David Jones Pty Ltd v Shalala
[2024] NSWPICMP 43
•1 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | David Jones Pty Ltd v Shalala [2024] NSWPICMP 43 |
| APPELLANT: | David Jones Pty Ltd |
| RESPONDENT: | Mary Shalala |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Gregory McGroder |
| MEDICAL ASSESSOR: | J Brian Stephenson |
| DATE OF DECISION: | 1 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; injury in 2010 to right shoulder and cervical and consequential condition in left shoulder; allowance for impact of cervical spine injury on activities of daily living (ADLs); evidence that cervical spine pain caused impact on ADLs separate to that caused by right shoulder injury; no section 323 deduction for asymptomatic cervical spondylosis; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 November 2023 David Jones Pty Ltd (David Jones) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greggory Burrow, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 November 2023.
David Jones 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 was satisfied that, on the face of the application, at least one ground of appeal was made out – that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds 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 Shalala suffered an injury on 12 July 2010 when a shopping trolley toppled over and struck her on her right shoulder and neck. She later suffered a consequential condition in her left shoulder.
The Medical Assessor assessed 7% whole person impairment (WPI) in respect of Ms Shalala’s cervical spine, assessing her in DRE cervical category II and allowing 2% for the impact of the injury on her activities of daily living (ADLs). He did not make any deduction under s 323. The Medical Assessor assessed 15% upper extremity impairment (UEI) in respect of Ms Shalala’s right shoulder, which converts to 9% WPI and 2% WPI in respect of her left shoulder. The total assessment was 17% WPI.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Ms Shalala to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, David Jones submitted that the Medical Assessor applied incorrect criteria in allowing 2% for the impact of the cervical spine injury on her ADLs because any impact was due to her right shoulder injury and not to her neck injury. It submitted that the Medical Assessor erred in failing to make a deduction under s 323 in respect of a pre-existing cervical spine “injury”, which was at odds with the available evidence and in failing to provide proper reasoning for doing so.
No ground of appeal was raised with respect to the assessment of impairment arising from Ms Shalala’s shoulders or the assessment in DRE cervical category II in respect of her cervical spine.
In reply, and in submissions prepared by Mr Moffet of counsel, Ms Shalala submitted that the Medical Assessor referred to the appropriate parts of the Guidelines and did not err in assessing 2% for the impact of the cervical spine injury on her ADLs. With respect to s 323, Ms Shalala said that in the absence of any evidence of impairment before the injury in 2010, there was no basis to make a deduction under s 323.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
The MAC
The Medical Assessor set out a history of the injury, recording that Ms Shalala was hit by a trolley which toppled over and fell on top of her, causing immediate marked pain in her neck and right shoulder. He summarised the treatment Ms Shalala underwent, including surgery to her right shoulder in 2013. He said:
“In May 2011, Dr Davies who noted the possibility of cervical spondylosis and suggested a possible facet joint injection but also was concerned of a brachial plexus condition, recommending Lyrica.
....
She also has continuing pain in the cervical spine and had extensive non-operative treatment including pain management but had continuing symptoms.
She was referred to Dr Bentivoglio, Spinal Surgeon, who recommended non-operative treatment for the cervical spine.
01/04/2022: MR scan reported multi-level spondylosis with neural impingement at C5/6, C6/7.
She had increased symptoms in both her right shoulder and neck during a period of stocktaking in 2015 and then resigned in the same year.”
The Medical Assessor set out Ms Shalala’s present symptoms:
“Cervical spine: Ms Shalala continues to have severe cervical spine pain that she measures ‘11’ out of 10 (VAS) in the mid cervical spine posteriorly but also with referred pain into each shoulder, particularly the right arm about the trapezial area. The pain is worse with repetitive movement, associated with pins and needles particularly into the right thumb.”
On physical examination the Medical Assessor observed:
“Examination of the cervical spine showed normal attitude in the coronal and sagittal planes. There was muscle spasm without guarding. There was symmetric reduction in cervical movement of one third. Examination of the upper extremities showed no radicular pattern weakness or wasting and no dermatomal pattern of sensation abnormality. The reflexes at the biceps, brachioradialis and triceps were present and symmetrical.”
When summarising the injuries and diagnoses, the Medical Assessor said:
“Ms Shalala suffered an Injury to her right shoulder and aggravated preexistent cervical spine arthritis as a result of a work incident in 2010. She had she required surgery for the right shoulder, initially sought improved symptoms but has had recurrent severe pain and symptoms. Her neck still problems her. She has no radiculopathy on exam today. She has developed left shoulder symptoms without trauma which have not been investigated nor diagnosed to date but has motion loss on exam.”
The Medical Assessor explained his calculations:
“Cervical spine: AMA-5, Table 15-5, page 392: DRE Cervical Category II : as the history and examination findings are compatible with a specific injury, including muscle guarding without radiculopathy: 5% WPI.
Impact of ADL: Guides paragraphs 4.33, 4.34 and 4.35: 2% WPI as she has difficulties with yard, garden, sport, recreation and home care but is independent of self-care.
Total cervical spine impairment: 7%WPI.”
He commented on the reports of the examiners qualified for Ms Shalala and David Jones. He said:
“… I substantially agree with Dr Mastroianni’s impairment assessment approach to the cervical spine and impairment related to the right shoulder post-surgery with motion loss is appropriate, noting we have slightly different examination findings.
…
Dr Mastroianni makes no comments on pre-existing disease or deductible proportion. I agree with Dr Ho’s opinion that there is evidence of pre-existing cervical spondylosis, but note , with regard to the current treatment by PIC with regard to asymptomatic radiological confirmed changes of the spine results in zero deductable [sic] proportion.”
The Medical Assessor said that Ms Shalala suffered from the “following relevant previous injuries, pre-existing conditions or abnormalities”:
“Asymptomatic Multi-level spondylitic disease of the cervical spine with imaging changes.”
The Medical Assessor said that there is no deductible proportion.
Loading for ADLs
Paragraph 1.24 of the Guidelines points out that the impact of the injury on ADLs is not considered in assessments of the upper and lower extremities. Paragraphs 4.33 to 4.36 explain how the impact of spinal injuries on ADLs is assessed. Paragraph 4.33 points out that the assessment is made not only on the basis of self-reporting but on clinical findings and other reports.
The fact that Ms Shalala also suffered a shoulder injury does not mean that any impact of her neck injury on her ADLs cannot be considered. Certainly Ms Shalala has a significant right shoulder injury. However, there is also evidence that the injury to her cervical spine is significant. She rated the pain as 11/10 on the visual analogue scale and said it was worse with repetitive movement. The Medical Assessor said that there was reduction of the cervical range of motion of one third.
Ms Shalala provided specific details of the problems caused by her neck injury in her statement dated 18 May 2023. She said that her neck hurts on a daily basis when describing her household tasks. She wears slip on shoes or sits down to put her shoes on to avoid bending forward and does not wear button up shirts to avoid looking down. She used to blow dry her hair with her head down but can no longer do so because of neck pain and restriction of movement.
Dr Mastroianni, qualified for Ms Shalala in 2022, observed that the range of movement of her cervical spine was restricted and that she had chronic neck pain.
Ms Shalala was referred to Dr Pitham, neurosurgeon, in 2022 who arranged for her to undergo CT facet injections at C7/T1 and C6/7 on 21 October 2022.
Dr Pitham’s report dated 29 September 2022 appears in the Reply. He obtained a “long history of increasingly severe neck pain” which began not long after the shoulder injury. He said:
“She did not have a diagnosed cervical injury at that time, but within 6 or 12 months of the accident, she began to develop neck pain which has intensified over the years. In the last 2 years, it is now present around the clock, and is greatly affecting the quality of her life. It prevents her from sleeping, it is exacerbated by most activity, and there are few things that give her relief in any way.”
And:
“Her pain is mostly limited to the neck. She experiences it as a burning discomfort in the lower part of her neck posteriorly and bilaterally. She also has crepitus on movement. She does not have classic brachialgia per se, although she does experience a dull ache through much of her right arm down into the hand that is not in a classic dermatomal pattern. Her symptoms are exacerbated by any movement that involves flexion, which includes a vast array of activities including reading and typing.”
Dr Y K Ho, who saw Ms Shalala at the request of David Jones on 13 April 2023, noted that her neck remained sore and stiff. He observed that she “hardly had slightly more than 50% of normal movement in every direction together with muscle spasm.” He did not observe radiculopathy but observed that the steroid injection seemed to be working well. Despite that, Dr Ho did not make an allowance for the impact of the injury on Ms Shalala’s ADLs, saying that her difficulties related to the right shoulder.
The Medical Assessor’s findings of significant neck pain, limitation of movement and increased pain on repetitive movement would be sufficient to justify an allowance for the impact on ADLs because they easily translate to an impact on household tasks, consistent with Ms Shalala’s statement and the history provided to Dr Pitham.
It was open to the Medical Assessor to make an allowance for the impact of the neck injury on Ms Shalala’s ADLs.
Section 323
Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
…”
Ms Shalala suffered an accepted injury to her cervical spine in 2010 when she was in her early 40s. The Medical Assessor agreed that there was evidence of cervical spondylosis but did not make a deduction because those degenerative changes were asymptomatic.
Dr Ho appeared to have been influenced by the fact that a deduction would have no practical effect on his assessment when he said:
“Certainly for the cervical spine I believe there is a pre-existing condition contributing to the present problem from the aggravation by the work injury on 12 July 2010. As Ms Shalala had no complaints beforehand, I think a one-tenth deduction is appropriate which will still leave behind 5% after the one-tenth deduction from rounding up so there is no deduction ultimately.”
David Jones’ submissions focus on the existence of cervical spondylosis and say that it must contribute to the overall degree of impairment. That is not necessarily so.
In Cole v Wenaline Pty Ltd[2] Schmidt J considered a case in which the medical members of an appeal panel found that a deduction under s 323 was mandated because surgery had been undertaken as a result of a previous injury some years before. Her Honour said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[3]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”[4]
[2] [2010] NSWSC 78.
[3] At [29]-[30].
[4] At [38].
In Ryder v Sundance Bakehouse[5] Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
And
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”[6]
[5] [2015] NSWSC 526 at [45].
[6] At [54].
Medical evidence from the early stages of Ms Shalala’s treatment appears in the Reply and show how her injury was characterised at that time. She said in her statement that she had never had any problems with her neck and shoulder before that injury. An MRI scan of the cervical spine reported by Dr Le Roux on 14 October 2010 showed mild spondylitic change at C3/4, C4/5 and C5/6 and disc degeneration at C5/6.
Ms Shalala saw A/Prof Haber for treatment to her right shoulder. On 18 January 2011 he wrote to David Jones’ insurer and said:
“The diffuse shoulder girdle pain may be referred pain from the neck. When I referred to the neck I am implying nerves arising from the neck which we refer to as the brachia! plexus. A traction injury to the brachia! plexus can cause brachia! neuralgia which causes pain referred to the shoulder girdle region. The symptoms appeared to be related to the injury described and would not necessarily be expected to be present in the general population for a person of similar age. There is no evidence of a pre-existing or degenerative condition.”
Ms Shalala was referred to Dr Davies, neurosurgeon, who reported on 16 May 2011. Closer in time to the injury, he recorded a more detailed history of the injury than appears in other documents. He said:
“As you know, she suffered a work injury on 12 July last year when a trolley loaded with stock fell onto the back of her right shoulder and her head was pushed over to the left side at the same time. She has had constant pain in the right side of her neck and across the top of her right shoulder since then and some intermittent paresthesiae down the posterior surface of the arm, dorsal surface of the forearm and into the whole of the right hand.”
Dr Davies said:
“Her right upper limb symptoms could represent a brachial plexus strain injury. Her neck and shoulder pain might be arising from lower cervical facet joints on the right side.”
He prescribed Lyrica and recommended medial branch blocks. That treatment was deferred, pending a program with an exercise physiologist. Ms Shalala does not appear to have seen Dr Davies again.
There is limited radiology of Ms Shalala’s neck in the file. That is consistent with the history recorded by the Medical Assessor. She was referred to Dr Bentivoglio in July 2015 who is said not to have recommended surgery. His report does not appear in the file. The MRI scan report dated 10 July 2015 is in the general practitioner’s notes. The clinical information provided was “cervical neck pain with torticollis and cervical radiculopathy in the C5/C6 distribution”. Dr Sabharwal reported that the scan showed:
“Severe bilateral foraminal stenosis at the C4/C5 level with likely impingement of the C5 nerve root bilaterally and there is also moderate left foraminal narrowing at the C5/C6 level with likely irritation of the left C6 nerve root.”
Dr YK Ho said that it showed “reasonable cervical spondylosis” which he considered was most likely aggravated by the injury in 2010.
Ms Shalala underwent an MRI scan on 1 April 2022 reported by Dr Aurangabadkar which showed:
“Multilevel disc bulges/osteophytes and mild facet arthritis in the cervical spine contributing to moderate to severe impingement of bilateral C5-C6 and left C7 roots. Mild to moderate impingement of bilateral C4 roots, right worse than left. No cord compression or significant canal stenosis at any level.”
She underwent a further MRI scan on 28 September 2022, reported by Dr K Ho. It showed multilevel bilateral foraminal stenosis, severe on the right side at C4/5 and on the left at C4/5 and C5/6. It also showed multilevel facet arthropathy, most pronounced at C7/T1.
In his report dated 29 September 2022, Dr Pitham noted the right shoulder surgery and said:
“She did not have a diagnosed cervical injury at that time, but within 6 or 12 months of the accident, she began to develop neck pain which has intensified over the years. In the last 2 years, it is now present around the clock, and is greatly affecting the quality of her life. It prevents her from sleeping, it is exacerbated by most activity, and there are few things that give her relief in any way.”
He said:
“Mary has significant degenerative disease in her cervical spine, and has a severe cervical pain syndrome, which is likely due to a combination of discovertebral and facet arthritis, along with polyradiculopathy due to multilevel foraminal stenosis.”
Dr Pitham referred Ms Shalala for a bone scan to consider facet joint injections which were subsequently undertaken.
The changes observed over time on MRI scans support the Medical Assessor’s finding of an aggravation of pre-existing degenerative changes. He was required to make a deduction from his assessment of the extent of the impairment that was due to the pre-existing condition. Ms Shalala had no problems with her neck until she suffered a significant injury in 2010. The first investigation involving the cervical spine was performed on 14 October 2010 which demonstrated only very mild spondylitic change which were not significant and would not be contributing to her current level of impairment as they would not have been severe enough. Recent investigations which were around 12 years after the date of injury have demonstrated more significant spondylitic changes but they would not have been present prior to the injury on 12 July 2010. It was open to the Medical Assessor to determine that, while the injury was an aggravation of asymptomatic spondylosis, the impairment he assessed was not due to that condition and therefore not to make a deduction under s 323.
For these reasons, we have determined that the MAC issued on 6 November 2023 should be confirmed.
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