Donnelly v Camsons Pty Ltd
[2021] NSWPICMP 3
•4 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Donnelly v Camsons Pty Ltd [2021] NSWPICMP 3 |
| APPELLANT: | Shaun William Donnelly |
| RESPONDENT: | Camsons Pty Ltd |
| APPEAL PANEL: | Catherine McDonald Dr John Ashwell Dr Philippa Harvey- Sutton |
| DATE OF DECISION: | 4 March 2021 |
CATCHWORDS: | WORKERS COMPENSATION- worker suffered a shoulder injury washing a truck; accepted consequential condition in cervical spine; worker accepted AMS finding of 10% WPI re left shoulder but disputed assessment in DRE Cervical Category I; application of AMA5 and Guidelines; Held- no error in assessment in DRE Cervical Category I; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 December 2021 Shaun Donnelly lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Ian Meakin, an Approved Medical Specialist (AMS) under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 4 December 2021.
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 Registrar was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that the MAC contains a demonstrable error. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The Workers Compensation Medical Dispute Assessment Guidelines 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 those guidelines.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Donnelly suffered an injury to his left shoulder on 25 February 2013 when he slipped from a ladder whilst washing a truck. Dr W Kuo diagnosed an anterior labral tear and on 3 July 2013, Mr Donnelly underwent a left shoulder arthroscopy with labral repair and subacromial decompression. He suffered a consequential condition in his cervical spine.
Dr Kuo performed a further arthroscopy on 15 June 2016, when he inspected and debrided the glenohumeral joint and subacromial space and undertook a synovial biopsy, repeat subacromial decompression and biceps tenodesis.
Mr Donnelly was treated by Prof T Boesel for pain management.
The AMS assessed 10% whole person impairment (WPI) in respect of Mr Donnelly’s left upper limb (shoulder) and Mr Donnelly does not make any complaint in respect of that assessment. The AMS assessed Mr Donnelly in Cervical Category DRE I resulting in 0% permanent impairment and the appeal relates only to that assessment.
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 Workers compensation medical dispute assessment guidelines.
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 there is no error in the MAC.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
The parts of the medical certificate given by the AMS 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.
In summary, Mr Donnelly submitted, in submissions prepared by his solicitor, Mr Fogarty, said that the AMS was in error in failing to assess the consequential condition in his cervical spine in DRE Cervical Category II. He submitted that the sensory loss in his neck, and left shoulder and intermittent episodes and paraesthesia and feeling that his left hand is sweaty, constituted non-verifiable radiculopathy so that he should have been assessed in DRE Cervical Category II. Once that assessment was made, Mr Donnelly submitted that the AMS should have assessed at least 2% for the impact of the impairment on his activities of daily living.
In reply, Camsons Pty Limited (Camsons) submitted, through its solicitor Ms Whiting, that the AMS had correctly assessed Mr Donnelly in DRE Cervical Category I.
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[1] [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.
[1] [2006] NSWCA 284.
The MAC
The AMS summarised the history of treatment. He recorded Mr Donnelly’s present symptoms:
“Mr Donnelly continues to complain of significant discomfort over the anterior aspect of his left shoulder and intermittently into the upper arm. He states the pain also radiates towards the side of his neck. There have been some intermittent episodes of paraesthesia of the fingers which was not present today. He states that he feels that his left hand is sweaty.
Today Mr Donnelly states that he is able to drive a car short distances. He has not been able to return to work. He believes that overall his symptoms are not improved.”
The AMS set out his findings on examination. With respect to the cervical spine he wrote:
“Examination of the cervical spine reveals no evidence of palpable or paravertebral muscle spasm or guarding. He has a symmetrical restriction of active range of motion of the cervical spine to two-thirds of normal anticipated range referencing flexion and extension and lateral flexion and rotation to the right and left.
There is a full range of symmetrical right and left wrist, elbow, hand and finger movements. He stands erect but demonstrates very little movement of his left arm when he walks.”
The AMS recorded the range of movements of Mr Donnelly’s shoulders. He described the deep tendon reflexes and the measurement of Mr Donnelly’s forearms. He said:
“On sensory examination, however, there is a partial sensory loss over the whole of the left anterior abdominal chest wall and also reciprocal posterior aspect of the thoracic wall and posterior abdominal wall along with a full symmetrical partial loss of sensation over the entire left arm and forearm and all aspect of the left hand and fingers. This sensory examination was carried out on two occasions with the same result.
The sensory partial loss also extends up to the left side of the anterior lateral and posterior cervical neck but again reverting to normal beyond the mid-line towards the right. This finding is totally non-anatomic.
He had normal sensation in the lower extremities and demonstrated a negative straight leg raising test on the right and left side in the sitting position. He reports no symptoms in the lower extremities.”
The AMS considered the scans and investigations including an MRI scan of the cervical spine and brachial plexus dated 16 October 2017 which found no abnormality in the brachial plexus and a normal cervical spine. A CT scan of the cervical spine dated 24 January 2020 was also unremarkable with no described pathology.
The AMS said that Mr Donnelly had a soft tissue injury to his cervical spine and he continued to have discomfort with a symmetrical range of motion.
Explaining his calculations with respect to the cervical spine, the AMS said:
At the time of today’s assessment there is a symmetrical loss of active range of motion of the cervical spine with no evidence of palpable or paravertebral muscle spasm or guarding. Sensory issues relating to the left hemi-upper body and left upper extremity are entirely nonanatomical.
I find no other neurological impairment on assessment relating to the upper
extremities and referencing the cervical spine.Therefore with reference to the Guidelines and Table 15.5 AMA 5, at the time of today’s assessment the Applicant demonstrates a DRE Cervical Category I impairment 0% whole person impairment. No assistance is obtained from the continued normality of the cervical spine scanning. There is no loss or asymmetry of reflexes or evidence of muscle weakness or muscle wasting that can be anatomically localised to appropriate spinal nerve root distribution or not explained by the Applicant’s right-handedness. In my opinion the definition of radiculopathy as set out in Item 4.27 of the Guidelines is not met.”
AMA 5 and the Guidelines
It is important to remember that assessment of 0% WPI in DRE Cervical Category I is not the same as a finding that there was no injury. It is accepted by Camsons and by the AMS that Mr Donnelly has a consequential condition in his cervical spine. In assessing that condition, the AMS needed to take care to distinguish the signs and symptoms which resulted from the left shoulder injury (such as wasting) and those arising from his cervical spine.
The Guidelines prescribe the method of assessment of permanent impairment, drawing on AMA 5. They say:
“Where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.”[2]
[2] Paragraph 1.1.
The principles of assessment stress that the AMS is conducting an examination “of the claimant as they present on the day of assessment…”[3]
[3] Paragraph 1.6.
Chapter 4 of the Guidelines deals with the spine and adopts the Diagnosis-Related Estimates (DRE) method in chapter 15 of AMA 5. The assessment is made on the basis of a physical examination.
The method of assessment is described at paragraph 15.3 in AMA 5. It says:
“In assigning the individual to the correct DRE category, one of two approaches is used. The first is based on symptoms, signs and appropriate test results. The second is based on the presence of fractures and/or dislocations, with or without clinical symptoms…”
As Mr Donnelly did not suffer a fracture or dislocation of his neck, the first method is used. AMA 5 then goes on to describe the symptoms, signs and tests used. The examination by the AMS was carried out by reference to those definitions.
The criteria for a rating in DRE Cervical Category I are:
“No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures.”[4]
[4] Table 15-5.
The Guidelines provide:
“DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present. In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips. In assigning category DRE II, the assessor must provide detailed reasons why the category was chosen.”[5]
[5] Paragraph 4.18.
The AMS considered but did not observe muscle spasm or muscle guarding. He said that there was a symmetrical loss of active range of motion of Mr Donnelly’s cervical spine.
The Guidelines set out the criteria for the diagnosis of radiculopathy – the impairment caused by malfunction of a spinal nerve root or nerve roots.[6] With respect to non-verifiable radiculopathy – relevant for DRE Category II, they provide:
“Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”[7]
[6] Paragraph 4.27.
[7] Paragraph 4.28.
AMA 5 provides that non-verifiable pain is “pain that is in the distribution of a nerve root but has no identifiable origin.”
Both AMA 5 and the Guidelines make clear that non-verifiable radicular pain must be in the distribution of a particular spinal nerve root. That is the relevance of the AMS’s finding that Mr Donnelly’s sensory loss was “totally non-anatomic.”
Even if the AMS had observed non-verifiable radiculopathy, that would not, of itself, have resulted in an assessment in DRE Cervical Category II. The AMS was required to exercise his clinical judgement to determine, on balance, which category Mr Donnelly should be assessed in.
The AMS correctly applied the Guidelines and AMA 5 and his assessment of Mr Donnelly’s cervical spine does not disclose an error.
The fact that other assessors on different days may have come to a different conclusion does not mean that the AMS was in error. The AMS considered the reports of other examiners and explained where their findings differed from his.
Because Mr Donnelly was correctly assessed in DRE Cervical Category I, there is no loading applied for the impact of the impairment on his activities of daily living. [8] Mr Donnelly’s submissions conceded this was the case.
[8] Guidelines paragraph 4.33.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 December 2020 should be confirmed.
0