Coles Group Limited v Malouf
[2023] NSWPICMP 53
•22 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Coles Group Limited v Malouf [2023] NSWPICMP 53 |
| APPELLANT: | Coles Group Limited |
| RESPONDENT: | Anthony Malouf |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 22 February 2023 |
CATCHWORDS: | wORKERS cOMPENSATION -Workplace Injury Management and Workers Compensation Act 1998; employer alleges error by Medical Assessor (MA) in assessing abnormal motion of the left upper extremity for a neurological condition contrary to Chapter 2.9 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; in assessing a grade III deficit for injury to the right upper extremity; in failing to record, consider, or make a deduction for a pre-existing condition of carpal tunnel syndrome pursuant to section 323; Held – as the impairment of the worker’s left upper extremity resulted solely from a neurological injury the MA erred in assessing both loss of motion and neurological impairment; there was no evidence of error or incorrect criteria in the methodology used to assess a grade III deficit of the right upper extremity in accordance with Table 16-15 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed; there was no satisfactory evidence of a previous injury or pre-existing condition to permit a deduction being made pursuant to section 323; Medical Assessment Certificate (MAC) revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 November 2022, Coles Group Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 17 October 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,
· 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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the 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
Anthony Malouf (the respondent) was employed by the appellant as a process worker. On 29 October 2019, while at work, his foot became caught in an electrical cord causing him to fall. He says that he landed on the concrete floor “on both hands, impacting my wrists and hands.”
He was initially treated by the appellant’s nurse. However, at the conclusion of the shift he attended Dr Theocharous, his general practitioner, who treated him with medication. On the following day, he underwent an X-ray which demonstrated a right triquetral avulsion fracture. The fracture was treated with plaster cast immobilisation.
On removal of the plaster, the respondent complained of tingling and numbness in both hands, worse on the left than the right and constant dysaesthesia in the fingertips.
When these symptoms did not improve, Dr Theocharous referred the respondent to Dr David Yee, a hand and wrist surgeon. Dr Yee examined the respondent on 4 February 2020. He expressed the opinion that the respondent had severe carpal tunnel syndrome on the left side and moderately severe carpal tunnel syndrome on the right side. He recommended surgery.
Dr Yee performed a left carpal tunnel release on 22 May 2020 and a right carpal tunnel release on 31 July 2020. As there were continuing symptoms in the respondent’s left hand, he underwent a revision of left carpal tunnel release in December 2020. Unfortunately, this did not lead to an amelioration of his symptoms.
On 26 May 2021, Dr Yee noted that the nerve conduction study performed following the last operation demonstrated some improvement but was “not back to normal”. He did not think that further surgery would be of benefit. He suggested a second opinion. For that purpose, the applicant was referred to another hand surgeon, Dr Stewart.
After considering the results of an ultrasound, which demonstrated swelling of the median nerve bilaterally in the carpal tunnel, Dr Stewart expressed the opinion that the respondent had nothing to gain from further surgical decompression. He thought that it might be necessary “to think more in terms of activity modification”.
On 13 December 2021, the respondent saw Dr Gregory McGroder, an occupational physician at the request of his solicitor. Dr McGroder diagnosed injury to both median nerves resulting from direct trauma in the fall of 29 October 2019. He expressed the opinion that the appellant suffered 27% whole person impairment (WPI) as a result of the injury, although there is clearly an error in his calculations. He assessed the respondent as 5% upper extremity impairment (UEI) for the right and 6% UEI for the left for impairment of range of movement. He assessed the sensory loss at 10% UEI on the right. On the left hand, he assessed sensory loss at 20% UEI and a further 5%UEI for a motor deficit.
Dr Keller, an occupational physician, saw the respondent at the request of the appellant on 27 April 2022 and prepared a report of 3 May 2022. On examination, he found altered sensation of the left hand consistent with carpal tunnel syndrome. He found no current signs of carpal tunnel syndrome in the right hand. He recorded that:
“there was minor tenderness distal to the right ulnar styloid consistent with a healed triquetrum fracture and some mild persisting impingement.”
Dr Keller noted that there was a complaint of left carpal tunnel syndrome in the medical record on 19 June 2016. He expressed the opinion that it was not clear that the carpal tunnel syndrome related to the fall in October 2019.He assessed 0% WPI in the right upper extremity and 3% in the left.
By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The difference of opinion as to WPI between Dr McGroder and Dr Keller gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the matter to Dr Anderson. It is from his MAC that the appellant brings this appeal.
PRELIMINARY REVIEW
The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted the appellant’s application that the worker be re-examined by a member of the panel. However, as the panel only found one discrete error in the assessment, which was readily rectifiable without a further examination, it concluded that a further medical examination was inappropriate. The case law instructs that a further medical examination should only be performed after a finding of error in the MAC or the admission of additional relevant information.
EVIDENCE
The appeal panel has before it all of the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.
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 made errors in assessing both upper extremities and in failing to make a deduction pursuant to s 323.
First, the appellant argued that the MA erred in assessing abnormal motion of the left upper extremity contrary to paragraph 2.9 of the Guidelines.
Secondly, the MA erred in assessing a Grade III deficit for the right upper extremity in accordance with Table 16-10 of AMA 5.
Thirdly, the MA failed to record or consider or make a deduction for a pre-existing condition pursuant to s 323.
In respect of the left wrist, the appellant submitted that there was no evidence of injury to the wrist other than a peripheral nerve injury. Thus, assessment of the left upper extremity should be limited to the assessment of neurological dysfunction in accordance with s 16-5 of AMA 5.
In respect of the right upper extremity, the appellant submitted that the MA had failed to provide reasons as to why he assessed a Grade III peripheral nerve deficit. It suggests that the MA did not utilise the correct table for assessing sensory and pain deficits resulting from peripheral nerve injury. It also submitted that the neurological dysfunction of the right wrist was “significantly less” than the left wrist and “is more appropriately assessed” in accordance with a Grade II deficit (Table 16-10 AMA 5).
In respect of the alleged error in the application of s 323, the appellant referred to Dr Keller’s opinion that it was likely that the respondent suffered from a pre-existing condition of the median nerve at left the wrist. It relied on a referral from Dr Theocharous, which it submitted was dated 17 February 2019. In that referral to Dr Yee, the hand surgeon, Dr Theocharous referred to “bilateral carpal tunnel”.
The appellant also submitted that In the extracts from the clinical notes of Dr Theocharous there was also reference to carpal tunnel syndrome on 19 September 2019. The appellant continued:
“The MA’s assessment of the applicant’s pre-existing condition was based on a demonstrable error by failing to give proper consideration to the material before him, and by failing to elucidate a history from the respondent to confirm or deny a condition on direct questioning, after having regard to the contemporaneous evidence in the material before the MA.”
In respect of the left upper extremity, the respondent submitted that the appellant had not “accurately reproduced what is recorded at clause 2.9 of the Guidelines”. Chapters 2.9 and 2.10 when read together permitted the use of Tables 16-10 and 16-11. Thus:
“It is unambiguous that the calculation of impairment in the specific case included an analysis and evaluation of the range of motion”.
While the respondent conceded that the MA may not have referred to the correct part of AMA 5 in assessing the left upper extremity, the evaluative task he performed was consistent with the Guidelines and the alleged error did not make “a difference to the medical assessment”.
In respect of the assessment of the right upper extremity, the respondent submitted that it was quite plain that the MA did not utilise Table 16-03 of AMA 5 when determining the deficit in the right upper extremity. Rather, he used that table to convert right upper extremity impairment to WPI. The respondent continued that:
“The history and matters noted by the medical assessor and recorded at pages 2, 3 and 4 of the MAC, in addition to the passages quoted by the appellant at paragraph 19 of its submissions, adequately demonstrates and substantiates the medical assessor’s determination of a Grade III deficit.”
In these circumstances, the “actual path” of the MA’s reasoning was quite clear.
In respect of the application of s 323, the respondent contended that the MA had clearly considered Dr Keller’s opinion and on his consideration of the evidence “could find no history of pre-existing condition”. Further, contrary to the instruction of Schmit J in Cole v Wenaline Pty Ltd[1] the appellant had failed to have regard to the fact that determining an appropriate deduction pursuant to s 323 was an exercise of “medical judgement, knowledge and experience”
[1] [2010] NSWSC 526.
The respondent submitted that there was no reason to doubt that the MA obtained a history from him relevant to all of the issues in the case including the presence of any relevant pre-existing condition.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales.[2] The Judge considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in its application.
[2] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan,[3] 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.
[3] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[4] An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
[4] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia partners Pty Ltd v Kocak[5] that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor 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 form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[5] [2013] 252 CLR 80.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd.[6]
[6] [2014] NSWSC 1344 (26 September 2014).
Chapters 2.9 and 2.10 of the Guidelines are as follows:
“2.9 If an upper extremity impairment results solely from a peripheral nerve injury, the assessor should not also evaluate impairment(s) from AMA5 Section 16.4 ‘Abnormal motion’ (pp 450–79) for that upper extremity. AMA5 Section 16.5 should be used for evaluating such impairments.
For evaluating peripheral nerve lesions, use AMA5 Table 16-15 (p 492) together with AMA5 tables 16-10 and 16-11 (pp 482 and 484).
The assessment of carpal tunnel syndrome post-operatively is undertaken in the same way as assessment without operation.
2.10 When applying AMA5 tables 16-10 (p 482) and 16-11 (pp 482 and 484) the examiner must use clinical judgement to estimate the appropriate percentage within the range of values shown for each severity grade. The maximum value is not applied automatically.”
In the opinion of the panel, the impairment of the respondent’s left upper extremity “results solely” from a peripheral nerve injury. There is no evidence that the incident on 29 October 2019 caused injury to the respondent’s right wrist and hand other than compression of the median nerve at the wrist. Equally, there is no evidence of any persisting deficit other than at the median nerve.
In those circumstances, it was not permissible for the MA to utilise AMA 5 s 16-4 ‘Abnormal Motion’ to evaluate left upper extremity impairment. It is quite clear that the MA did utilise AMA 5 s16.4 in determining range of movement of both wrists. He did this by reference to figures 16-28 and 16-29. He stated that the UEI arrived at by this means was 4% on the right and 2% on the left. He continued:
“These figures are combined to the respective neurological dysfunctions of upper extremity impairment which gives 19% UEI on the left and 10% on the right.”
In combining the neurological dysfunction calculated in accordance with AMA 5 s16-5 with UEI for abnormal motion the MA applied incorrect criteria in assessing the left upper extremity. The error led to an incorrect assessment of UEI and WPI on the left side. Rather than the figures recorded by the MA, he should have assessed 17% UEI and 10% WPI on the left side.
The panel, however, is unable to discern any further error in the MAC.
Right upper extremity
It is quite clear that the MA applied AMA 5 ss 16.4 and 16.5 in evaluating impairment of the right upper extremity. The appellant, however, submits that the MA has failed to provide reasons as to how he determined a Grade III peripheral nerve deficit. The panel does not accept that submission.
In reaching his conclusion, the MA clearly followed the methodology identified in AMA 5 and the Guidelines. In accordance with Table 16-15 of AMA 5, he identified that the nerve below the mid forearm was the affected area of the right upper extremity and that this attracted a maximum UEI impairment rating of 39% maximum. It was then necessary for him to determine the appropriate percentage of the maximum in this case. Chapter 2.10 of the Guidelines required him to “estimate the appropriate percentage within the range of values shown for each severity grade” by using his clinical judgement. (Panel’s italics.)
The MA estimated that in the case of the right hand, 20% of the maximum was appropriate. This reflected his view that the sensory impairment in the right hand/wrist was considerably less than on the left side. He reached this conclusion after carrying out a thorough neurological examination of the respondent’s wrists. There is no evidence of error in that examination and no evidence that he applied incorrect criteria in exercising his clinical judgment in estimating the appropriate values. Contrary to the appellant’s submission, he did not utilise Table 16-3 to assess impairment. Rather, he used it to convert UEI to WPI.
The actual path by which the MA arrived at his assessment of the impairment of the right wrist is quite transparent. Thus, he has complied with the obligation to provide reasons in accordance with the instruction in Wingfoot.
Section 323
In addressing pre-existing conditions, the MA recorded the following:
“I could find no history of any pre-existing conditions. I noted in the clinical literature that a specialist occupational physician, Dr Andrew Keller, has advised of left-sided carpal tunnel syndrome in June 2016. I was unable to find any details about this.”
The appellant relies on two entries in the respondent’s clinical record to raise the issue of a pre-existing condition. It refers to a referral from Dr Theocharous dated 17 February 2019. The panel considered this document in the context of the entirety of the medical evidence. It concluded that it was more likely that the referral is dated 17 December 2019 i.e. after the respondent’s injury. There is no evidence of the respondent seeing Dr Yee prior to the injury. At the very least, the date of the referral is ambiguous. In those circumstances, the referral does not assist the appellant’s submission.
On the other hand, it is likely that the entry in Dr Theocharous’ notes of 19 September 2016 does refer to carpal tunnel syndrome on the left side as suggested by Dr Keller. However, the panel considered that the entry was of doubtful value when assessing a pre-existing condition of the left upper extremity. The panel was unable to find an entry on 19 September 2019 in the notes and assumed that the reference to this date in the appellant’s submissions may have been a typographical error.
It is not evident that the respondent underwent the nerve conduction studies suggested by the note. Thus, there is no confirmatory evidence that he suffered from median nerve compression at the left wrist in 2016. Assuming, however, that the doctor’s impression of carpal tunnel syndrome was correct, there is no suggestion in the notes that the respondent worker complained of symptoms in his left all wrist over the next three years. If there was median nerve compression in 2016, it may well have been transitory and of no causal significance to the development of the condition after the fall at work.
It must be borne in mind that s 323 is a disentitling provision. While the issue of onus is rarely of importance in a medical appeal, the principle enunciated a long time ago in Watts v Rake[7] and Purkess v Crittenden[8] had application to an evaluation under s 323. That these principles are relevant to the assessment of lump sum compensation under the Workers Compensation Legislation is also of ancient lineage: see Sadler v Commissioner of Railways (NSW)[9] it is necessary for the appellant to point to appropriate evidence to support a deduction.
[7] (1960) 108 CLR 158.
[8] 114 CLR 164.
[9] (1969) 123 CLR 216.
In the opinion of the panel, the evidence available is insufficient to establish a pre-existing condition that contributed to the permanent impairment in the respondent’s upper extremity. Dr Keller’s opinion is largely based on supposition. The respondent has consistently denied symptoms in his left wrist before the injury. The case law establishes that it is inappropriate to make a deduction pursuant to s 323 on this basis.
Of course, the MA considered Dr Keller’s opinion, including his reference to the note of Dr Theocharous in “June 2016”. Plainly, he could find no entry of that date. Neither could the panel. The entry on 16 September 2016, is difficult to find and more difficult to interpret. If the MA erred in not finding it, that error was of no consequence as it was not open to him to conclude that the respondent suffered a pre-existing condition of the left upper extremity which contributed to his current impairment on the basis of that evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 October 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: | W4536/22 |
Applicant: | Anthony Malouf |
Respondent: | Coles Group Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Right upper extremity (wrist) | 29/10/19 | Chap 2, P 10 | P492 T 16-05 P482 T16.10 P439 T16-03 P467 F16-28 P469 F16-31 | 5 | 0 | 5 |
| Left upper extremity (wrist) | 29/10/19 | Chap 2, P 10 | P492 | 10 | 0 | 10 |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
7
0