Freckelton v Secretary (Department of Communities and Justice)
[2023] NSWPICMP 110
•28 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Freckelton v Secretary (Department of Communities and Justice) [2023] NSWPICMP 110 |
| APPELLANT: | Julie Freckelton |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 28 March 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Whether Medical Assessor (MA) provided any or adequate reasons for his assessment of the appellant’s permanent impairment relating to the compromise of the appellant’s activities of daily living (ADLs); whether the MA provided any or adequate reasons for his assessment of the appellant’s permanent impairment relating to the thoracic spine; whether the MA erred, with respect to his assessment of the appellant’s permanent impairment relating to her lumbar spine, by concluding the appellant did not have radiculopathy; whether MA erred by not referring to the ultrasound of the appellant’s right shoulder when assessing the appellant’s permanent impairment of her right upper extremity; Held – Appeal Panel considered MA was correct to conclude the appellant did not have radiculopathy; Appeal Panel considered the ultrasound was irrelevant to the assessment of the appellant’s permanent impairment; Appeal Panel determined the MA did not adequately explain his reasoning with respect to his assessment of the appellant’s permanent impairment relating to her ADLs and thoracic spine; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 December 2022 Julie Freckelton, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yui-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
4 November 2022.The appellant relies on the following grounds for 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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment as a case worker in August of 2005 with the New South Wales Government working in what was then known as Department of Family and Community Services, and which the Appeal Panel understands is now known as the Department of Communities and Justice. The Secretary of that department (the respondent) is in accordance with s 26(1) Part 1 of Schedule 1 of the Government Sector Employment Act 2003 her employer.
On 24 July 2017 the appellant was conducting a home visit as part of her employment duties. She slipped on uneven ground falling forward. She suffered injuries to her right ankle, right knee, right shoulder and back.
Orthopaedic surgeon, Dr Mathew Giblin examined the appellant on 27 July 2020 at the request of her solicitors. In a report dated 30 August 2021 Dr Giblin advised the appellant’s solicitors that, based on his examination of the appellant on 27 July 2020, he assessed the appellant had 21% whole person impairment (WPI) from her injury. That assessment comprised 5% WPI relating to the appellant’s thoracic spine, 7% WPI relating to her lumbar spine, which included 2% WPI for the effect her lumbar spine impairment had on her activities of daily living, 2% WPI for her right knee, 3% WPI for her right ankle and 6% WPI for her right shoulder. Dr Giblin noted that, in accordance with the Combined Value Chart of AMA5, those impairments combined to 21% WPI.
On 8 October 2021 the appellant’s solicitors wrote to the respondent’s insurer notifying it that the appellant claimed compensation from it under s 66 of the Workers Compensation Act1987 for 21% WPI. It enclosed with its letter copies of Dr Giblin’s report of 30 August 2021 and an earlier report of Dr Giblin dated 27 July 2020, which he produced following his examination of the appellant on that date. The appellant’s solicitors notified the respondent’s insurer that the appellant relied on those reports to support her claim.
The respondent’s solicitors thereupon organised for the appellant to be examined by orthopaedic surgeon Dr Frank Machart, which occurred on 10 May 2022. In a report dated 20 May 2022 Dr Machart advised that he assessed the appellant had 3% WPI from the injury she suffered on 24 July 2017 to her right ankle. Dr Machart advised he assessed the appellant had 0% WPI relating to her thoracic spine, 0% WPI relating to her lumbar spine and 0% WPI relating to her right shoulder.
A medical dispute consequently arose between the parties, prompting the appellant to initiate proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation under s 66.
On 14 October 2022 a delegate of the President referred the matter to the Medical Assessor to assess. As mentioned, the Medical Assessor issued the MAC on 4 November 2022, in response to that referral. In that he certified he had assessed the appellant had 12% WPI from her injury, comprising 1% WPI relating to her right upper extremity, 6% WPI relating to her right lower extremity, 5% WPI relating to her lumbar spine and 0% WPI relating to her thoracic spine. The Medical Assessor explained he had assessed the appellant’s total WPI relating to her lumbar spine with 6%, which included 1% for the compromise of her activities of daily living. He also explained that he had assessed the appellant’s total WPI relating to her right lower extremity was 7%. He considered however that the appellant had a pre-existing conditions in both her lumbar spine and right knee and ankle which contributed to her impairment in these body parts, and for which he made a deduction under s 323(1) of the 1998 Act of one-tenth, and hence his assessment that her impairment from her injury with respect to her lumbar spine was 5% WPI and with respect to her right lower extremity was 6% WPI.
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 the appellant should undergo a further medical examination. This is because the Appeal Panel, for reasons it will explain below under the heading “findings and reasons”, considered the Medical Assessor had made an error with respect to his assessment of the appellant’s impairment relating to her thoracic spine and with respect to his assessment of the effect of her lumbar spine impairment on her activities of daily living, and in order for the Appeal Panel to correct those errors it was necessary for the appellant to be examined again. The Appeal Panel appointed Dr John Brian Stephenson, one of its members, to conduct that examination. He did so on
8 March 2023. His report to the Appeal Panel is also set out below under the heading findings and reasons.
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 Medical Assessor examined the appellant on 31 October 2022. He noted in the MAC that the appellant had reported her present symptoms comprised pain in her right shoulder with stiff movement of the joint and the joint not being strong. He noted that the appellant complained of pain in her lower back radiating from the back to the lumbar sacral junction and sometimes down to her right thigh. He noted that the appellant could walk for only 15 minutes and could sit to drive for only 15 minutes. He noted the appellant experienced anterior and medial joint line pain with stiffness in her right knee. He noted that the appellant experienced stiffness and pain over the medial aspect of her right ankle.
The Medical Assessor recorded the following findings from his physical examination of the appellant:
“On inspection of both shoulders, I cannot see any obvious muscle wasting, there is no
deformities and both shoulders demonstrate stiffness, slightly worse on the right side. The range of movement are as follows:
Right
Left
Flexion
1100
1200
Extension
300
300
Abduction
1100
1200
Adduction
200
300
External Rotation
600
800
Internal Rotation
700
800
There is no obvious weakness in the various rotator cuff components, comparing the right and the left, and the movement cannot be improved passively on either side. On walking, she walked with a normal gait. Looking at the low back, most of the pain stayed in the lumbosacral junction, more to the right side around the SI joint area. Movement was restricted, fingers can only touch upper shin on flexion, also extension, sideward flexion and rotation were all restricted with some asymmetrical loss, more restriction with sideward flexion and rotation to the right. Straight leg raising is 70˚, there is no neurological deficit in both lower limbs in terms of motor power, sensation and reflex jerk. The right knee doesn’t show any obvious deformities or swelling but shows some decrease of movement compared to the left. Both can extend to full which is 0˚ while the right knee flexion was 100˚ and the left 110˚ with some medial joint line tenderness but there is no ligamental laxity. Examination of the ankles confirmed right ankle has loss of extension, it is 0˚ on the right but the left is 15˚ and the flexion for both is 30˚ and inversion they both are more than 20˚ and eversion also more than 10˚. There is no ligamental laxity but some tenderness on palpation of the medial side of the
ankle joint space. There is no tenderness on the thoracic spine, it seems to have good range of movement on rotation and chest expansion.”
The Medical Assessor provided a brief summary of the relevant radiological investigations the appellant had undergone. The Medical Assessor expressed the view that the appellant had suffered soft tissue injuries of the right shoulder, right ankle and right knee and lower back pain from the fall she had on 24 July 2017.
With respect to his assessment of the degree of the appellant’s permanent impairment from her injury, the Medical Assessor expressed the view that the appellant’s impairment of the lumbar spine correlated with DRE lumbar category II which attracted a base rating of 5% WPI. The Medical Assessor said that he thought another 1% WPI ought to be added in accordance with paragraph 4.34 of the Guidelines. As earlier said, he considered that the appellant had pre-existing degenerative changes in her lumbar spine and he considered that a proportion of her permanent impairment relating to her lumbar spine was due to that. He consequently deducted 10% off her overall permanent impairment relating to her lumbar spine when assessing the degree of permanent impairment the appellant had from her injury relating to her lumbar spine.
The Medical Assessor explained that the appellant’s flexion to 100˚ in her right knee rated 4% WPI in accordance with AMA 5 Table 17-10. The Medical Assessor explained that the difference of extension between the appellant’s right ankle and her left ankle rated 3% WPI in accordance with AMA 5 Table 17-11.
The Medical Assessor further explained that the appellant’s upper limb impairment relating to her right shoulder was, based on his findings from his examination, 11% and that her upper limb impairment of her left shoulder was 9%. He explained these were computed by reference to figures 16-37, 16-46 and 16-43 of AMA 5. The Medical Assessor observed that the difference between those two limbs was 2% upper limb impairment which converted to 1% WPI. It is implicit that he considered that the difference between the appellant’s movement of her right arm and the movement of her left arm was the basis upon which her post-injury permanent impairment relating to her right shoulder should be assessed and hence he considered that the overall impairment of the appellant’s right shoulder post-injury was 2% WPI.
The Medical Assessor explained that the appellant’s limited flexion of her right knee to 1000 rated 4% WPI in accordance with Table 17-10 of AMA 5. The Medical Assessor noted that the appellant’s loss of extension of her right ankle, when compared to her left, rated 3% WPI in accordance with Table 17-11 of AMA 5. He observed that the appellant’s overall post-injury impairment of her right lower extremity was 7% WPI.
The Medical Assessor explained that the appellant had pre-existing problems with her right shoulder, right knee and right ankle. He considered that the pre-existing condition in those joints contributed to her post-injury impairment to the extent of 10%. He noted that when a deduction was made for that proportion with respect to the right shoulder the appellant’s overall impairment would remain at 1% WPI, but with respect to the right lower extremity her overall impairment of 7% WPI, comprising 4% WPI for the right knee and 3% WPI for the right ankle, would reduce to 6% WPI.
As indicated above he assessed her permanent impairment with respect to the thoracic spine to be 0%. He indicated that that assessment was based on Table 15-4 of AMA 5. He did not express any reason for that assessment, although the Appeal Panel does note that the findings he recorded from his examination of the appellant’s thoracic spine indicated that he found no tenderness and that the appellant had “good range of movement on rotation and chest expansion”.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor did not provide adequate reasons for finding that the compromise of her activities of daily living due to her lumbar spine impairment attracted the rating of 1% WPI only. The appellant submitted that it ought to be 2% WPI on the basis that her ability to walk a reasonable distance had been compromised. The appellant also submitted that the Medical Assessor did not make any enquiry of her regarding whether she could undertake personal care activities.
The appellant also submitted that the Medical Assessor failed to provide any reasons for assessing she had 0% WPI of her thoracic spine. The appellant submitted that the Medical Assessor failed to explain why he disagreed with Dr Giblin’s finding that she had 5% WPI relating to the thoracic spine.
The appellant referred to a report from her neurosurgeon Dr Ralph Mobbs to her general practitioner (GP) dated 25 January 2018 and submitted that report “highlighted that the radiology showed ... nerve root pathology at L5/S1”. The appellant submitted that this finding coupled with the Medical Assessor’s finding that she had asymptomatic loss of movement of her lumbar spine constituted radiculopathy. The appellant submitted that the Medical Assessor erred by not finding she had radiculopathy.
The appellant submitted that the Medical Assessor fell into error by failing to take into account an ultrasound of her right shoulder dated 6 December 2018 which revealed subacromial bursal thickening. The appellant also submitted that the Medical Assessor made no reference to an MRI of her cervical spine, but did not specify what error the Medical Assessor made due to that.
In reply, the respondent noted that the appellant’s impairment relating to the compromise of her activities of daily living was limited to her having a sore back that restricted her standing and walking. The respondent submitted that 1% WPI for restrictions in activities of daily living is associated with a worker being unable to participate in his or her usual recreational activities and that this is what the Medical Assessor found with respect to the appellant. The respondent submitted that in order for the appellant to have obtained 2% WPI for the restrictions of her activities of daily living the Medical Assessor would have needed to find the appellant was unable to perform various tasks around her household.
The respondent submitted that based on the appellant’s evidence, some of her restrictions of her activities of daily living are related to her inability to use her arms above her shoulder, which is not related to the appellant’s lumbar spine injury. The respondent noted that
Dr Machart had obtained a history of the appellant being able to work for many years after the injury and had ceased her work due to a psychological injury. The respondent submitted that this is “compatible with there being a 0% WPI associated with restrictions of the appellant’s activities of daily living due to a spinal injury”.The respondent submitted that the Medical Assessor was not required to express a view as to why his assessment differed from Dr Giblin.
With respect to the Medical Assessor’s assessment of the appellant’s impairment of her thoracic spine, the respondent noted that the Medical Assessor found the appellant had no tenderness of the thoracic spine and had a good range of movement on rotation and chest expansion. The respondent submitted that “the MA did not observe any restriction of the thoracic spine”. The respondent also noted that the Medical Assessor commented that the radiology findings showing degeneration were “likely incidental”. The respondent submitted that the Medical Assessor provided a reasoned basis for his assessment of the thoracic spine.
With respect to the Medical Assessor’s assessment of the appellant’s impairment of her right upper extremity, the respondent submitted that the Medical Assessor was not required to refer to every piece of evidence. The respondent noted that the Medical Assessor assessed the appellant’s impairment of her right upper extremity based upon the restricted movement of her right shoulder. The respondent submitted that in that circumstance the identification of bursitis in a three year old ultrasound was irrelevant to the assessment of impairment.
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.
The Appeal Panel does not accept the appellant’s submissions to the effect that the Medical Assessor erred by not finding that she had radiculopathy. Paragraph 4.27 of the Guidelines stipulate the criteria for a conclusion to be made that radiculopathy is present. Three of those criteria, being those shown in bold, are expressed to be major criteria. In order for a conclusion to be made that radiculopathy is present two or more of the criteria must be found, one of which must be a major criteria.
The Appeal Panel observes that the Medical Assessor’s examination of the appellant’s lumbar spine revealed that the appellant had normal reflexes in her lower limbs and had no muscle weakness and normal power. The Medical Assessor’s examination revealed that the appellant had normal sensation in her lower limbs, in other words she did not have any impairment of sensation that was anatomically localised to an appropriate spinal nerve root distribution. Hence, based on the Medical Assessor’s findings from his examination of the appellant’s lumbar spine, which are not challenged, there is no basis upon which the Medical Assessor could find that the appellant had radiculopathy because his examination did not establish the presence of one of the major criteria enumerated in paragraph 4.27 of the Guidelines.
The Appeal Panel also does not accept the appellant’s submissions that the Medical Assessor erred with respect to his assessment of her impairment of the right upper extremity. The Appeal Panel accepts the respondent’s submission on this matter. The method by which the Medical Assessor assessed the appellant’s impairment of her right upper extremity, being restricted range of motion of the joint, was the appropriate method by which to assess the appellant’s impairment of her right upper extremity. Given that, the findings from the ultrasound of her right shoulder had no relevance because, irrespective of the pathology revealed in that study, the appellant’s restricted range of movement of her right shoulder, that is the impairment of her right shoulder, was as the Medical Assessor found it to be at examination.
The Appeal Panel also notes that the MRI of the appellant’s cervical spine had nothing whatsoever to do with the assessment of the impairment of the appellant’s right upper extremity.
The Appeal Panel observes that a Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to reveal the reasons by which he or she arrived at the assessment in sufficient detail such that it can be ascertained whether there is any error in their reasoning.[1] That obligation does not require the Medical Assessor to explain why he or she did not form an opinion that he or she did not reach, even if that opinion is different from those of other medical examiners.[2]
[1] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43, 22 CLR 480 (Wingfoot) at [55]; applied by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur) and by Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
[2] Wingfoot at [56].
The Medical Assessor accordingly did not err by not explaining why his assessment was different from Dr Giblin’s assessment.
The Appeal Panel considers that the Medical Assessor did make an error with respect to the assessment of the appellant’s permanent impairment of her thoracic spine and also with respect to the effect her lumbar spine impairment had on her activities of daily living. This is because, with respect to the thoracic spine, the Medical Assessor failed to conduct a comprehensive examination to enable an assessment of the appellant’s impairment of her thoracic spine and failed to provide adequate reasons for the assessment he did make. With respect to the appellant’s activities of daily living, the Medical Assessor failed to provide adequate reasons for his assessment.
The reasons the Medical Assessor provided for his assessment that the appellant’s impairment of her thoracic spine was 0% WPI do not adequately his assessment. He said he found no tenderness when examining the appellant’s thoracic spine and that she seemed to have good range of movement on rotation and chest expansion. It is not apparent from that explanation that the Medical Assessor conducted all relevant tests to establish what signs the appellant exhibited with respect to her thoracic spine so as to correlate her signs and symptoms with the relevant criteria of the DRE Thoracic Categories. Specifically it is not apparent that the Medical Assessor assessed the appellant’s thoracic spine for flexion, extension or tilt. What the Medical Assessor set out in the MAC does not enable the Appeal Panel to ascertain why the Medical Assessor assessed the appellant signs with respect to her thoracic spine as correlating with the criteria for DRE Category I, which would warrant a 0% WPI rating, or why they do not correlate with the criteria for DRE Category II which would warrant a 5% WPI rating.
The Medical Assessor’s explanation for why he assessed the appellant’s impairment with respect to her activities of daily living as 1% WPI seems to be based on the history he obtained that the appellant did not “complain much but certainly the sore back with restricted standing and walking is limiting her capacity”. In the Appeal Panel’s view that is an insufficient explanation. The Medical Assessor did not reveal in the history obtained whether or not the appellant’s ability to engage in yard, garden and sport and recreational activities, or in home care or with her self care was adversely affected by her lumbar spine impairment.
The fact that the Medical Assessor failed to provide sufficient explanation with respect to his assessment of the appellant’s impairment relating to her thoracic spine and with respect to the effect that her lumbar spine impairment has on her activities of daily living means that the MAC contains a demonstrable error. As indicated above, in order to correct those errors, the Appeal Panel determined that it would be necessary for the appellant to be re-examined and appointed Dr Stephenson to conduct that examination. His report to the Appeal Panel is as follows:
“The panel has determined that the appellant should submit herself for clinical examination as follows:
Examination by: Dr John Brian Stephenson (Medical Assessor Panel Member)
Date: 8 March 2023
Time: 12 pm
Place: Medilaw Level 20, 31 Market Street, Sydney.
The clinical examination is limited to the thoracic spine and the appellant’s activities of daily living.
Signed (Member Mr Marshal Douglas 21 February 2023 for Personal Injury Commission)
1. The worker's medical history, where it differs from previous records
In that regards the relevant,
Medical Assessor: Dr Yiu-Key Ho
Specialty: Orthopaedic Surgeon.
Date of Injury: 24 July 2017.
Body parts/systems referred: Right upper extremity, right lower extremity, lumbar spine, thoracic spine.
Method of assessment: Whole person impairment.
Date of Birth: [redacted] 1957
Age: 66 years
Details who attended the examination: Ms Freckelton attended on her own.
Employer and occupation concerned as Department of Communities and Justice, Case Worker.
Having trained at University in Ecology and Architecture at Wollongong and Macquarie Universities. She had experience in Architecture in the 1990s. She joined Family and Community Services in 2005. She last worked in June 2020 following her injury.
2. Additional history since the original medical assessment certificate was performed.
History of Injury: Medical Assessor for MAC 4 November 2022, Dr Yiu-Key Ho, Orthopaedic Surgeon, noted the history “On 24 July 2017, she went out for a home visit and upon finishing the visit she slipped in a ditch at the side of the car when trying to get into the car. Apparently she fell, hit the right knee and the right shoulder on the ground and twisted the low back as well as the right ankle”. Dr Ralph, the GP at Hill Top, NSW on 9 August 2018, referred Ms Freckelton to Dr Ralph Mobbs, neurosurgeon, requested MRI scan of thoracic spine advising referral to Dr Guy Bashford, rehabilitation physician, Illawarra, and also a sit-stand desk.
Ms Freckelton confirmed that history.
History as to activities of daily living.
3. Findings on clinical examination.
On examination of the thoracic spine, AMA5, page 389, Table 15-4, criteria for rating impairment due to thoracic spine injury. There was pain with restricted active range of motion of the thoracic spine as follows:
Lateral tilt left 20 degrees.
Lateral tilt right 10 degrees.
Thoracic rotation left 20 degrees.
Thoracic rotation right 15 degrees.
Reference Table 15-4, Page 389, with history and examination findings compatible with a specific injury to the thoracic spine. Findings do include significant muscle guarding observed at the time of the examination.
There is asymmetric loss of range of motion (dysmetria).
There were no findings of radiculopathy with reference to the thoracic spine. It was noted that there were no findings of radiculopathy related to the lumbar spine.
Conclusion: The DRE Category II thoracic spine gained 5% WPI and no deductible proportion. Reference to SIRA Guidelines page 4.34 regarding ADL’s. “This is only to be added if there is a difference in activity level as recorded and compared to the workers status prior to the injury”.
Reference to activities of daily living
These should be allocated to one spinal region only. In this case, the allocation has been made for the lumbar spine. There was no document of applicant’s submissions in support of Application to Appeal against the decision of the Medical Assessor. Clause 2.1 ‘The MA took a history that the applicant ‘can only walk for 15 minutes, sitting to drive for 20 minutes’. The MA then at paragraph 10 (b) of MAC stated ‘I think another 1% extra for ADL is indicated’. Therefore, for the lumbar spine there is now a 2% WPI add on for ADL’s to the base-line of 5%, now gaining a total of 7% WPI.
Statement of Julie Freckelton
The disabilities set out in the statement set out in a list of restrictions from Clause are as follows:
r.I struggle to perform repetitive bending or heavy lifting.
s.I am restricted to lifting light weights.
t.I cannot walk long distances without sustaining further aggravation to my injuries causing pain.
u.I am limited to sitting for 20 minutes and standing for 30 minutes.
v.Aches increase in cold weather
hh.Reliance on family and friends for home support. Also with regard to ADL’s, she has a lady who is a friend who helps by living at her house to undertake ADL’s.
Activities of Daily Living
50. Prior to my injury I enjoyed going out for dinner, gardening, fixing and making things, drawing, movies, walking and spending time with family.
51. I now struggle to undertake those activities due to my inability to walk, stand or sit for long periods of time.
52. Prior to my injury, I enjoyed walks but I avoid any form of exercise due to ongoing pain in knees, lower back and neck and shoulder.
53. Since injuries, I have been living with a friend to assist with home duties or any garden work.
54. I cannot complete housework in the same capacity that I used to.
55. I have no capacity and rely on others for any extended work or housework.
56. I experience difficulty with vacuuming, mopping, ironing, hanging the washing on the line, carrying the shopping, cooking, cleaning, taking down the curtains and moving furniture.
57. As a result of my injuries, I now have difficulty with some self-care activities such as putting my bra on or bending over to put my shoes on.
58. I have been able to manage my personal care such as washing and dressing, however, I still experience a significant amount of pain and have difficulty in washing and drying my hair.
61. I have lost interests in relationships and friendships due to pain.
Signed:Julie Freckelton
Date: 19 September 2022
There is a WorkCover New South Wales Certificate of Capacity, Julie Freckelton, patient’s date of injury of 14 October 2018, indicating a previous back injury ‘14-year-old pushed her several times on her lower back while she was bending forward to pick up something on the ground and the patient was pushing against Julie's back several times with weight, which aggravated the back pain. 16 October 2018, back pain is slowly improving specially sitting for a long time and not getting good sleep due to the pain, starting physiotherapy to the lower back today’.
In that regard, regarding sleep and the date of injury 24 July 2017, in the statement of Julie Freckelton 19 September 2022, Clause 59, prior to my injuries, I used to get a lot of sleep, but since my injuries, I have only been getting between four to six hours of sleep and I rely heavily on melatonin to stay asleep.
Regarding the MAC of page 3, the MA in the main paragraph “Looking at the low back, most of the pain stayed in the lumbosacral junction, more to the right side around the S1 sacroiliac joint area. Movement was restricted, fingers can only touch upper shin on flexion, also extension, sideward flexion and rotation were all restricted with some asymmetrical loss, more restriction with sideward flexion and rotation to the right. Straight leg raising is 70 degrees. There is no neurological deficit in both lower limbs. In terms of motor power, sensation and reflex jerk studies, the MA found no evidence of radiculopathy and findings of this assessment where as regards the lumbar spine, when standing, she could forward flex, the fingers reached mid-thigh level with lateral flexion right to lower mid-thigh level and lateral flexion left to lower third of the thigh.
On examination 8/3/23: I noted a mild increase in thoracic kyphosis and a mild increase in lumbar lordosis. There were no objective findings of radiculopathy in the lower extremities. Apparent sensation was satisfactory. Deep tendon reflexes were present and active. There was no calf muscle wasting, both mid-thighs measured 42 cm circumference in mid-calf.
| Body part Or System | Date of Injury | Chapter, Page & Paragraph Number in NSW Workers Compensation Guidelines | Chapter, Page, Paragraph, Figure & Table Numbers in AMA 5 Guides | % WPI | % WPI Deductions pursuant to S323 for pre-existing injury, condition & abnormality | Sub-Total/s % WPI (after any deductions in Column 5) |
| 1. Right upper extremity | 24 July 2017 | Ch 2, Page 10-12 | Figure 16-37, 40, 42 | 1% | 0 | 1% |
| 2. Right lower extremity | 24 July 2017 | Ch 17 | Table 17-11 and 17—10 | 7% | 1 | 6% |
| 3. Lumbar spine | 24 July 2017 | Page 28, Para 4.34 | Table 15-3 | 7% | 0 | 7% |
| 4. Thoracic spine | 24 July 2017 | Ch 15, Page 389, Table 15-4 | Table 15-4, | 5% | 0% | 5% |
| Total % WPI (The Combined Tables Values of all sub-total/s) the base-line of 5%, now gaining a total of 7% WPI. | 18% | |||||
Dorsiflexion both feet and ankle were normal at 5/5 in terms of muscle power, being normal.
Conclusion for DRE thoracic Category 2 as indicated above, at page 389, the diagnosis criteria too are met with a 5% WPI of thoracic spine. Therefore, 5% WPI must be incorporated in the Table 2 Assessment.
Now for the lumbar spine base-line of 5% WPI, there is an increase to 2% for ADL’s that is for assistance with and avoidance of sport, recreation and home care.
The combination is now that of 7% WPI for lumbar spine with 6% WPI for right lower extremity and 5% WPI for thoracic spine, and then 1% WPI for right upper extremity. The combination of 7 with 6 with 5 with 1 is 18% WPI.
4. Results of any additional investigations to original medical assessment certificate.
There were no additional investigations; however, I referred to the MRI of thoracic spine requested by the GP on 17 September 2018.
Clinical details: Neck and upper thoracic pain. No previous MRI of thoracic spine.
Findings: There is a mild focal kyphosis at T11/12. Alignment is otherwise normal without listhesis. Anterior/T12, there is moderate predominantly anterior loss of disc height with subtle mild Tl2 endplate oedema anteriorly. Shallow posterior protrusion without significant canal or foraminal narrowing. Intervertebral discs are of otherwise normal height and signal intensity throughout the thoracic spine. No disc problem elsewhere and no canal or foraminal narrowing.
The marrow signal is normal throughout the thoracic spine. No evidence of previous fracture.
Minor/mild arthropathy is seen across multiple costotransverse/costovertebral joints. None of these articulations are associated with demonstrable inflammation. Facet joints are normal.
Thoracic cord is normal.
Small hiatus hernia. No other abnormality is seen within the imaged posterior mediastinal region.
Conclusion: Intervertebral disc changes at T11/T12 are considered likely incidental. No definite cause for the pain is identified.
Dr Damian Jiang, Radiologist.
Those investigations were not recorded with the MAC.
Dr Matthew Giblin, report 30 August 2021. Thoracic spine assessed using Table 15-5, page 389, AMA5. DRE Category 2, 5% WPI for thoracic spine.”
The Appeal Panel has regard to the additional history Dr Stephenson obtained at his examination of the appellant. The Appeal Panel also adopts Dr Stephenson’s findings from his examination of the appellant’s thoracic spine.
Dr Stephenson’s examination of the appellant’s thoracic spine reveals that the appellant has an asymmetrical loss of range of motion of her thoracic spine. Consequently, the appellant correlates with the criteria for DRE Thoracic Category II which attracts a rating of 5% WPI.
With respect to the appellant’s activities of daily living the Appeal Panel observes from
Dr Stephenson’s report that the appellant relies on friends for home support and garden work and also has difficulty dressing. Whilst it is the case that that compromises her activities of daily living may be due in part to the other parts of her body that were affected by her injury, her lumbar spine impairment contributes to the compromise of her ability to undertake those activities of daily living. In the circumstances, the Appeal Panel considers that, as
Dr Stephenson concluded, that 2% WPI should be added to the base reading of 5% WPI for her lumbar spine impairment for the effect her lumbar spine impairment has on her activities of daily living.For these reasons, the Appeal Panel has determined that the MAC issued on
4 November 2022 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: | W6097/22 |
Applicant: | Julie Freckelton |
Respondent: | Secretary, Department of Communities and Justice |
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 Dr 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) |
| 1. Right upper extremity | 24 July 2017 | Ch 2, Page 10-12 | Figure 16-37, 40, 42 | 1% | 0 | 1% |
| 2. Right lower extremity | 24 July 2017 | Ch 17 | Table 17-11 and 17—10 | 7% | 1 | 6% |
| 3. Lumbar spine | 24 July 2017 | Page 28, Para 4.34 | Table 15-3 | 7% | 0 | 7% |
| 4. Thoracic spine | 24 July 2017 | Ch 15, Page 389, Table 15-4 | Table 15-4, | 5% | 0% | 5% |
| 1. Right upper extremity | 24 July 2017 | Ch 2, Page 10-12 | Figure 16-37, 40, 42 | 1% | 0 | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 18% | |||||
0
4
0