upper extremity with a deduction of 1% to acknowledge the slight restriction of external rotation of the right shoulder producing a subtotal of 15% which equates to 9%WPI. I have made a deduction of 1/10th under Section 323 to acknowledge the previous history of injury, surgery, and subsequent treatment during his football career. In addition, the MRI scans and CT scans of the left shoulder of February 2019 and July 2019 respectively, show early arthritis in the glenohumeral joint. This degree of arthritis would have taken a number of years to accumulate and would have been present, to a minor degree, prior to the injury of November 2018. This, together with the history, is taken into account when making a deduction of 1/10th under Section 323.
I then also considered the subluxation of the glenohumeral joint with reference to Table 16.22 which allocates a 20% impairment of the joint which, when assessed under Table 16.18 of a maximum of 36%WPI produces a total of 7.2% impairment of the left upper extremity. Again, a deduction of 1/10th under Section 323 concludes for a production of 6%WPI.
On this occasion, noting the directions of the Guidelines and the AMA 5 Guides as stated, I have chosen the active range of motion methodology to produce the greatest WPI.”
The MA then turned to consider the other medical opinions, stating as follows:
“I have read a copy of the report of Dr James Powell dated 7 July 2020. The history of injury, treatment and subsequent progress is recorded. The examination refers to the upper extremities as being neurologically intact. The range of motion of the left shoulder is quantified but not qualified. Dr Powell has the diagnosis of a dislocation or instability episode, superimposed upon preexisting arthritis. Dr Powell’s assessment utilises range of motion criteria which are quantified but not qualified. Dr Powell concludes 17% impairment upper extremity. He acknowledges Section 323 and makes a deduction of one half to acknowledge the previous history…
Dr Powell then utilises Table 16.22 to assess instability of the shoulder and he concludes 12% impairment upper extremity. He makes no deduction under Section 323 and then combines it with his previous assessment concluding 20%impairment upper extremity converting to 12%WPI.
The previous comments in relation to the concerns about combing two methodologies should be noted.
I have read a copy of the report of Dr Habib dated 8 February 2020…
Dr Habib utilises instability of the gleno-humeral joint as an assessment process and then adds it to the active range of motion assessment to conclude a left upper extremity impairment of 27%.
The current Guidelines direct the Assessor to utilise that methodology which produces the greatest impairment.
As previously noted, it should be noted that under Section 16.7, page 498 of the Guides and the subsequent paragraphs on Chapter 16.7a, page 499, expressly directs the Assessor to have a clear understanding of the patho-mechanics in relation to an overlap and thereby avoid duplication of impairment ratings. This is further addressed in paragraph 2.11 on page 11 of the current Guidelines as well as paragraph 2.12 also on page 11 of the Guidelines.
His examination processes are not in line with AMA 5 Guidelines on the basis that his range of motion is quantified but not qualified.”
The appellant’s submissions may be summarised as follows:
(a) The MA has erred in interpreting AMA5 and the Guidelines as prohibiting the combination of impairment due to subluxation with impairment due to impaired range of motion in the shoulder.
(b) The MA erred in using Table 16-22 which is not applicable to the shoulder. The qualified medicolegal assessors have erred in the same manner, however the MA is still required to apply AMA5 and the Guidelines properly .
(c) Given that the MA has incorrectly used Table 16-22, any argument that the MA properly applied clinical judgment in ensuring there was no overlap of pathomechanics cannot be made.
(d) Table 16-26 permits the combination of impairment due to subluxation with impaired range of motion.
(e) The MA ought to have combined subluxation in the shoulder with impaired range of motion.
We agree with the appellant’s submissions for reasons that follow.
As the appellant points out, pages 498 and 499 of AMA5 can be summarised as follows:
“In the digits, wrist and elbow subluxation including persistent joint subluxation cannot be combined with impairment in range of motion. This methodology does not apply to the shoulder.
Joint instability impairment values can be combined with impairment due to range of motion.”
The MA in our view has erred in using Table 16-22 in assessing impairment in the shoulder. Table 16-22 (on page 501) does not apply to the shoulders.
The MA indicated that his examination findings included evidence of left shoulder subluxation.
Shoulder subluxation is dealt with in AMA 5 in Table 16 – 26 (page 505).
AMA 5 specifically indicates that shoulder instability can be combined with loss of range of movement and that Table 16-22 is not applicable to the shoulder. Page 501 of AMA 5 in the section ‘Persistent Joint Subluxation or Dislocation’ indicates that: “Instability and translocation of the wrist and shoulder joints are evaluated according to methods described on pages 502 and 503 (wrist and shoulder respectively).”
AMA 5 page 504 (continuing from page 503) states with regard to impairment due to shoulder instability that “… This value may be combined only with impairment due to decreased motion.”
Loss of range of movement and subluxation of the shoulder should therefore be combined.
The example provided under Table 16-26 is relevant to this claim. In this example, subluxation is combined with impaired range of motion.
In short, there is nothing in AMA 5 which prohibits combining loss of range of movement with shoulder instability.
The MA found a restricted range of left shoulder movement (16% upper extremity impairment) (UEI) and a slightly restricted range of right shoulder movement (1% UEI). In the absence of any evidence of abnormality of the right shoulder the MA appropriately made a 1% deduction from 16% giving a total of 15% upper extremity impairment which converts to 9% WPI.
The MA found a total of 15% UEI due to decreased left shoulder motion. This should be combined with 12% UEI due to the subluxation giving a total of 25% UEI which is equivalent to 15% WPI.
That 15% WPI less the 1/10th deduction converts to 13.5 %WPI rounded to 14% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 November 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Peter Giblin 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.Left upper extremity (shoulder) | 16 November 2018 | Chapter 2 Page 13 | Chapter 16 | 15% | 1/10th | 14% |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
Deborah Moore
Member
Dr Brian Noll
Medical Assessor
Dr Mark Burns
Medical Assessor
16 March 2021
0