Cvetkovska v State of New South Wales (Sydney Local Health District)

Case •

[2021] NSWPICMP 17

•

12 March 2021
DETERMINATION OF APPEAL PANEL
CITATION: Cvetkovska v State of New South Wales (Sydney Local Health District) [2021] NSWPICMP 17
APPELLANT: Zora Cvetkovska
RESPONDENT: State of New South Wales (Sydney Local Health District)
APPEAL PANEL: Mr Marshal Douglas
Dr Roger Pillemer
Dr Margaret Gibson
DATE OF DECISION: 12 March 2021
CATCHWORDS:

WORKERS COMPENSATION- Appellant worker referred for assessment of WPI with respect to “body parts” described in referral as “left upper extremity (left shoulder, carpal tunnel syndrome and trigger finger left 4th and 5th fingers and left wrist)”; appellant’s appeal confined to AMS’s assessment of impairment of left 4th and 5th fingers; AMS did not observe evidence of trigger finger during examination; appellant submitted that AMS was not limited to the pathology described, namely trigger finger and AMS had fallen into error “by reading too narrowly the matters referred for assessment”; Held- Appeal Panel held that AMS was required to give MAC that responded to the matters referred for assessment; MAC upheld.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 21 December 2020 Zora Cvetkovska (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr David Crocker, who was then an Approved Medical Specialist of the former Workers Compensation Commission, and, who issued a Medical Assessment Certificate (MAC) on 1 December 2020.

  2. The Appeal Panel observes that on 28 February 2021 the Workers Compensation Commission (WCC) ceased to be, and the Personal Injury Commission was established. In accordance with changes set out in Schedule 6 of the Personal Injury Commission Act 2020, an Approved Medical Specialist of the WCC is now known as a Medical Assessor, and an Arbitrator is now known as a member.  For the sake of clarification the Appeal Panel notes that it will refer to Dr David Crocker using the acronym AMS.

  3. 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.

  4. 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.

  5. 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.

  6. 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 (AAMS 5).

RELEVANT FACTUAL BACKGROUND

  1. The appellant is employed by the State of New South Wales – Sydney Local Health District (the respondent) working as a full time ward assistant at the Royal Prince Alfred Hospital.

  2. On 21 December 2017 she suffered an injury whilst standing atop of a 3 step ladder lifting a box above her head in a storeroom.  She went to grab the box, she lost control of it and it started to fall towards the ground.  She attempted to catch it.  She then felt pressure in her left shoulder and sharp pain immediately after.  Her pain subsequently increased over time.  Investigations ultimately revealed a rotator cuff tear.  She had surgery on 3 August 2018 to repair that tear as well as acromioplasty.  She also developed swelling and blue discoloration of her left forearm and hand.  Nerve conduction studies demonstrated changes consistent with bilateral carpal tunnel syndrome, being more marked on the left side.  She also experienced triggering of her left little (5th) finger and subsequently her left ring (4th) finger.

  3. On 16 January 2020, her solicitor wrote to the respondent’s insurer advising it that the appellant claimed compensation for 19% whole person impairment (WPI) resulting from the injury she suffered on 21 December 2017.  Her solicitors enclosed with that letter a report dated 5 November 2019 of Orthopaedic Surgeon Dr John Brian Stephenson who had examined the appellant on 5 November 2019 at the request of her solicitors and who had assessed her to have 19% WPI from her injury.

  4. The respondent’s solicitors organised for the appellant to be examined by Occupational Physician Dr Robin Chase on 13 March 2020.  Dr Chase reported to the respondent’s solicitors on 19 March 2020 that he had assessed the appellant to have 5% WPI from her injury.  On 9 April 2020, the respondent’s insurer, relying on the report of Dr Chase, wrote to the appellant notifying her under s78 of the 1998 Act that it disputed liability to pay her compensation on the basis that her permanent impairment from her injury was 5% WPI which did not exceed the statutory threshold of 10% imposed by s66(1) of the Workers Compensation Act1987 (the 1987 Act) for her to be entitled to compensation for permanent impairment. 

  5. The appellant’s solicitors then lodged with the Commission in September 2020 an application for a determination of her claim for compensation.  In the application the appellant filed to initiate proceedings in the Commission she described her injuries in these terms:

    “The applicant was working on a 3 step ladder in a small storeroom on 21 December 2017.  She suffered injury to her left shoulder while attempting to catch a box which was falling from an extremely high height.  She later developed carpal tunnel syndrome and trigger finger in both her left and 4th fingers.”

  6. The matter was referred to Arbitrator Mr Philip Young who on 29 December 2020, with the consent of the parties, remitted the matter to the Registrar so that it could be referred to an approved medical specialist “to determine the extent of the [appellant’s] whole person impairment, if any, which results from injury to the [appellant’s] left upper extremity, left shoulder, carpal tunnel syndrome and trigger finger left, 4th and 5th fingers and left wrist which occurred on 21 December 2017”. 

  7. On 8 October 2020 an amended referral was issued to the AMS by a delegate of the Registrar that required the AMS to assess the following medical disputes:

    “MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
     the degree of permanent impairment of the worker as a result of an injury
    (s319(c))
     whether any proportion of permanent impairment is due to any previous injury
    or pre-existing condition or abnormality, and the extent of that proportion
    (s319(d))
     whether impairment is permanent (s319(f))
     whether the degree of permanent impairment of the injured worker is fully
    ascertainable (s319(g))

    Date of Injury: 21 December 2017

    Body part/s referred: left upper extremity (left shoulder, carpal tunnel
    syndrome and trigger finger left 4th and 5th fingers and left wrist)

    Method of assessment: whole person impairment.”

  8. As mentioned, on 2 December 2020 the AMS provided the MAC in response to that referral.

PRELIMINARY REVIEW

  1. 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.

  2. Based on its preliminary review, the Appeal Panel determined that it would not require the appellant to undergo a further medical examination. This is because for reasons explained below, the Appeal Panel came to the view that neither of the grounds of appeal on which the appellant relied has been established. The Appeal Panel cannot therefore revoke the MAC, and its power to require the appellant to be re-examined is not enlivened.[1]

    [1] See NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.

EVIDENCE

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

MEDICAL ASSESSMENT CERTIFICATE

  1. The appellant, in her appeal against the MAC, takes issue with the AMS’s assessment of her impairment with respect to her 4th and 5th digits of her left hand.  The AMS noted that the appellant had developed triggering of the 4th and 5th fingers of her left hand and that she had decompressive surgery to treat her 5th finger and local injections to treat her 4th finger.  The AMS noted that the appellant reported that her present symptoms included intermittent swelling of her fingers, intermittent numbness affecting her fingers with the exclusion of her thumb, and intermittent triggering of her left ring finger.  

  2. The AMS recorded the following findings from his examination of the appellant’s hands and fingers:

    “A healed longitudinal surgical scar of approximately 2.5cm was noted to be present to the base of the palm of the left hand. There was nil loss of contour. There was some tenderness with palpation to the region.

    Active range of motion was further assessed relating to the 4th and 5th fingers of both hands in a similar manner with maximal findings noted as follows:

Ring Finger Movements Active ROM Measured
Right 		Active ROM Measured
Left

·     MP joint

Flexion

               Extension

·     PIP joint

        Flexion
            Extension

·     DIP joint

Flexion

    Extension

               750

+100

950
00

550
00

850
+50

1000
+20

500
00
Little Finger Movements Active ROM Measured
Right 		Active ROM Measured
Left

·     MP joint

Flexion

               Extension

·     PIP joint

        Flexion
            Extension

·     DIP joint

         Flexion

   Extension

                750

+100

900
00

600
00

800
+100

1000
00

500
00

Nil triggering was apparent with respect to the 4th and 5th fingers of the left hand at the time of the assessment.”

  1. The AMS within worksheets attached to the MAC provided his assessment of the appellant’s hand impairment relating to her restricted range of movement of her 4th and 5th fingers.  Those restrictions equated to 5% upper extremity impairment for both hands.   Because of that, the AMS did not assess the appellant to have any permanent impairment relating to her left 4th and 5th fingers due to her injury.  He provided this explanation for that within Part 8b of the MAC:

    “With respect to the 4th and 5th fingers and taking into account limitation with active range of motion, a 5% hand impairment is accrued. This converts to a 5% upper extremity impairment.

    Individual calculations in this regard are documented in the accompanying worksheet.
    Deductions have been made based upon the findings of the contralateral right hand and what is considered “normal” for Ms Cvetkovska.

    Nil impairment is accrued in relation to the left hand pertaining to any triggering of the 4th and/or 5th fingers. It has been indicated that nil triggering was apparent at the time of the current assessment.”

SUBMISSIONS

  1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

  2. In summary, the appellant submits that the AMS fell into error by failing to include in his assessment of her upper extremity impairment relating to her hand her restricted range of motion of the 4th and 5th digits.  The appellant submits that her injury to the 4th and 5th fingers is not trigger finger and that neither Dr Stephenson nor Dr Chase found triggering of her 4th and 5th fingers during their respective assessments.

  3. The appellant submits that the AMS was not limited to assessing her impairment by the specific pathology or method of assessment that was identified in the referral.  The appellant submits that if the AMS limited his assessment to the pathology of trigger finger that had been identified in the referral, then the AMS fell into error “by reading too narrowly the matters referred for assessment”.

  4. The appellant also submits, in the alternative, that “the matters referred for assessment is [sic: are] ‘read down’ ”, that was an error on the part of her solicitor and in that circumstance the “interest of justice should prevail to prevent an unfair and equitable outcome”.

  5. In reply, the respondent submits that the AMS made no error when assessing the appellant’s impairment relating to her 4th and 5th fingers because, in accordance with the requirement of [2.20] of the Guidelines, when calculating the impairment relating to the appellant’s 4th and 5th fingers the AMS correctly deducted the impairments he found in the appellant’s uninjured right hand from the impairments he found in her injured left hand.  The respondent submits that because the AMS’s assessment was based on the appellant’s restricted range of motion, the AMS did not limit his assessment of the appellant’s impairment relating to her 4th and 5th fingers to that consequent upon trigger finger.

FINDINGS AND REASONS

  1. 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.

  2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

  3. The Appeal Panel rejects the submission that the appellant has made to the effect that an AMS is not limited by the terms of the referral.  Section 325(1) of the 1998 Act requires an AMS to give a certificate as to the matters referred for assessment.  An AMS cannot provide an assessment with respect to a matter outside the terms of the referral.[2]  In this case the referral required the AMS to assess the appellant’s left upper extremity with respect to her left shoulder, carpal tunnel syndrome and trigger finger left 4th and 5th fingers and left wrist.  That is what the AMS did.

    [2] See Aircons Pty Ltd v Registrar of the Workers Compensation CommissionNSW & Anor [2006] NSWSC 322 at [20]-[21]; Gatt v State of New South Wales [2019] NSWSC 451 at [53]-[69]; Skates v Hills Industries Ltd [2020] NSWSC 837 at [51] and [57

  4. The Appeal Panel observes that neither Dr Stephenson nor Dr Chase found triggering of the appellant’s 4th and 5th fingers during their respective examinations of the appellant.  The AMS also did not observe that during his examination of the appellant. 

  5. The Appeal Panel notes that if a person has triggering of a finger and the triggering is corrected there will be no residual loss of range of movement as a consequence of the person having had triggering of a finger.

  6. The Appeal Panel notes that a trigger finger is due to swelling of the flexor tendon at the base of the finger which gets trapped in the flexor sheath also at the base of the finger, so that when the finger flexes it catches or “triggers” and sometimes gets stuck.  Importantly, once the tight restriction of the tendon sheath is released, the triggering is cured and there is no further loss of movement of any of the joints of the digit.

  7. The Appeal Panel notes that the AMS within Part 10b of the MAC said that he had found the appellant had 5% hand impairment of both her left hand and right hand due to the restricted range of movements of her 4th and 5th fingers in each hand.  The Appeal Panel notes that based on the worksheets the AMS had attached to the MAC the appellant’s restricted range of movements in each of the joints of her left ring finger and her left little finger was either equal to or less than the restricted range of movement of those fingers of her right hand, with the exception of the DIP joint in her left little finger.  Consistent with [2.20], even if triggering of her 4th or 5th fingers of the left hand had been evident during the AMS’s examination of the appellant, which it was not, then insofar as the appellant’s restricted range of movements of the joints of those fingers in her left hand did not exceed her range of movement of those fingers in her right hand, there could be no impairment assessed as a consequence of the injury in the form of triggering of her 4th and 5th fingers of her left hand.

  8. Be that as it may, importantly in this case, as the AMS noted in the MAC, there was no triggering of the appellant’s 4th and 5th fingers of her left hand evident at the time of the AMS’s examination.  In accordance with [1.6] of the Guidelines, the AMS was required to assess the appellant’s impairment based on her presentation at the time of assessment.  Consequently, the appellant’s impairment due to the restriction of the range of her movement in the DIP joint of her left little finger being greater than that in her contralateral joint, could not be due to trigger finger in her left little finger.  That is, it is not a consequence of her injury insofar as her injury had manifested in the form of triggering of her 4th and 5th fingers of her left hand. 

  9. As indicated above, and contrary to the appellant’s submissions, the AMS was bound to provide a MAC in response to the matters that had been referred to the AMS to assess.  The AMS would have been in error to identify other pathology, beyond that identified in the referral, that may have resulted from the mechanism by which the appellant suffered her injury when assessing the appellant’s permanent impairment from her injury.  Again, the AMS was limited by the terms of the referral that was issued to him.

  10. The Appeal Panel notes that the restricted range of movement in the DIP joint of appellant’s 4th little finger of her left hand could in no way be attributable to the other matters that were referred to the AMS to assess, namely her left shoulder, carpal tunnel syndrome and left wrist.  That is to say, the motion a person has in their DIP joint of the 4th little finger can in no way be due to adverse pathology in the person’s shoulder or due to carpal tunnel syndrome or due to an injury to the wrist.

  11. Consequently, based on the AMS’s findings from his examination of the appellant, on which the AMS was entitled to rely when assessing the appellant’s impairment, the AMS’s assessment of the appellant’s impairment from her injury, as described in the referral, is correct.  Therefore, the AMS has based his assessment on correct criteria and the MAC does not contain a demonstrable error.

  12. For these reasons, the Appeal Panel has determined that the MAC issued on 2 December 2020 should be confirmed.

Mr Marshal Douglas
Member

Dr Roger Pillemer
Medical Assessor

Dr Margaret Gibson

Medical Assessor

12 March 2021


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0