Dibnah v One Hundred Hospitality Pty Ltd
[2022] NSWPICMP 355
•13 September 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dibnah v One Hundred Hospitality Pty Ltd [2022] NSWPICMP 355 |
| APPELLANT: | Kristin Dibnah |
| RESPONDENT: | One Hundred Hospitality Pty Ltd |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 13 September 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION- Appeal by worker against 8% Whole Person Impairment assessment for physical injuries; whether Medical Assessor asked the wrong question when assessing Activities of Daily Living (ADLs) at 1%; Held – whether the appellant was independent in her personal and domestic activities was the wrong question; the correct question being whether the worker had any restrictions in performing them; NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 objectives considered; Medical Assessment Certificate revoked and 3% for ADLs substituted. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 May 2022 Kristin Dibnah, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mohammed Assem, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 21 April 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 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, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 29 March 2022, following consent orders of 28 March 2022, this matter was referred to the MA for assessment of WPI caused by injury to the right lower extremity (knee) and the lumbar spine (consequential condition) which occurred on 11 December 2019.
On 11 December 2019 Ms Dibnah was carrying a polystyrene box of food when she struck her right knee against a wooden seat on a picnic table causing a dislocation to her right patella.
An MRI scan of 3 January 2020 showed extensive osteochondral bruising and other pathology suggestive of a ligament tear.
She returned to work on suitable duties about nine months after the injury working for several months predominantly in a seated position.
The MRI scan was repeated as Ms Dibnah continued to experience constant pain, stiffness and instability.
A recommendation for a right tibial tubercle transfer surgery was declined by the insurer (and decided against by the applicant eventually).
She gradually developed lower back discomfort and she now has an altered gait pattern through her difficulty completely extending her right leg.
The MA assessed 8% WPI for the injury to the right lower extremity and 6% in relation to the injury to the lumbar spine.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant did not seek to be re-examined by a MA who is a member of the Appeal Panel.
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.
Medical Assessment Certificate (MAC)
The parts of the medical certificate given by the MA where relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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 employer challenged the assessment of 1% WPI for the appellant’s restrictions in her activities of daily living in the assessment of the lumbar spine.
The MAC
The assessments by the MA of 8% WPI for the right lower extremity and 5% WPI for a DRE II category in respect of the lumbar spine are not challenged.
The MA allowed 1% WPI for the restrictions in the appellant’s activities of daily living. He said:[1]
“[The appellant] developed a gradual onset of lower back discomfort that she attributed to her altered gait pattern. She had difficulty completely extending her right leg and ambulates with a limp.”
[1] Appeal papers p 23.
The appellant’s present back symptoms were constant, the MA said, with no radiation to her legs, but giving a rating of 7/10 on a subjective pain assessment. She sometimes had difficulty in sitting or standing for long periods. With regard to Ms Dibnah’s activities of daily living, the MA said:[2]
“She is independent in driving but experiences knee pain when driving for long periods.”
[2] Appeal papers p 23.
The MA explained his calculations at [10a] of the MAC. He said:
“She has mechanical low back pain and stiffness. There is tenderness on palpation and some asymmetry of movement. There were radicular complaints or focal neurological deficits. She was therefore awarded a DRE lumbar category II or 6% whole person impairment inclusive of 1% WPI for a minor limitation in her activities of daily living7.”
(The footnote referred to Chapter 4.35 of the Guides.)
In considering the opinions of other medical opinions at [10c], the MA said, after noting that an assessment of 2% for the limitations in daily living had been assessed by another practitioner:
“Ms Dibnah informed me that she was independent in her personal and domestic activities of daily living. She is also working as a traffic control officer but is able to sit when needed and delegate some of the tasks to other staff members. I therefore considered 1% whole person impairment was appropriate for a mild limitation in activities of daily living.”
SUBMISSIONS
Appellant
The appellant submitted that the MA had fallen into error in his assessment of 1% for her limitation in the activities of daily living. He had asked the wrong question by examining whether the appellant was independent in her personal and domestic activities rather than whether she had any restrictions in performing them.
It was submitted that the MA made no reference to the Guides or the criteria therein provided. We were referred to the difficulties noted by the MA regarding the appellant’s knee injury, for which it was submitted at least a rating of 2% should have been given. (We note in passing that the additional WPI is only available for restrictions in activities of daily living that are caused by spinal injuries).
We were referred to the appellant’s statement which provided evidence of her difficulties with house work and self-care. We were referred further to the opinion of Dr Lai, her medico-legal expert, who also noted that she required domestic assistance.
The MA had not applied the correct criteria, and an assessment should be made of 3%, it was submitted.
Respondent
The respondent referred to the examination findings of the MA, submitting that a “fair understanding of any impact on ADLs arising from the back injury” was thereby available.
The finding by the MA that the appellant was independent in her personal and domestic activities was referred to, the respondent submitting that anything above 1% WPI was thereby ruled out.
The reliance on the appellant’s statement and the opinion of Dr Lai were not reliable, it was submitted, because that evidence was “stale”.
No error had been made, as the MA had conducted his own assessment, and what question he asked was but one of the matters he had to deploy in coming to his own clinical judgment, we understood the respondent to submit.
We were referred to Chapter 4.33 of the Guides, in respect of which it was submitted that the MA had carefully considered Dr Lai’s opinion, which the respondent again submitted was “stale” as it was dated 24 November 2020. The MA had also considered the other material before him, and the appellant’s submissions were no more than a mere disagreement about which reasonable minds might differ, as we understood the submission.
DISCUSSION
We accept that the MA approached calculation of WPI for the limitations of daily living by asking the wrong question. The Guides provide from Chapter 4.34 - 4.35:
“4.33 Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.
4.34 The following diagram should be used as a guide to determine whether 0%, 1%, 2% or 3% WPI should be added to the bottom of the appropriate impairment range. This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury.
(As written).
YARD/GARDEN/SPORT/RECREATION 1%
HOME CARE 2%
SELF CARE 3%
[The diagram is omitted, as its effect is described below]
4.35 The diagram is to be interpreted as follows:
Increase base impairment by:
•• 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
•• 2% WPI if the worker can 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
•• 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
It can be seen that the criteria set out in Chapter 4.35 have to be considered in the context of the overall discretion given to an MA by virtue of the expression “as a guide” in
Chapter 5.34. It follows that the examples in Chapter 5.35 are not intended to be read as strict criteria, but are simply examples to assist the MA.Nevertheless, it can also be seen that the criteria are concerned with the restrictions caused by the subject injury/consequential condition, rather than whether a claimant was independent in his/her personal and domestic activities of daily living. Many injured people suffer quite serious injuries to the spine and remain independent in those respects, but are nonetheless restricted in their activities. The Guides are concerned with how the injury affects a person’s daily living, rather than whether he/she is independent in doing so. The focus is whether the ability:
i.to perform personal care activities is affected in the 3% personal care category, or
ii.to perform the usual household tasks is restricted as described with regard to the 2% allocation , or
iii.to perform previous sporting and recreational events is compromised as described with the 1% allocation.
The appellant said in her statement of 12 May 2021:[3]
“ Prior to my injury, I used to perform home care duties by myself whilst living in my share house. This included cooking meals for myself, washing the dishes, hanging out the laundry and vacuuming around the house. I always kept my room clean and tidy and carried out these duties with ease. Due to the pain in my lower back, I struggle to carry out housework. I find myself friend had [sic] a party at a trampoline place. To my disappointment, I had to say l could not go as I knew jumping on a trampoline would cause me to experience significant pain and discomfort in my back and knees.
[sic] Prior to my injury, I used to perform home care duties by myself whilst living in my share house. This included cooking meals for myself, washing the dishes, hanging out the laundry and vacuuming around the house. I always kept my room clean and tidy and carried out these duties with ease. Due to the pain in my lower back, I struggle to carry out housework. I find myself taking significantly longer to complete tasks and can only carry out chores for maximum one hour each day. As I was previously a chef, I used to be able to move around a kitchen very quickly and twist and swivel with ease. Since my injury, I have to pace myself and move much slower around the kitchen, as I do not want to aggravate my back and Knee pain.
As a result of my injury, I now have difficulty dressing myself. I find bending over to put mv shoes and socks on particularly difficult due to my restricted range of movement and the pain I suffer in my upper and lower back. When I move back up after putting on my shoes, I get a pinching pain in my lower back. In addition, since my injury, l now use a shower chair when washing myself. I find it difficult to stand for prolonged periods of time or bending over to wash my lower legs.”
[3] Appeal papers p 45
In his report of 24 November 2020 Dr Min Fee Lai, general surgeon, reported as Ms Dibnah’s medico-legal expert.[4] He noted that the appellant was “able to cope but with some restrictions” with her self-care, but nonetheless ascribed a 2% loading for her restrictions in the activities of daily living.[5] We note that Ms Dibnah’s statement post dated Dr Lai’s assessment, and her description of the restrictions of her activities of daily living stands unchallenged.
[4] Appeal papers p 72.
[5] Appeal papers p 74.
Further, notwithstanding that the appellant’s lumbar spine symptoms are as a result of a consequential condition following a dislocation of her right patella, she attributes the restrictions in her self-care to her back symptoms whilst dressing – particularly bending over to put on her shoes and socks. She also complains of having to use a shower chair, but it is not clear whether that is necessitated by her knee injury or her back condition.
The respondent’s submission that the evidence relied on is “stale” is difficult to interpret in context. We were not referred to any event that would indicate that her condition is now different to that she described in her statement. Whilst Ms Dibnah is now working on light duties there is no suggestion that her condition has improved. Indeed the MA mentioned the restrictions under which she now works as a traffic controller, with allowances for her to sit when needed and to delegate her work if need be.
Further, whilst the MA has no doubt relied on his clinical experience in forming his assessment as he is required to independently of other opinions before him (there was only Dr Lai’s report in this case), such an opinion is of no assistance if, as here, it is based on a misapprehension of the task he was to perform.[6] Ms Dibnah’s evidence is clear as to her restrictions in self-care and that they are caused, at least in part, by her back condition.
[6] See Western Sydney Local Health District v Chan [2015] NSWSC 1968 @ [13] as to the task required of an MA.
Accordingly, we are satisfied that a 3% assessment should have been made for the restrictions in the activities of daily living that has been caused by the back condition. The applicant’s evidence that all three categories of her daily living have been restricted has not been contradicted, and no adequate reason has been advanced by the respondent as to why that evidence should not be accepted.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 April 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: | W1124/22 |
Applicant: | Kristin Dibnah |
Respondent: | One Hundred Hospitality Pty Ltd |
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 Assem and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Right lower extremity (knee) | 11/12/2019 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 8% | nil | 8% |
| Lumbar spine | 11/12/2019 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 8% | nil | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
2
0