DL070912 Pty Ltd (formerly known as Darrell Lea Chocolate Shops Pty Ltd) deregistered v Stojcevska
[2024] NSWPICMP 62
•9 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | DL070912 PTY LTD (formerly known as Darrell Lea Chocolate Shops Pty Ltd) - deregistered v Stojcevska [2024] NSWPICMP 62 |
| APPELLANT: | DL070912 PTY LTD (formerly known as Darrell Lea Chocolate Shops Pty Ltd) - deregistered |
| RESPONDENT: | Rosa (Ruza) Stojcevska |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 9 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in his assessments of the right shoulder and right elbow; the MA ought to have applied clause 2.20 of the Guidelines when calculating impairment of the right shoulder and right elbow for loss of range of movement by using the impairment values of the left shoulder and left elbow joints as a baseline and subtracting the left shoulder and left elbow impairment values from the calculated impairment for the right shoulder and right elbow joints; Panel held there is evidence that the left shoulder was not a “normal/uninjured joint” it cannot be used as a baseline for comparison; therefore, a subtraction cannot be applied in accordance with clause 2.20 of the Guidelines; as there is no evidence of any injury to the left elbow, the joint is considered to be essentially normal, such that a deduction is warranted in the circumstances of this particular case; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 October 2023 DL070912 PTY LTD (formerly known as Darrell Lea Chocolate Shops Pty Ltd) - deregistered (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr SK Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 September 2023.
The appellant 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 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.
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).
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 Procedural Direction PIC7.
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 this 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 erred in his assessments of the right shoulder and right elbow. The Medical Assessor ought to have applied cl 2.20 of the Guidelines when calculating impairment of the right shoulder and right elbow for loss of range of movement by using the impairment values of the left shoulder and left elbow joints as a baseline and subtracting the left shoulder and left elbow impairment values from the calculated impairment for the right shoulder and right elbow joints.
The appellant does not challenge the other assessments.
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 respondent was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the right upper extremity (shoulder, elbow, wrist), left upper extremity (wrist), upper digestive tract, anal disease, cervical spine, lumbar spine and TEMSKI/scarring resulting from an injury on 31 March 2006 (deemed).
The Medical Assessor obtained the following history:
“Ms Stojcevska developed pain in her neck, lower back and upper extremities due to nature and condition of her work. She started to have pain at the lower back in 2005. The pain was mild for several months and it became severe in November that year. She was treated with pain medication and physiotherapy by her general practitioner
Dr Zelko Oreb in Newtown from the beginning of the symptoms. In February 2006,
Ms Stojcevska consulted medical specialist Dr Brennan for diffuse spinal pain, interscapular pain and headaches, pain across both shoulders and pain radiating down to her left leg. She was again treated with pain medication. In 2007, Ms Stojcevska was diagnosed with bilateral carpal tunnel syndrome and had operation to both wrists by
Dr Ryan in Newtown. The symptoms were relieved somewhat but remained with intermittent pins and needles sensation and numbness on both hands. From 2008
Ms Stojcevska was managed by orthopaedic surgeon Dr Medhat Guirgis. The doctor diagnosed chronic cumulative micro-traumatic mechanical derangement of the cervical and lumbar spines. He also diagnosed residual median neuropathy in the right and left carpal tunnels after decompression surgery in 2008, rotator cuff syndrome and consequential soft tissue jarring of the applicant’s left hip triggering and aggravating early but subtle age-appropriate changes. Dr Medhat Guirgis treated her conservatively. On 23 May 2014, Neurologist, Dr Cordato reported that a lower limb nerve conduction study was within normal limits. 5 July 2021, Dr Cordato stated that the cervical spine pathology was the generator of the applicant’s headaches.
Ms Stojcevska had several Botox injections with no benefit. Ms Stojcevska has consumed significant amounts of pain medication right from the beginning the symptoms. The medication has caused ongoing epigastric pain, severe reflux and severe constipation with intermittent haemorrhoidal bleeding. There was no history of haemorrhoidal prolapse. The medication included Digesic and Mersyndol Forte and non-steroidal anti-inflammatory drugs (NSAIDs) (Voltaren and Mobic). 10 June 2014 Ms Stojcevska had a normal colonoscopy by Dr Daskalopoulos. On 31 August 2021, she underwent gastroscopy and colonoscopy, performed by Dr Alexander Simring, gastroenterologist. The doctor found mild erosive gastritis, mild patchy chronic gastric inflammation, and several diverticulae in the sigmoid colon, melanosis coli and small internal haemorrhoids.”The Medical Assessor then set out details of the respondent’s present treatment, present symptoms, general health, work history and the impact of her injuries on her social activities.
The Medical Assessor then set out his findings on physical examination.
There was no relevant radiological material before him.
Relevant to the issue in dispute, he said:
“The shoulders were positioned symmetrically. There was no unilateral atrophy. On palpation, there was tenderness at both shoulders. The goniometric measurements obtained in the examination are tabled below…
Right 17% UEI: Left 18% UEI
On inspection, the elbows had no deformity or evidence of inflammation. The goniometric measurements obtained in the examination are tabled below…
Right 4% UEI: Left 2% UEI.”
The Medical Assessor summarised the injuries and diagnoses as follows:
“Rosa (Ruza) Stojcevska is a 60-year-old woman who sustained soft tissue injury to her upper extremities, upper digestive system, cervical spine and lumbar spine from nature and condition of work. She continues to have impairments from her injuries affecting many aspects of her daily activities and her capacity to work.”
He added:
“The right upper extremity had injuries to the shoulder, elbow, and wrist. The shoulder had range of motion impairment of 17% UEI, elbow 4% UEI and wrist 4% UEI. The total right upper extremity impairment = Combine 17, 4, 4 = 23% UEI or 14% WPI.
The left upper extremity had injuries to the wrist and it was rated at 2% UEI or 1% WPI based on the range of motion findings.”
The Medical Assessor then turned to consider the other medical evidence he had, which we do not intend to repeat here.
The submissions
The appellant commenced by setting out the background to the claim, noting:
(a) The Commission determined that the worker had not discharged the onus to establish…that she sustained a left shoulder injury, nor a left elbow injury…nor a consequential condition of either the left shoulder and/or left elbow.
An Award was made for the appellant employer in respect of the claimed left shoulder and left elbow injuries and/or consequential conditions.
The right upper extremity was assessed as 14% WPI as set out in paragraph 20 above.
The Medical Assessor also provided his comparative assessments of the uninjured left shoulder and elbow as follows:
(i)18% UEI (upper extremity impairment) – left shoulder based on range of motion, and
(ii)25% UEI – left elbow based on range of motion.
(b) The Medical Assessor did not use as a baseline/subtract the impairment values for the contralateral joints of the left shoulder and/or left elbow from his assessments of the work-related injured joints of the right shoulder and right elbow.
(c) The Medical Assessor did not provide a rationale for not subtracting the impairment values for contralateral joints of the left shoulder and/or left elbow from his assessments of the work-related injured joints of the right shoulder and right elbow.
(d) The Medical Assessor ought to have applied cl 2.20 of the Guidelines when calculating impairment of the right shoulder and right elbow for loss of range of movement by using the impairment values of the left shoulder and left elbow joints as a baseline and subtracting the left shoulder and left elbow impairment values from the calculated impairment for the right shoulder and right elbow joints.
(e) The Medical Assessor ought to have provided the rationale for his decision to subtract, or not subtract as in this matter, as required by cl 2.20 of the Guidelines.
(f) 17% UEI for the right shoulder based on loss of range of movement, less 18% UEI for the left shoulder based on loss of range of movement, would equate to no more than 0% UEI for the right shoulder, not 17% UEI as assessed by the Medical Assessor.
(g) The appellant seeks to appeal the Medical Assessor’s assessment of the right upper extremity (shoulder and elbow) in relation to the assessments based on the loss of range of movement of the right shoulder and right elbow.
(h) Due to the nature of the error, a re-examination by the Panel is not required, only that a correct calculation in accordance with cl 2.20 of the Guidelines be applied.
(i) The Medical Assessor correctly assessed 17% UEI for the right shoulder joint and 18% UEI for the left shoulder.
(j) The Medical Assessor has not subtracted the impairment value of the loss of range of movement of the non-compensable injured left shoulder from the impairment value of the compensable right shoulder.
(k) The left shoulder condition, and loss of range of movement, is non-compensable and not related to the injury 31 March 2006 (deemed) as per the amended COD dated 15 May 2023.
(l) On a correct application of cl 2.20 of the Guidelines, the Medical Assessor ought to have assessed 0% UEI of the right shoulder.
(m) There is no history of injury to the contralateral left shoulder and/or left elbow joints before or after the injury to the joints of the right shoulder and right elbow that has been referred for assessment. Therefore, the best method by which to assess the right shoulder and right elbow in the circumstances is to use the uninjured contralateral left shoulder and left elbow joints as a ‘baseline’ of what the respondent worker’s impairment in her injured joints were most likely to have been before injury.
(n) The appellant submits that on the above basis, the Medical Assessor ought to have provided an assessment of the right upper extremity (shoulder, elbow, and wrist) as follows:
(i)0% UEI of the right shoulder;
(ii)2% UEI of the right elbow, and
(iii)4% UEI of the right wrist.
(o) Accordingly, this ought to have resulted in a combined total of 6% UEI of the right upper extremity. In accordance with Table 16-3 at page 439 of the AMA-5, 6% UEI ought to have then been converted to 4% WPI of the right upper extremity (shoulder, elbow, and wrist).
(p) Using the correct assessment of 4% WPI for the right upper extremity (shoulder, elbow, and wrist), the total assessment as a result of the injury of 31 March 2006 (deemed) ought to have been 18% WPI, not 26% WPI as provided by the Medical Assessor.
(q) The Medical Assessor has not provided a rationale for not subtracting the impairment value for the loss of range of movement of the left shoulder and left elbow in the MAC as required by cl 2.20 of the Guidelines.
The respondent makes the following submissions:
(a) The available evidence establishes that the left shoulder cannot be described as "normal" and in those circumstances cannot be relied upon as an uninjured contralateral joint to establish a baseline for the purpose of assessment.
(b) The Medical Assessor records “there was tenderness at both shoulders" on physical examination.
(c) Goniometric measurements recorded by the Medical Assessor evidence a significant reduction on external and internal rotation of the left shoulder.
(d) The worker's evidence is that she has and continues to have a ".. burning sensation as well as pain and numbness and pins and needles in.." her right and left shoulders.”
(e) Dr Berry in his report dated 23 May 2022 records a history of pain in both shoulders and states: "Mrs. Stojcevska told me that she had experienced discomfort in her shoulders over a period of time ..." Dr Berry on examination found the worker had a reduced ability to lift both arms and movements of both shoulders were limited due to reproducing severe chest pain.
(f) Dr Oreb the worker's treating general practitioner records complaints of bilateral shoulder pain which was interscapular from about 2006. On 23 October 2016 the doctor further records ongoing neck pain which radiates into both shoulders.
(g) The Medical Assessment Certificate of Dr Bye records: “ ... she mentioned that she also experienced neck pain and stiffness, with radiation into both shoulders and shoulder blades.”
(h) Dr Panjratan records complaints of pain in the cervical spine travelling into both shoulder blades.
(i) Dr Briet for the insurer who in his report of 16 August 2022 at page 37, paragraph 2 of the Reply records a history of "… pain in the neck, shoulders, arms and knees which she tolerated.”Further Dr Breit records present complaints of pain in both shoulders and arms with pain radiating into the trapezium of both shoulders "and then all the way down the arms". In addition Dr Briet found on examination restriction of movement in both shoulders partially relating to chest pain resulting from coronary artery by-pass surgery.
(j) The appellant has failed to establish that the contralateral joint is "normal" and the impairment values are therefore capable of serving as a baseline for the injured right shoulder.
(k) There is substantial evidence available to the Medical Assessor confirming the worker's left shoulder was not "normal”.
(l) Therefore the impairment values of the left shoulder cannot be described as normal and the contralateral joint cannot serve as a baseline for the injured right shoulder. The Medical Assessor is not required to provide further reasons in those circumstances.
(m) The impairment values of the left elbow cannot serve as a baseline for the injured right elbow for the same reasons as provided above with respect to the left shoulder.
(n) The worker has consistently reported complaints in both arms which in the worker's submission includes the area from the shoulder to the hand. Therefore the impairment values of the left elbow cannot be described as normal and the contralateral joint cannot serve as a baseline for the injured right elbow.
Findings and reasons
Chapter 2.20 of the Guidelines provides as follows:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant (joints) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report.”
We agree in part with the respondent’s submissions as regards the left shoulder.
In our view, there is ample evidence to suggest that the left shoulder was by no means “normal” at the time of the Medical Assessor’s assessment, irrespective of the fact that it was not related to the subject accident.
There is evidence of some pathological changes in that shoulder despite the lack of imaging available. There is a well-documented history of left shoulder pain by Dr Berry, Dr Oreb and Dr Briet. The range of motion tests indicate severe restriction of left shoulder motion that would not be anticipated in an otherwise normal shoulder.
In summary, since there is evidence that the left shoulder was not a “normal/uninjured joint” it cannot be used as a baseline for comparison. Therefore, a subtraction cannot be applied in accordance with cl 2.20 of the Guidelines.
However, as regards the left elbow, we do not accept the respondent’s submissions that symptoms in “both arms… includes the area from the shoulder to the hand” for the purposes of cl 2.20 of the Guidelines and this particular assessment. There is no medical record of local pain in the left elbow.
As there is no evidence of any injury to the left elbow, the joint is considered to be essentially normal, such that a deduction is warranted in the circumstances of this particular case.
The right elbow impairment ought properly to have been assessed as 2% UEI not 4%, a difference of 1% WPI.
This then means that the total upper extremity impairment ought to be calculated at 13% WPI, bringing the total combined WPI to 25%.
For these reasons, the Appeal Panel has determined that the MAC issued on
6 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W898/23 |
Applicant: | Rosa (Ruza) Stojcevska |
Respondent: | DL070912 PTY LTD (formerly known as Darrell Lea Chocolate Shops Pty Ltd) - deregistered |
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 Medical Assessor SK Cyril Wong 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. Right upper extremity (shoulder, elbow, wrist) | 31 March 2006 (deemed) | Chapter 2 P10-12 | Chapter 16 P433-521 | 13% | Nil | 13% |
| 2. Left upper extremity (wrist) | 31 March 2006 (deemed) | Chapter 2 P10-12 | Chapter 16 P433-521 | 1% | Nil | 1% |
| 3. 3. Upper digestive tract | 31 March 2006 (deemed) | Chap 16 | Chap 6 | 2% | Nil | 2% |
| 4. Anal disease | 31 March 2006 (deemed) | Chap 6 | 1% | Nil | 1% | |
| 5. Cervical spine | 31 March 2006 (deemed) | Chapter 4 P24-30 | Chapter 15 Table15-5 | 5% | Nil | 5% |
| 6. Lumbar spine 7. Scarring | 31 March 2006 (deemed) | Chapter 4 P24-30 TEMSKI | Chapter 15 Table15-3 | 0% | N/A | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 25% | |||||
0