Eurobodalla Shire Council v Grimstone
[2024] NSWPICMP 95
•22 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Eurobodalla Shire Council v Grimstone [2024] NSWPICMP 95 |
| APPELLANT: | Eurobodalla Shire Council |
| RESPONDENT: | Nikole Grimstone |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 22 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal in respect of the impairment assessment for right upper extremity; appellant employer appealed submitting that the Medical Assessor (MA) should not have made a diagnosis of a brachial plexus lesion and in addition failed to properly consider whether a deductible proportion applied; the Appeal Panel held that the diagnosis of a brachial plexus lesion was open to the MA; the Appeal Panel found that the question of the deduction was not properly considered and a one-tenth deduction should have been applied; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 September 2023 the employer Eurobodalla Shire Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 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 (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 (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.
The appellant did not seek that the worker be subject to a re-examination by a Medical Assessor member of the Appeal Panel. The Appeal Panel found error as set out below but did not consider that a re-examination was necessary as there was sufficient material before the Appeal Panel for it to make a determination.
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.
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 matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 29 March 2017
· Body parts/systems referred: Right upper extremity (shoulder)
Cervical spine
· Method of assessment: Whole person impairment”
The Medical Assessor noted that he had previously assessed the worker in respect of the subject injury and issued a MAC assessing the worker as not having reached maximal medical improvement (MMI) as follows: (emphasis in original)
“Please note that I originally examined Ms Grimstone on 21 November 2022 and forwarded a Medical Assessment Certificate of that consultation. Today’s consultation needs to be read in conjunction with the original report.
By way of summary Ms Grimstone had sustained a traction injury of her right arm on 29 March 2017 with possible shoulder pathology. It was noted that Ms Grimstone’s presentation was entirely consistent.
As noted on clinical examination she had a restricted range of right shoulder movement but was also noted to have hypoaesthesia to pinprick extending from the base of her neck on the right side to the anterior and posterior axial lines, as well as hypoaesthesia to pinprick of the whole of the right upper extremity apart from the medial aspect of her right upper arm (T2).
Most importantly, percussion in the supraclavicular region on the right side produced intense paraesthesias radiating down her arm and into her fingers.
It was my opinion that Ms Grimstone had not reached maximal medical improvement as a firm diagnosis had not been achieved and possible treatment instituted.
It was my opinion that she had had a traction injury of her brachial plexus, evidenced by the clinical findings and I suggested that in my opinion she needed to see a neurologist with a specific request that a brachial plexus lesion on the right side was being considered.
In this regard I note that Ms Grimstone was assessed by Dr R Fitzsimons (neurologist) on 20 January 2023.
In summary with regard to the possibility of there being a brachial plexus traction injury, Dr Fitzsimons noted that Ms Grimstone was due to see a treating neurologist who would undertake specific testing for a brachial plexus lesion and she indicated that ‘it is not appropriate to consider WPI in relation to the brachial plexus until a diagnosis is established’.
Importantly on clinical examination Dr Fitzsimons noted that:
· Ms Grimstone experienced ‘zingers’, which she experienced several times a day or several times a week and these were ‘classical brachial plexus stretch injuries’.
· Dr Fitzsimons noted that eliciting of symptoms in a C6 distribution on palpation in the supraclavicular fossa could also be easily consistent with a brachial plexus lesion. Dr Fitzsimons does note that the difference in response to our examinations was puzzling and possibly ‘suggests involvement of a different part of the brachial plexus…’.
· Dr Fitzsimons also notes that the nature of her injury ‘which appears to have been a traction injury, with her right arm outstretched as she moved a heavy dead animal, would also be consistent with a brachial plexus lesion’.
· Dr Fitzsimons then goes on to note ‘what is more difficult to explain is the impaired sensation over the entire right arm (albeit appropriately excluding the region of T2 dermatome), and as also observed by Dr Champion, is difficult to explain on the basis of “partial” brachial plexus pathology. Could theoretically be explained by very extensive lesion of the brachial plexus (C5 to T1), but there would not be strong collateral evidence for such extensive pathology, which would almost certainly be obvious on neurophysiological testing, as well as on objective clinical examination’.
· It was noted on examination that the right triceps reflex was possibly marginally less brisk than the left – ‘of questionable significance’.
· Dr Fitzsimons also noted severe weakness of the interossei muscles of the right hand and that finger abduction was easily overcome.
· Dr Fitzsimons notes that the right upper arm measured 0.5cm less than the left in the mid upper arm, noting that Ms Grimstone is right side dominant.
Following Dr Fitzsimons’ examination I note that Ms Grimstone was assessed by
Dr Candice Delcourt (consultant neurologist), and I note Dr Delcourt’s report of 21 June 2023 notes that ‘on clinical examination power assessment is limited by pain with some weakness in abduction and biceps flexion’.Dr Delcourt goes on to note that ‘there is diffuse decreased sensation in the right upper limb to pinprick and light touch’. She notes that ‘This does not fit a radicular demography’.
Most importantly Dr Delcourt does not note the normal sensation in the medial aspect of the right upper arm which is in the distribution of T2, and not involving the brachial plexus, and has been found by the other specialists who examined Ms Grimstone. It would seem then that Dr Delcourt did not see the reports of Dr Fitzsimons or of my own, or of those of Dr Champion.
Dr Delcourt goes on to note that she carried out nerve conduction studies which did not confirm a brachial plexus injury.”
The Medical Assessor went onto carry out an assessment of the referred body parts as a result of injury on 20 March 2017 and issued a MAC as follows:
| 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 upper extremity (shoulder) | 29/03/17 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 21% | nil | 21% |
| Cervical spine | 29/03/17 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 0% | not applicable | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 21% | |||||
The Medical Assessor considered that there was no applicable deduction for any pre-existing injury, condition or abnormality.
The employer appealed.
The appeal concerns only the assessment of 21% whole person impairment (WPI) for the right upper extremity. The failure of the Medical Assessor to make a s 323 deduction is also the subject of complaint in appeal.
It is noted that there is no appeal from either party about the assessment of 0% WPI for the cervical spine which was assessed as 0% in the MAC of Medical Assessor Fitzsimons and subject to a certificate of determination (COD) issued by the Personal Injury Commission (Commission) on 23 March 2023 which included the following:
“1. The worker suffers 0% WPI for the cervical spine injury on 29 March 2017.
2. The worker has no entitlement to lump sum compensation in respect of the cervical spine injury on 29 March 2017.”
The COD dated 23 March 2023 also included the following orders:
“3. The worker did not reach MMI in respect of the right shoulder and brachial plexus injury resulting from injury on 29 March 2017.
4. The proceedings may be restored once the worker has reached MMI in respect of the right upper extremity.”
The proceedings were duly restored on the application of the worker and Medical Assessor Pillemer conducted a further examination and issued the MAC dated 5 September 2023 as set out above.
In summary, the appellant made submissions in support of their contention that the Medical Assessor had made an assessment on the basis of incorrect criteria and had made demonstrable errors which included the following:
(a) in declining to make a deduction under s 323 and providing no explanation for declining to do so despite there being evidence to support a deduction, and
(b) in making an assessment on the basis of a brachial plexus injury when he was not entitled to do so because it is an unconfirmed diagnosis, he is the only doctor who has diagnosed this condition and the impairment assessment of that condition should not be made by him as an orthopaedic surgeon.
The appellant seeks that the Appeal Panel remove the assessment in respect of the brachial plexus injury leaving only the assessment of based upon Range of Movement (ROM) and the appellant submitted:
“…a revised MAC be issued, deleting the assessment of permanent impairment to the right upper extremity as a result of grade 4 motor and sensory involvement. The appellant submits the assessment in respect of the right upper extremity should be contained to Dr Pillemer’s assessment relative to restricted range of motion (13% upper extremity impairment) which equates to 8% WPI (subject to any section 323 deduction which may apply)...”
In summary, the worker Nikola Grimstone (the worker) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make a demonstrable error and the MAC should be confirmed.
In summary, the worker made submission which included the following:
(a) the diagnosis of a brachial plexus was open to the Medical Assessor on clinical grounds and was consistent with other evidence before him and as the matter was referred to him as the Medical Assessor by the Commission he was entitled to make that assessment;
(b) there is no deductible proportion because the impairment results from the brachial pluxus injury;
(c) if the impairment results from more than the brachial plexus injury, there is no evidence that there was loss of ROM prior to the subject injury and there should be no deduction, and
(d) if a deduction is made, it should be no more than one-tenth.
The Appeal Panel notes that as well as the history set out above, the Medical Assessor took a history on examination as follows:
“Ms Grimstone attended with her husband today and I read her the history she gave me when I first saw on 22 November 2022, and she feels things are very much the same. If anything the discomfort in her right shoulder region is getting slightly worse and in fact since yesterday after driving up from Bermagui, her shoulder has been significantly aggravated.
Her treatment remains the same as when last seen, and she continues to work in her husband’s business doing office duties, and still working for approximately 15 hours a week, and managing with this but with significant ongoing discomfort.
I read her the restrictions with regard to ADLs as described to me some nine months ago, and she remains with very much the same restrictions.”
The Medical Assessor recorded of his physical examination the following:
“Ms Grimstone is once again noted to be an adult female being protective her right shoulder region, and undressing and dressing avoiding excessive movements of her right shoulder.
She again has a good range of cervical movements and a full range of left shoulder movement, but as mentioned has significant restriction of her right shoulder movements today following the aggravation since yesterday. Because of her significant symptoms, and as to avoid aggravating these, I elected not to pursue examination of the right shoulder, and instead will rely on my findings when I examined Ms Grimstone on 21 November 2022. These figures are indicated in the Table below.
Right Shoulder Movements
Movement
Range
% Upper extremity impairment
Flexion
110°
5
Extension
30°
1
Abduction
80°
5
Adduction
30°
1
Internal rotation
70°
1
External rotation
70°
0
Total
13%
Once again Ms Grimstone has hypoaesthesia to pinprick extending from the base of the neck on the right side over the anterior and posterior shoulder regions to the axial lines as noted previously, with distinct cut-off points.
In addition there is hypoaesthesia to pinprick of the whole of the right upper extremity apart from the medial upper arm in the T2 distribution. Most importantly percussion in the supraclavicular region on the right side once again produces intense paraesthesias radiating down her right arm and into the fingers of her right hand.
In my opinion there was once again some generalised weakness of the muscles in her right arm.”
Of the special investigations the Medical Assessor noted as follows: (emphasis in original)
“As noted Ms Grimstone had nerve conduction studies carried out by Dr Candice Delcourt on 16 June 2023 and the neurologist suggested right sided median sensory neuropathy but that the level of injury could not be determined because of the absence of slowing of conduction. Dr Delcourt did however suggest that ‘there is no electrophysiological evidence of right brachial plexus injury’.”
The Medical Assessor explained his assessment of permanent impairment as follows:
“a) My opinion and assessment of permanent impairment and or whole person impairment:
In my opinion then Ms Grimstone does have evidence of a brachial plexus lesion on the right side which in my opinion has components of both sensory and motor involvement. With regard to the nerve conduction studies, in my opinion this is a clinical diagnosis and one would have been hopeful that nerve conduction studies would have confirmed the diagnosis, but as they do not, it remains my opinion that her ongoing symptoms are as a result of a brachial plexus injury on the right side.
b) An explanation of my calculations in addition to the worksheet or actual calculations attached
As noted Ms Grimstone is entitled to 13% upper extremity impairment due to the restricted range of right shoulder movement(1).
With regard to the brachial plexus involvement, in my opinion the whole plexus is involved which gives a combined 100% upper extremity impairment due to motor and sensory deficit(2).
I would place Ms Grimstone in Grade 4 motor and sensory involvement with 25% deficit, giving a final total of 25% upper extremity impairment(3).
Combining the 25% with the 13% for the restricted range of movement gives a figure of 35% upper extremity impairment, which in turn equates with 21% WPI.
In my opinion Ms Grimstone falls into DRE Category I of her cervical spine(4, with no additional impairment in relation to her cervical spine.
Please note that I would not make any deductions for pre-existing condition.
AMA Guides to the Evaluation of Permanent Impairment, 5th Edition:
(1) Pages 476 to 479, Figures 16-40 to 16-46.
(2) Page 490, Table 16-14.
(3) Page 482, Tables 16-10 and Table 16-11.
(4) Page 392, Table 15-5.”
The Medical Assessor made further brief comment on the other medical evidence as follows:
“As noted I have commented on the opinions of Drs Fitzsimons and Delcourt in the introduction of this Medical Assessment Certificate. As noted my opinions differ from those suggested by Dr Delcourt, whereas Dr Fitzsimons certainly noted features which she felt could be in keeping with a brachial plexus lesion.”
Turning first to the issue of the diagnosis that the worker had suffered a brachial plexus injury and made an assessment of permanent impairment as a result.
The Appeal Panel considers that a diagnosis that the worker suffered a brachial plexus injury was open to the Medical Assessor in the exercise of his clinical judgment as the Medical Assessor appointed by the Commission to conduct the impairment assessment of the right upper extremity.
The Appeal Panel notes that the Medical Assessor has made a considered diagnosis based upon clinical grounds that he has explained in sufficient and adequate detail for it to be understood how he has arrived at that diagnosis. The Medical Assessor has noted that
Medical Assessor Fitzsimons, neurologist, noted features on her examination of the worker that she considered could be in keeping with a brachial plexus lesion. The Appeal Panel also notes that Dr Champion, rheumatologist, noted that there were features consistent with a brachial plexus lesion. It is also noted that the worker’s treating general practitioner
Dr Nickolic had also felt that her presentation as consistent with a brachial plexus lesion.
The appellant complained only about the diagnosis of a brachial plexus injury in the sense that the appellant submitted the impairment assessed as a result of the brachial plexus injury should be removed from the assessment. But if the diagnosis of a brachial plexus injury is allowed to stand there is no complaint about the extent of the overall impairment of 25% UEI (upper extremity impairment) that was assessed as a result.
The Appeal Panel considers that there were sufficient clinical signs to support a diagnosis of brachial plexus injury and that it was open to the Medical Assessor in the exercise of his clinical judgment and the Appeal Panel will not accordingly interfere. This means that the 25% UEI stands in respect of the brachial plexus condition.
The next ground of appeal is in relation to the failure by the Medical Assessor to make a deduction and failure to explain why a deduction would not apply. The Medical Assessor did not explain why he made no deduction, he simply said it did not apply. In circumstances where there is clear history of a prior injury to the right shoulder and investigations showing the presence of degenerative change, it was in error for the Medical Assessor not to explain the conclusion that he reached that a deductible proportion did not apply.
A deduction can only be made if the pre-existing condition of the right upper extremity has contributed to the level of permanent impairment assessed and where the extent of the deduction is too difficult or costly to determine, it will be one-tenth unless a deduction of one-tenth is at odds with the available evidence. The Medical Assessor failed to explain why a deductible proportion did not apply. Here the available evidence supports a deduction of one-tenth because there is evidence that the worker previously came to surgery on the right shoulder and had persisting symptoms. A component of the assessment for the right upper extremity (leaving aside the assessment for the brachial plexus injury) is based upon ROM. This was found to be 13% UEI based on ROM. A deduction should on the available evidence apply to this component but not to the component based on the brachial plexus injury.
This means that UEI of 13% with a deductible proportion of one-tenth gives a 12% UEI. This assessment is combined to the 25% WPI assessed for the brachial plexus injury, giving 34% UEI (under combined values) or 20% WPI.
This means that a new MAC will be issued as follows:
| 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 upper extremity (shoulder) | 29/03/17 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 20% | Note a 1/10th deduction already applied to the upper extremity impairment prior to the WPI calculation | 20% |
| Cervical spine | 29/03/17 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 0% | not applicable | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
For these reasons, the Appeal Panel has determined that the MAC issued on
5 September 2023 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: | W4967/22 |
Applicant: | Nikole Grimstone |
Respondent: | Eurobodalla Shire Council |
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 Roger Pillemer 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 upper extremity (shoulder) | 29/03/17 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 20% | Note a 1/10th deduction already applied to the upper extremity impairment prior to the WPI calculation | 20% |
| Cervical spine | 29/03/17 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 0% | not applicable | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
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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