Dolbel v Thompson Health Care Pty Ltd
[2023] NSWPICMP 540
•27 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dolbel v Thompson Health Care Pty Ltd [2023] NSWPICMP 540 |
| APPELLANT: | Elizabeth Dolbel |
| RESPONDENT: | Thompson Health Care Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 27 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; matter referred to Medical Assessor (MA) for assessment of right upper extremity (shoulder), cervical spine and consequential condition in left upper extremity (shoulder); MA deducted 10/10ths in respect of assessment of 3% whole person impairment (WPI) for the left shoulder; MA erred in determining that the left shoulder was not a consequential condition; MA erred in deducting 10/10ths pursuant to section 323 after finding there was no pre-existing injury, condition or abnormality; Appeal Panel assessed 3% WPI for the left shoulder; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 September 2023 Elizabeth Dolbel (Ms Dolbel) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 August 2023.
Ms Dolbel 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 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).
RELEVANT FACTUAL BACKGROUND
Ms Dolbel sustained an injury to her right shoulder and cervical spine in the course of her employment on 31 October 2016 and then developed a consequential condition in the left shoulder.
The matter was referred to the Medical Assessor, Dr Yiu-Key Ho, on 19 June 2023 for assessment of whole person impairment (WPI) of the right upper extremity (shoulder), left upper extremity (shoulder) and cervical spine with the date of injury being 31 October 2016.
The Medical Assessor examined Ms Dolbel on 3 August 2023 and assessed 8% WPI of the right upper extremity (shoulder), 3% WPI of the left upper extremity (shoulder) and 0% WPI of the cervical spine. The Medical Assessor made a deduction pursuant to s 323 of the 1998 Act of 10/10ths in respect of the left upper extremity (shoulder) which resulted in an assessment of 0% WPI for the left upper extremity (shoulder). The combined total was 8% WPI as a result of the injury on 31 October 2016.
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.
Ms Dolbel requested that she be re-examined by a Medical Assessor who is a member of the Appeal Panel and that that all referred systems be re-examined (including scarring) by a member of the Appeal Panel.
The Appeal Panel noted that the Referral for Assessment of Permanent Impairment to Medical Assessor (the referral) dated 19 June 2023 made no reference to the scarring, skin or TEMSKI in the list of body parts referred. There was also no reference to an assessment of scarring, skin or TEMSKI in the Certificate of Determination Consent Orders (COD) of Member John Wynyard dated 9 June 2023. Member Wynyard remitted the matter by and with the consent of the parties to the President for referral to a Medical Assessor of the right upper extremity (shoulder), left upper extremity shoulder) and cervical spine. It appears that no objection was taken by Ms Dolbel to the terms of the referral or to the COD.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Ms Dolbel to undergo a further medical examination because there was sufficient evidence on which to make a determination. Further, the referral did not list the scarring, skin or TEMSKI as body parts or systems for assessment and the Appeal Panel did not consider that it should make such an assessment given the terms of the referral and COD.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, 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.
Ms Dolbel’s submissions include the following:
(a) Ground 1 – the Medical Assessor acted ultra vires. Despite having been asked to assess whole person impairment of a consequential condition to the left shoulder, the Medical Assessor at page 4 wrote:
“I do not think her left shoulder is a consequential problem to the problem on the right…I really don’t think she tried her best to move and some of the stiffness on the left shoulder may be because she hasn’t tried her best to move or there is really some restriction, which is the normal finding for her, rather than full range in every direction. Even though, the left upper limb has 5% upper extremity impairment which will be equal to 3% whole person impairment, I don’t think this is related to the work injury or consequential to the injury of the right shoulder.”
(b) Liability for the consequential condition was accepted by Thompson Health Care Pty Ltd (the respondent) and was not in dispute. It was not available to the Medical Assessor under the terms of the referral to form his own opinion as to causation of the consequential injury to the left shoulder.
(c) The Medical Assessor was to conduct an assessment of impairment under section 322 of the 1998 Act, and not to posit theories on causation or “injury”.
(d) The Medical Assessor’s conclusions on causation clearly demonstrated error in circumstances where:
(i)the Medical Assessor has not set out the actual path of reasoning by which he arrived at his opinion the left shoulder is not a consequential problem to the problem on the right shoulder (see Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43 at [48]).
(ii)The conduct of the Medical Assessor during the assessment as alleged by Ms Dolbel in her letter of complaint dated 7 August 2013 [sic] clarified the Medical Assessor’s conclusions:
“I really don’t think she tried her best to move and some of the stiffness on the left shoulder may be because she hasn’t tried her best to move or there is really some restriction, which is the normal finding for her, rather than full range in every direction.”
Ms Dolbel’s complaint was to the effect she was not allowed to adequately explain herself and was in such pain that her support person, Ms Dunn encouraged her to not complete movements after observing Ms Dolbel “changing colour, turning grey”.
(e) The determination of the Medical Assessor was inconsistent with the referral and with the medical dispute underlying that referral. The Medical Assessor was acting outside the scope of his powers in that he did not limit his assessment to assessment of impairment. The Medical Assessor effectively applied a 100% deduction under s 323 even though there was no evidence of a previous injury, pre-existing condition or abnormality to the left shoulder.
(f) Ground 2 – the Medical Assessor has erred in applying a 100% deduction to the assessed left shoulder impairment of 3% WPI. There was no power to do so unless there was evidence of previous injury, pre-existing condition or abnormality under s 323.
(g) Having failed to take into account Ms Dolbel’s evidence that she began to rely more heavily on the left arm following surgery on 27 May 2019 and had to do “pretty much everything” with her left arm (page 1 of the Application to Resolve a Dispute (ARD) the Medical Assessor concluded:
“She showed no improvement with conservative treatment and ended up with two times surgery on the right shoulder and is still having inferior function, then lately, she started to complain of left should problems due to compensation and overuse, as a result of the stiffness in the right shoulder.”
(h) The Medical Assessor proceeded on an incorrect assumption that there was no history of complaint of injury to the left shoulder until “lately.” The Medical Assessor’s conclusion that there was a symptomatic pre-existing condition therefore involved a factual error. Further, the lay evidence demonstrated that Ms Dolbel was asymptomatic in her left shoulder prior to the injury on 31 October 2016.
(i) The Medical Assessor failed to address whether there was a pre-existing injury, condition or abnormality in the left shoulder. The medical and lay evidence, properly considered, did not reveal any pre-existing injury, condition or abnormality in the left shoulder and the Medical Assessor therefore erred by making a deduction under s 323.
(j) The Medical Assessor erred in determining that the left shoulder dysfunction was not “related to the work injury or consequential to the injury of the right shoulder” without identifying what the causes were and whether they formed a pre-existing injury, condition or abnormality in the left shoulder. Simply because there is evidence of mere degenerative changes was not enough to warrant a deduction under s 323. (Cole v Wenaline Pty Limited [2010] NSWSC 78, Ryder v Sundance Bakehouse [2015] NSWSC 526).
(k) The Medical Assessor failed to disclose his actual path of reasoning as to why he applied a s 323 deduction to the left shoulder. There was no evidence before the Medical Assessor of an earlier injury, pre-existing condition or abnormality to the left shoulder. The High Court held in Wingfoot at [55]: “The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.”
(l) The deduction under s 323 therefore constituted a demonstrable error.
(m) Ground 3 – the Medical Assessor failed to take into account any of Ms Dolbel’s evidence. In her statement dated 3 January 2023, Ms Dolbel said:
(i)during the period when she was recovering from the right shoulder repair she began to rely more heavily on the left arm and had to do pretty much everything with the left arm.
(ii)She did not have much relief from the surgery on 10 September 2020 to the right shoulder and symptoms in the left shoulder and neck increased.
(iii)The symptoms in her neck and left shoulder increased over time particularly following the surgeries.
(n) After the injury she had to rely heavily on her left arm to do a number of tasks not only in her job but also at him in her personal care such as hanging out washing, vacuuming, cleaning, cooking, shopping and gardening.
(o) Despite this history the Medical Assessor concluded at page 3 of the MAC that Ms Dolbel had started to complain of left shoulder problems due to compensation and overuse ‘lately.’
(p) This was inaccurate and inconsistent with Ms Dolbel’s evidence and constituted a demonstrable and factual error. It also constituted a demonstrable and factual error in circumstances where Ms Dolbel said that she was not able to properly and fully tell her history to the Medical Assessor during the assessment.
(q) The MAC involved demonstrable error for the reasons outlined above and should be revoked.
(r) Considering Ms Dolbel’s written complaint and the breakdown of trust between the Medical Assessor and Ms Dolbel, Ms Dolbel seeks that all referred systems be re-examined (including scarring) by a member of the Appeal Panel.
The respondent’s submissions include the following:
(a) Ground 1 – the Medical Assessor acted ultra vires. Ms Dolbel correctly observed that the dispute in relation to the injury to her left shoulder was resolved between the parties by consent, following which the left upper extremity (left shoulder) was referred to the Medical Assessor for assessment of any permanent impairment arising from that injury.
(b) Whilst the Medical Assessor was required to accept that an injury to the left shoulder occurred, it was the Medical Assessor’s role in accordance with s 319(c) of the 1998 Act and the referral to determine the degree of impairment resulting from that injury, and to do so required the Medical Assessor to make findings of causation. In Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 the Court of Appeal held that a Medical Assessor can make findings of fact where it is necessary for the performance of their function under s 319(c) to resolve a medical dispute and determine the degree of permanent impairment arising from a referred injury (as opposed to any other factors). That was reinforced in the judicial review decision of the NSW Supreme Court in Cincotta v Police Citizens Youth Clubs NSW Ltd & Ors [2018] NSWSC 1588, where it was held that the Approved Medical Specialist/Medical Assesor was “required to engage in such assessment of causation as was necessary to discharge their statutory task of determining the degree of permanent impairment resulting from the injury in question.”
(c) Ground 2 - contrary to Ms Dolbel’s assertion that there was no evidence of a previous injury, pre-existing condition or abnormality at the left shoulder, there was a reference at page 2 of the MAC to Ms Dolbel having undergone radiological investigations including ultrasound at left shoulder which indicated bursitis.
(d) The Medical Assessor has provided sufficient detail to explain the actual path of reasoning to enable a court to see whether the opinion does or does not involve any error of law in accordance with requirement outlined in Wingfoot Australia Pty Limited v Kocak [2013] HCA 43.
(e) The Medical Assessor based his assessment of permanent impairment arising from the work injury on his direct observations during clinical examination that Ms Dolbel did not appear to be making genuine or full attempts to demonstrate her range of motion at the left (and right) upper extremity. Those observations were outlined at the bottom of page 4 of the MAC, as well as the top of page 5. He described the movements demonstrated by Ms Dolbel to have been performed “very slowly and in a funny way.” The Medical Assessor did not find any obvious signs of weakness after obtaining nor any upper limb neurology.
(f) The Medical Assessor measured a WPI of 3% of the left upper extremity based on an average of the various demonstrations given by Ms Dolbel during the clinical examination.
(g) Based on his observations of the presentation of Ms Dolbel, the Medical Assessor attributed those restrictions in range of movement to either Ms Dolbel failing to make full attempts to demonstrate a genuine range of movement, or to the range of movement being limited to the demonstrated range as a result of that being her constitutional limits, as opposed to any pathology or impairment arising from the subject work injury.
(h) To the extent that the deduction was made to account for pre-existing, constitutional limitations unrelated to the work injury, it was appropriate for that deduction to be made under s 323 of the 1998 Act.
(i) To the extent that Ms Dolbel’s permanent impairment at the left upper extremity was assessed as nil because the Medical Assessor did not accept that the work injury had caused any restriction of movement, this was a finding that was open to the Medical Assessor to make.
(j) Ground 3 – that the Medical Assessor failed to have regard to the evidence of Ms Dolbel.
(k) The Medical Assessor had the benefit of both examining Ms Dolbel in person and reviewing the extensive medical and factual evidence relied upon by both parties in the ARD and Reply.
(l) Ms Dolbel received an independent medical assessment of her condition in accordance with the role and function of the Medical Assessor. Deputy President Flemming in the matter of Phillip John Carmody v Walter Merriman & Sons Pty Limited [2003] NSWWCCPD 27 said:
“…a medical assessment is entirely a matter for the AMS, who has the medico-legal reports from both parties before him or her...and has frequently had the benefit of a personal examination of the worker...”.
(m) There was no evidence that the examination by the Medical Assessor, was in any way materially defective and the Medical Assessor’s examination amounted to a proper medical examination.
(n) On the face of the MAC that the Medical Assessor did not fail to take into account Ms Dolbel’s evidence that because of her right arm and shoulder injury, she increased her reliance upon her left arm, and noticed increasing symptoms at left shoulder and neck.
(o) The Medical Assessor recorded at page 2 of the MAC in history obtained from Ms Dolbel that she experienced pain in the right shoulder and right side of her chest wall, which resulted in her using her left arm a lot more. That history was reiterated that the bottom of page 3 of the MAC where the Medical Assessor stated that he accepts Ms Dolbel sustained a work injury to her right upper limb consistent with the history of injury provided to him, which resulted in stiffness and pain in the right shoulder, and later, the development of symptoms in the left shoulder as a result of compensating the right side.
(p) It was clear then that the Medical Assessor has given adequate regard to the evidence of the worker.
(q) In relation to the development of a consequential condition at the left upper extremity, the Medical Assessor accepted that to be consistent with the nature of the injury as reported by Ms Dolbel. What was not accepted by the Medical Assessor was that Ms Dolbel has suffered any permanent impairment at the left upper extremity as a result.
(r) The MAC did not contain a demonstrable error. The Medical Assessor’s opinion should be conclusively presumed correct. His findings were matters within the clinical judgment of the Medical Assessor and had been made within the jurisdiction or scope of the referral to determine the medical dispute by assessing the degree of permanent impairment arising from the work injury.
(s) The MAC should be confirmed.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. 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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Appeal Panel noted that Ms Dolbel was dissatisfied with the conduct of the Medical Assessor during the assessment and made a formal written complaint dated 7 August 2023 which was sent to the Personal Injury Commission and the State Insurance Regulatory Authority (SIRA) on 10 August 2023. However, addressing this complaint is not a matter for the Appeal Panel.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 – ultra vires
Ms Dolbel submitted that the Medical Assessor did not abide by the terms of the referral and acted ultra vires determining that the left shoulder is not “related to the work injury or consequential to the right shoulder problem”.
The Medical Assessor on page 2 under “present symptoms” noted:
“The right shoulder remains sore and stiff and she cannot do too much. The pain is in the shoulder itself and on the right side of the chest wall so she tends to use the left arm a lot more. She also complained of soreness in the left shoulder and radiological investigations including ultrasound was done which only confirmed bursitis.”
Under “Summary of injuries and diagnoses” on page 3 the Medical Assessor concluded:
“…She showed no improvement with conservative treatment and ended up with two times surgery on the right shoulder and is still having inferior function, then lately, she started to complain of left should problems due to compensation and overuse, as a result of the stiffness in the right shoulder.”
The Medical Assessor commented under “Reasons for Assessment” at page 4:
“I do not think her left shoulder is a consequential problem to the problem on the right…I really don’t think she tried her best to move and some of the stiffness on the left shoulder may be because she hasn’t tried her best to move or there is really some restriction, which is the normal finding for her, rather than full range in every direction. Even though, the left upper limb has 5% upper extremity impairment which will be equal to 3% whole person impairment, I don’t think this is related to the work injury or consequential to the injury of the right shoulder.”
The Medical Assessor clearly expressed the view that the upper extremity impairment of the left shoulder was not related to the work injury or “consequential to the injury of the right shoulder”. He stated that he did not think that the left shoulder was a “consequential problem to the problem on the right”. While the Appeal Panel accepted that the Medical Assessor was required to engage in such assessment of causation as was necessary to determine the degree of permanent impairment resulting from the injury to be assessed, the parties in this matter had agreed that Ms Dolbel had a consequential condition in the left shoulder as a result of the injury to the right shoulder on 31 October 2016. In stating that he did not think that the left shoulder was a consequential problem to the injury of the right shoulder the Medical Assessor acted ultra vires and beyond the scope of the referral.
In addition the Appeal Panel considered that the Medical Assessor did not adequately set out the actual path of reasoning by which he arrived at the opinion the left shoulder was not a consequential condition to the problem on the right shoulder. The failure to provide adequate reasons was a demonstrable error.
Ground 2 – deduction for pre-existing condition or injury
Ms Dolbel submitted that the Medical Assessor erred by effectively applying s 323 of the 1998 Act when there was no evidence of a previous injury, pre-existing condition or abnormality to the left shoulder injury.
Section 323 of the 1998 Act provides:
“(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.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Ltd (2010) NSWSC 78 (Cole). Schmidt J said:
“29 … The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction 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.
30 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 injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 The reason for this statutory approach can readily be seen. It is entirely possible that a person could suffer such a catastrophic injury, that the presence or absence of any previous injury, pre-existing condition or abnormality, would make no difference at all to the impairment which resulted from the later injury. An injury which results in death, is an obvious example, albeit not one which would arise for consideration under this section. A more relevant example, in this case, is a second injury which severed the spine.Or, as was discussed in the authorities, an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case.An assumption of the kind here made, namely that surgery to the lumbar spine, irrespective of outcome, must always result in a level of residual impairment which contributes to the level of impairment which follows a later injury, has no role to play in that assessment. What must be determined on the evidence is whether any proportion of the permanent impairment present after the second injury was due to the earlier injury.”
The Medical Assessor under Part 11 “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” wrote: “There is no deductible proportion”. However, in Table 2 the Medical Assessor made a deduction of 10/10ths pursuant to s 323 for pre-existing injury, condition or abnormality in his assessment of the left shoulder. The Appeal Panel was satisfied that the Medical Assessor having found that there was no deductible proportion but then deducting 10/10ths pursuant to s 323 made a demonstrable error.
The Appeal Panel reviewed the evidence in this matter.
In her statement dated 3 January 2023, Ms Dolbel stated that she had surgery on her right shoulder on 27 May 2019. She stated:
“During the period when I was recovering from the right shoulder repair I began to rely more heavily on the left arm. I had to do pretty much everything with the left arm”.
She stated that she underwent further surgery on 10 September 2020 to the right shoulder and symptoms in the left shoulder and neck increased. She stated:
“The symptoms in my neck and left shoulder and symptoms into my lower back increased over time particularly following the surgeries”.
The Appeal Panel accepted that after the injury Ms Dolbel had to rely heavily on her left arm to do a number of tasks not only in her job but also in her personal care such as hanging out washing, vacuuming, cleaning, cooking, shopping and gardening.
Dr James Bodel in a report dated 28 May 2020 noted that Ms Dolbel had consequential pain and stiffness in the region of the left shoulder. Dr Bodel wrote:
“She has developed some intermittent symptoms in the left shoulder but she has not had any x-rays or ultrasounds and no specific treatment has been offered for the left shoulder. This came on some time in 2019 after she had had her surgery on the right shoulder”.
Dr Bodel wrote:
“She has also developed the consequential slight stiffness in the region of the left shoulder which is probably also due to some tendinitis or bursitis or mild rotator cuff pathology but that yet has not been investigated to be able to confirm that”.
In a report dated 21 November 2021, Dr Bodel made a diagnosis of rotator cuff pathology in both shoulders. He assessed 6% WPI of the left upper extremity (shoulder). No deduction was made for previous injury, pre-existing condition or abnormality.
In a report dated 20 March 2023, Dr Bodel wrote:
“During this prolonged period of disability with her injured right shoulder and arm she was overusing the left arm and the neck and has caused consequential disability associated with aggravation, acceleration, exacerbation and deterioration of some underlying degenerative disc disease and rotator cuff pathology in the left shoulder in my view”.
Dr James Powell in a report dated 3 August 2020 noted that Ms Dolbel had started to develop difficulties in the left shoulder as she “uses her left arm and hand for all activities, complying with the advice of her therapists and doctors to avoid straining the right shoulder while she is trying to rehabilitate it.”
Dr Powell in a report dated 2 May 2022 wrote:
“Initially Ms Dolbel indicated that she had troubles in the left shoulder for 12 months, but her sister reminded her that really, she has had pain symptoms from around 4 months after the initial incident (which would be February 2017).
She mentioned this to her general practitioner who advised her that this was expected due to ‘overuse’, that was necessitated by her right shoulder pain.
She has found symptoms and difficulties at the left shoulder have progressed.
Dr Hartnell also indicated to expect these troubles.
No imaging has been undertaken.
CURRENT SYMPTOMS – LEFT SHOULDER
Ms Dolbel has constant pain about the left shoulder girdle region in a similar distribution to the right, exacerbated with movements of the upper limb at the shoulder, reaching for objects, or trying to lift or carry anything.
….
PREVIOUS HISTORY – LEFT SHOULDER
Prior to onset of symptoms in the left shoulder Ms Dolbel had had no previous injuries nor symptoms at the left shoulder region”.
Dr Powell noted on examination that there was a moderate restriction of motion at the left shoulder. He wrote:
“There is no assessable impairment at the left shoulder, cervical spine, thoracic spine nor lumbar spine, as none of these areas have been medically assessed nor managed and it cannot therefore be determined firstly to have reached maximum medical improvement nor can any work-related component be identified.
At the left shoulder, it was noted at initial assessment (and at other assessments such as that of Dr Bodel) early in her course around 2018, there was slight restriction of range of motion at the left shoulder but no symptoms.
Given the nature of the disease at the right shoulder, it is probable that Ms Dolbel has rotator cuff tendinopathy and degenerate disease at the left shoulder, and this was started to be reflected by a limited range of motion.
She has not, however, had any imaging and so this is purely a clinical appraisal”.
Dr Barbabus Bako, radiologist, in a report of an Ultrasound Left Shoulder dated 4 October 2022, noted minor subacromial bursitis.
The Appeal Panel accepted that Ms Dolbel experienced pain in the left shoulder about four months after the injury on 31 October 2016 and, in particular, after the surgery on her right shoulder. The Medical Assessor noted that Ms Dolbel had two operations, and “then lately, she started to complain of left should problems due to compensation and overuse”. This was not an accurate history.
The Appeal Panel noted that there were no submissions addressing the actual assessment of 3% WPI for the left shoulder. The Appeal Panel accepted the assessment by the Medical Assessor of 3% WPI made in respect of the left shoulder. The question that then needed to be addressed was whether any deduction should be made pursuant to s 323 of the 1998 Act.
Ms Dolbel submitted that evidence before the Medical Assessor did not warrant a deduction pursuant to s 323 of the 1998 Act as evidence before the Medical Assessor did not demonstrate the presence of a pre-existing injury, degenerative condition or abnormality.
However, Dr Bodel has considered that the right shoulder injury caused consequential disability associated with aggravation, acceleration, exacerbation and deterioration of some underlying degenerative disc disease and rotator cuff pathology in the left shoulder. Dr Powell considered that it was probable that Ms Dolbel has rotator cuff tendinopathy and degenerate disease at the left shoulder, but noted there was no imaging. The Ultrasound Left Shoulder on 4 October 2022 reported minor subacromial bursitis, although this investigation was carried out more than five years after Ms Dolbel first noted symptoms in the left shoulder. The Medical Assessor concluded that there was no previous injury, condition or abnormality at Part 8 of the MAC despite making a 10/10th deduction in Table 2. The Medical Assessor did suggest that there might be some restriction of movement in the left shoulder which may be a normal finding for Ms Dolbel. He also suggested that she did not try her best to move although he did not address this under consistency of presentation. The Appeal Panel noted that the Medical Assessor noted that Ms Dolbel complained of pain when he examined the shoulders which explained his impression that she did not try her best to move.
The Medical Assessor did not refer to the earlier report of Dr Powell dated 8 October 2018. The range of movement in the left shoulder reported on examination in that report (which predated any surgery to the right shoulder) showed flexion as 170 degrees, extension as 50 degrees, abduction as 160 degrees, adduction as 40 degrees, external rotation as 50 degrees and internal rotation as 60 degrees. This reported range of movement did not support the conclusion that there was some restriction of movement in the left shoulder which was a normal finding for Ms Dolbel. The Appeal Panel noted that Dr Powell in his next examination of the left shoulder reported on 3 August 2020 (after surgery to the right shoulder) showed flexion as 120 degrees, extension as 50 degrees, abduction as 90 degrees, adduction as 40 degrees, external rotation as 20 degrees and internal rotation as 60 degrees. There had been a considerable deterioration in the range of movement in the left shoulder since the earlier examination reported 8 October 2018. The Appeal Panel does not accept that the findings on examination in the left shoulder made by the Medical Assessor were a “normal” finding for Ms Dolbel as she clearly had a much greater range of movement in 2018.
On balance, the Appeal Panel considered that it was probable that Ms Dolbel had some minor pathology in the left shoulder. However, this condition was asymptomatic and investigation in 2022 only showed minor subacromial bursitis. The Appeal Panel was not satisfied that a pre-existing injury, pre-existing condition or abnormality caused or contributed to the impairment assessed in respect of the left shoulder.
Ground 3 – failure to have regard to Ms Dolbel’s evidence
Ms Dolbel submitted that the Medical Assessor failed to have regard to the evidence of Ms Dolbel that was before him.
The Appeal Panel referred to Ms Dolbel’s evidence above and took her evidence into consideration in making its assessment. In these circumstances and where the Appeal Panel determined that the Medical Assessor made other demonstrable errors in the MAC, the Appeal Panel considered that it was unnecessary to address this ground of appeal.
CONCLUSION
Therefore, the Appeal Panel assessed Ms Dolbel as having 8% WPI of the right upper extremity (shoulder) and 3% WPI of the left upper extremity (shoulder). Therefore, 8% for the right shoulder was combined with 3% for the left shoulder which resulted in a total of 11% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
11 August 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: | W3175/23 |
Applicant: | Elizabeth Dolbel |
Respondent: | Thompson Health Care 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 Medical Assessor Yiu-Key Ho 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 (shoulder) | 31 October 2016 | Figure 16-40,43, 46 | 8% | 0 | 8% | |
| Left upper extremity (shoulder) | 31 October 2016 | Figure 16-40, 43.46 | 3% | 0 | 3% | |
| Cervical Spine | 31 October 2016 | 0% | 0% | |||
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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