Elixir Day Spa Pty Limited v Kathryne Vauvert
[2021] NSWPICMP 83
•2 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Elixir Day Spa Pty Limited v Kathryne Vauvert [2021] NSWPICMP 83 |
| APPELLANT: | Elixir Day Spa Pty Limited |
| RESPONDENT: | Kathryne Vauvert |
| APPEAL PANEL: | Member R J Perrignon Dr Drew Dixon Dr Gregory McGroder |
| DATE OF DECISION: | 2 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of permanent impairment of the right upper extremity; whether Approved Medical Specialist applied clinical judgment in assessing the degree of sensory deficit in the median and ulnar nerves; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer, Elixir Day Spa Pty Limited, appeals from the Medical Assessment Certificate of Approved Medical Specialist Dr Kuru dated 27 January 2021.
The respondent worker, Ms Vauvert, suffered injury to her right upper extremity on 25 March 2014. Approved Medical Specialist Dr Kuru diagnosed a pain syndrome of the right upper limb with sensory change, and assessed a 15% whole person impairment (right upper extremity).
As required by Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines), he rated the impairments resulting from sensory deficit and pain by applying the criteria in Table 16-10a at page 482 of the AMA5. Applying those criteria, he assessed:
(a) a 60% sensory deficit in respect of the median nerve (Grade 3), and
(b) a 25% sensory deficit in respect of the ulnar nerve (Grade 4).
In accordance with table 16-15, he multiplied these by 39% and 7% respectively.
The employer accepts that the assessment of Grades 3 and Grade 4 sensory deficit was appropriate. However, it says that use of the maximum permissible sensory loss in each of those Grades (Grade 3, 60%; Grade 4, 25%) demonstrates error, because the Approved Medical Specialist failed to apply his clinical judgment in assessing the degree of sensory loss, as required by the Guidelines.
It submits that a re-examination is required, because the Approved Medical Specialist did not assess the impact of the impairment on daily activities.
On 23 March 2021, the Registrar’s delegate was satisfied that demonstrable error was made out, and referred the matter to this Appeal Panel for determination.
PRELIMINARY REVIEW
On 12 April 2021, the Appeal Panel conducted a preliminary review of the original medical assessments in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions are summarised above.
In summary, the respondent worker submits that the reasoning of the Approved Medical Specialist provided ample justification for assessing the maximum sensory deficit in respect of each of the two nerves assessed.
REASONING OF THE APPROVED MEDICAL SPECIALIST
The Approved Medical Specialist examined the worker on 15 January 2021. He noted at [4] her complaints of pain and loss of function in the right hand, and that she was: ‘unable to hold her hand in any position’.
He noted numbness of the ulnar two digits of the right hand which initially radiated up the posterior aspect of her arm, and over time radiated across to the median side, leaving her with numbness in the ulnar four digits more so than the thumb.
On physical examination at [5], he noted ‘a tremor affecting the right hand’.
At [7], he diagnosed a pain syndrome associated with sensory change in the right upper limb.
He assessed a 15% whole person impairment (right upper extremity), applying Tables 16-10a and 16-15 of AMA5 in the manner explained above.
As indicated, he assessed a 60% sensory deficit of the median nerve, and a 25% sensory deficit of the ulnar nerve.
He explained his calculations at [10b]:
“With respect to her sensory deficits, she has global numbness in the hand affecting the first and fourth digits more so than the little finger. According to AMA 5 page 482, Table 16.10 and page 492, Table 16.5, I assess her as Grade III sensory deficit to the median nerve below the mid-forearm (point 6 x 39 UEI). I assess her as a Grade IV sensory loss of the ulnar nerve below the mid-forearm (point 25 x 7 UEI) according to the same references. This gives 23% upper extremity impairment combined with 2% upper extremity impairment, which is 25% upper extremity impairment. According to AMA 5 page 439, this converts to a 15% whole person impairment.”
At [10c], he explained that he had ‘found more generalised sensory changes today’ than had Dr Tong, who had assessed a 14% whole person impairment.
He expressed understanding for Dr Rimmer’s ‘reservations in assessing her whole person impairment due to physical disease’, but indicated:
“Ms Vauvert is significantly impaired by symptoms in her upper limb and I believe it is reasonable to proceed with assessment of impairment on the basis of her sensory change”.
FINDINGS AND REASONS
The respondent complains that the Approved Medical Specialist has merely selected the maximum sensory deficit allowable in grades 3 and 4, without applying his clinical judgment.
The task of the Approved Medical Specialist to assess the degree of sensory in respect of each nerve, by having regard to the evidence before him and applying his clinical judgment.
This is what he did. On physical examination, he found the worker to be ‘significantly impaired by symptoms in her upper limb’. That was a finding he was entitled to make, having taken an appropriate history, noted the complaints of sensory loss and conducted a physical examination. When viewed in the context of his other observations and findings, it is consistent, and not inconsistent, with an assessment of 39% sensory deficit in respect of the median nerve, and 25% sensory deficit in respect of the ulnar nerve. Those findings, in our view, were reasonably open on the evidence.
There is no evidence that the Approved Medical Specialist failed to apply his clinical judgment, and we can identify no error.
The appellant does not submit that the Approved Medical Specialist failed to give adequate reasons for his conclusion, but says that a re-examination is required because the activities of daily living have not been assessed.
In any event:
(a) we are satisfied that Dr Kuru made plain the reasons for his assessment;
(b) there is no basis for a re-examination, as we are not satisfied there was error of the kind alleged - namely, a failure to apply clinical judgment in making his assessment; and
(c) there was evidence before the Approved Medical Specialist of the effects on the appellant’s activities of daily living, sufficient for the Panel to take them into account if it were to assess the appellant. These are specifically addressed in her statement dated 6 November 2020.
The Medical Assessment Certificate of Dr Kuru dated 27 January 2021 is confirmed.
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