Giles-Wilson v The Trustee for Global Retail Brands Australia Unit Trust t/as House
[2021] NSWPICMP 143
•6 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Giles-Wilson v The Trustee for Global Retail Brands Australia Unit Trust t/as House [2021] NSWPICMP 143 |
| APPELLANT: | Kerryn Giles-Wilson |
| RESPONDENT: | The Trustee for Global Retail Brands Australia Unit Trust t/as House |
| APPEAL PANEL: | Member R J Perrignon Dr Richard Crane Dr Robin Fitzsimons |
| DATE OF DECISION: | 6 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of whole person impairment (right shoulder, cervical spine, lumbar spine) as a result of injury to the left shoulder; whether assessor erred in finding that the conditions of the body parts referred did not result from injury; to provide reasons for his assessment of the cervical spine; whether he erred in calculating a 3% whole person impairment (lumbar spine); whether he erred in deducting one half and three-quarters for pre-existing conditions of the lumbar spine and left knee respectively; whether he failed to take account of radiological evidence and range of motion in assessing the left ankle; appellant referred for examination of the cervical spine; Held- MAC revoked and new MAC issued. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Giles-Wilson, appeals from the Medical Assessment Certificate of Approved Medical Specialist Dr Kuru dated 5 November 2020.
On 15 September 2015, the appellant suffered a wrenching injury to her left shoulder. On 20 August 2019 she was examined by orthopaedic surgeon, Dr Bodel, who diagnosed rotator cuff injury, SLAP lesion and biceps tendonitis of the left shoulder, with consequential problems in her neck, right shoulder and back. He assessed a 29% whole person impairment (11% left shoulder, 9% right shoulder, 7% cervical spine, 5% lumbar spine) as a result of injury to the left shoulder on 15 September 2015. She claimed compensation for impairment of the whole person in accordance with Dr Bodel’s assessment.
On 17 September 2020, an Arbitrator of the former Workers Compensation Commission remitted the matter to the Registrar of the Commission for referral to an Approved Medical Specialist to assess whole person impairment (left upper extremity - shoulder; consequential condition of the right upper extremity - shoulder; consequential condition in cervical spine; consequential condition in lumbar spine) as a result of injury on 15 September 2015. The Registrar referred these body parts and conditions to Approved Medical Specialist Dr Kuru for assessment.
By his Medical Assessment Certificate dated 5 November 2020, Dr Kuru assessed 8% whole person impairment (8% left upper extremity - shoulder; 0% right upper extremity - shoulder; 0% cervical spine; 0% lumbar spine).
Ms Giles-Wilson appeals against his assessment of the right shoulder, cervical spine and lumbar spine only, essentially on the basis that he assessed them all at 0% because he considered that none of them had been injured, thus exceeding his power and the terms of the Registrar’s referral.
On 27 January 2021, the Registrar of the former Workers Compensation Commission by his delegate was satisfied that a ground of appeal pursuant to sections 327(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 had been made out, and referred the matter to this Appeal Panel for determination.
On 19 February 2021, the Appeal Panel conducted a preliminary review of the original medical assessment 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). Being satisfied of error on some but not all of the grounds relied on by the appellant, the Panel referred the worker for examination by one of its members, Approved Medical Specialist Dr Crane.
Submissions
Both parties have filed written submissions which have been taken into account. It is not necessary to repeat them in full, but they may be summarised briefly as follows.
The appellant worker submits that error is demonstrated, and incorrect criteria applied, for the following reasons:
(a) the Approved Medical Specialist assessed a 0% whole person impairment in respect of the right shoulder, because he found that there had been ‘no documented injury to the right solder’ or investigation of it. In doing so, he made a finding as to causation which was beyond power. He was bound by the Registrar’s referral which included a finding as to injury, and should have assessed the right shoulder on the basis of range of movement;
(b) the Approved Medical Specialist assessed a 0% whole person impairment in respect of the cervical spine, because he found that the appellant had no clinical history and examination findings compatible with a specific injury. That was a finding as to causation which was likewise beyond power, for the same reasons as above, and
(c) the Approved Medical Specialist assessed a 0% whole person impairment in respect of the lumbar spine, because he found that the worker had no clinical history and examination findings compatible with a specific injury. That was a finding as to causation which was likewise beyond power for the same reasons as above.
The respondent employer submits as follows:
(a) the Approved Medical Specialist made his assessments of all three body parts on the basis of his clinical examination on the day, as he was required to do. He did not assess on the basis of any findings as to causation;
(b) in respect of the right shoulder, he found that the symptoms had resolved. That compelled an assessment of 0% whole person impairment;
(c) in respect of the cervical spine, he found the appellant had reasonable range of motion with intact neurological examination. This justified an assessment of 0% whole person impairment, and
(d) in respect of the lumbar spine, he assessed 0% whole person impairment on the basis that the worker had no clinical history and examination findings compatible with a specific injury. This was not a finding on causation.
Reasoning of the Approved Medical Specialist
Dr Kuru examined the worker on 27 October 2020.
He took a history of injury to the left shoulder on 15 September 2015 at [4], of arthroscopic labral repair to that shoulder at the hands of Dr Kumar in 2016, and of further surgery to the left shoulder at the hands of Dr Petrelis on 26 July 2018.
The worker told him that she had experienced pain and restriction of movement in the right shoulder due to relative overuse to compensate for the injury to the left shoulder.
She gave a history of an acute episode of back pain in December 2018, which her GP advised was due to abnormal posture as a result of injury to the left shoulder. He noted an MRI which revealed age related changes to the disc at L4 but no significant structural abnormality.
He noted reported symptoms of pain in both shoulders, neck and lower back.
Dr Kuru helpfully recorded the range of movement of both shoulders at [5]. Though the ranges of movement different in some respects, there was restricted movement in both shoulders.
He detailed at [8] various scans of the left shoulder from September 2015 to June 2017, and an MRI of the lumbar spine dated 18 February 2019, which demonstrated desiccation of the disc at L4.
He diagnosed at [7] a SLAP lesion of the left shoulder as a result of injury on 15 September 2015, with ongoing pain and restriction of movement despite two surgical procedures.
He did not offer a diagnosis in respect of the right shoulder, noting only that ‘similar issues with the right shoulder’ in 2007 had ‘spontaneously resolved’.
Though he noted reports of pain in the cervical and lumbar spine at [7], he did not offer a diagnosis.
As indicated, he assessed 8% whole person impairment in respect of the left shoulder on the basis of range of movement at [10].
In respect of the right shoulder, he explained at [10b] his reasons for assessing a 0% whole person impairment - emphasis added:
“… there has been no documented injury to the right shoulder. There has been no investigation of the right shoulder.
Ms Giles-Wilson has previously had a problem in the right shoulder associated with pain and significant range of motion restriction which has resolved spontaneously. In the absence of specific injury or investigation demonstrating pathology in the right shoulder, I assess 0% whole person impairment for the right upper extremity (shoulder).”
He added the following at [10c] when considering Dr Bodel’s assessment - emphasis added:
“I disagree that there is a rateable impairment for the right shoulder. While she has significant restriction of range of motion, there has been no documentation of any pathology in the right shoulder. As noted in the body of the report, Ms Giles-Wilson has previously had pain associated with restriction of movement in the right shoulder which has completely resolved.”
In respect of the cervical spine, he explained at [10b] his reasons for assessing a 0% whole person impairment - emphasis added:
“With respect to the cervical spine I observed Ms Giles-Wilson to have reasonable range of motion in the cervical spine with an intact neurological examination. She has had no imaging or investigation of the cervical spine. While she has pain in her neck she does not have ‘Clinical history and examination findings compatible with a specific injury”. Hence, her assessment is DRE Cervical Category I, 0% whole person impairment.”
In respect of the lumbar spine, he explained at [10b] his reasons for assessing 0% whole person impairment - emphasis added:
“As for the cervical [sic, lumbar] spine, whilst she has pain in her back, she again does not have ‘Clinical history and examination findings compatible with a specific injury': I hence assess her as DRE Lumbar Category I, 0% whole person impairment.”
He added at [10c] - emphasis added:
“Dr Bodel assesses Ms Giles-Wilson as DRE Category 11 for the cervical spine and DRE Category II for the lumbar spine. To assess her as DRE Category II in either category, the descriptor is "Clinical history and examination findings compatible with a specific injury". Ms Giles-Wilson has not had a specific injury to her cervical spine or lumbar spine and hence, I assess her as DRE Category I for both spinal regions.”
With respect to the reports by Dr Harrington, the last dated 29 January 2020, again I found slightly greater range of motion, particularly with internal and external rotation and have assessed 8% whole person impairment as opposed to 11%. I agree with Dr Harrington that there is not an association between injury to the left shoulder and the current reported pain and restriction of movement in the right shoulder, pain in the cervical spine or pain in the lumbar spine.’
He noted at [4], ‘Swelling and bruising over the lateral part of the right thigh which keeps recurring every three months or so’. He noted also that the right hip and knee were stiff and painful.
Ground 1: assessment of the right shoulder
As indicated, Dr Kuru measured restricted ranges of movement in the right shoulder, and correctly described them as ‘significant’ at [10c].
He nevertheless assessed a 0% whole person impairment, because he found there was no ‘specific injury’ to the right shoulder, and no ‘investigation demonstrating pathology’ or ‘documentation of any pathology’.
There was no allegation of injury to the right shoulder. The Registrar’s referral required assessment of whole person impairment with respect to the right shoulder as a result of injury, not to the right shoulder, but to the left. In basing his assessment on a finding that there had been no injury to the right shoulder, the Approved Medical Specialist took into account an irrelevant consideration. This amounts to demonstrable error, requiring that the Medical Assessment Certificate must be set aside.
The appellant alleges that the Approved Medical Specialist should have assessed whole person impairment of the right shoulder by reference to the measured restrictions in the range of movement.
Generally speaking, the task of an Approved Medical Specialist is:
(a) to assess whether, in respect of each body system referred for assessment, there is permanent impairment, and
(b) if so, to quantify it in accordance with the Guidelines and determine whether any part of that impairment results from injury.
Where, as here, clinical examination reveals significant restrictions in the ranges of movement of a limb, the appropriate course is to assess whole person impairment by reference to those restrictions and any inconsistency, and then to assess whether or not that impairment results from injury.
In this case, there was no assessment of permanent impairment by reference to the range of movement of the right shoulder at all. The Approved Medical Specialist simply determined that there was no pathology in the right shoulder, and on that basis assessed 0% whole person impairment. The failure to assess by reference to restrictions and consistency in range of movement also demonstrates error, requiring that the Medical Assessment Certificate must be set aside.
These findings make it unnecessary to determination whether the Approved Medical Specialist erred in making findings as to causation, as alleged by the appellant. However, in deference to the parties’ submissions on that issue, we indicate as follows.
The Approved Medical Specialist found at [10c] that ‘there is not an association between injury to the left shoulder and the current reported pain and restriction of movement in the right shoulder’. He gave no reasons for that view. The failure to give reasons demonstrates error, requiring that the Medical Assessment Certificate be set aside.
It is strictly unnecessary to consider whether this amounted to a finding on causation which was beyond power, as the appellant alleges. However, in deference to the parties’ written submissions we indicate as follows.
In our view, the finding that there was no association between injury and the reported pain and restricted movement of the right shoulder amounted to a finding on causation with respect to a consequential condition of the right shoulder. Generally speaking, it is within the power of an Approved Medical Specialist to decide whether permanent impairment results from injury: Haroun v Rail Corporation New South Wales [2008] NSWCA 192. However, the Commission (as distinct from an Approved Medical Specialist) enjoys power to determine whether a subsequent event or pathology results from an accepted injury: State of New South Wales v Bishop [2014] NSWCA 354; Jaffarie v Quality Casting Pty Limited [2014] NSWWCCPD 79.
Had the Commission determined that a condition of the right shoulder resulted from injury to the left, that determination would have bound the parties, and a contrary finding by the Approved Medical Specialist might arguably have been beyond power. However, there was in this case no express determination of that issue by the Commission. It is apparent from the Arbitrator’s orders of 17 September 2020 that the issue was not in dispute, but it is difficult to infer from them a determination by the Commission - consensual or otherwise - as:
(a) the document was headed ‘Direction’ rather than ‘Certificate of Determination;
(b) it was expressed to be a ‘direction issued pursuant to the Workers Compensation Commission Rules 2011’, and
(c) the language used was that of a series of directions.
The Registrar’s referral gave effect to the Arbitrator’s Direction.
For those reasons, we are not satisfied that Dr Kuru’s finding on causation was beyond power. Nothing turns on it, having regard to the errors identified in paragraphs [30] and [34] above.
Grounds 2 and 3: assessments of the cervical and lumbar spine
As the errors alleged in respect of the assessments of the cervical spine and lumbar spine are the same, it is convenient to consider them together.
The Registrar referred for assessment consequential conditions of the cervical and lumbar spine.
In respect of both body parts Dr Kuru found that, though there was pain, there were not ‘clinical findings compatible with a specific injury’. We interpret that as meaning that he was not satisfied there had been injury to the cervical or lumbar spine.
There was no allegation of injury to the cervical spine or lumbar spine. The Registrar had referred the matter for assessment of permanent impairment of both body parts as a result of injury to the left shoulder. In basing his assessment on a finding that there had been no injury to the cervical or lumbar spine, the Approved Medical Specialist took into account an irrelevant consideration. This amounts to demonstrable error, requiring that the Medical Assessment Certificate must be set aside.
Dr Kuru does not appear to have considered or measured the level of permanent impairment of the cervical and lumbar spine as a result of injury to the left shoulder in accordance with the Registrar’s referral. This also demonstrates error, requiring that the Medical Assessment Certificate be set aside.
As indicated, he also found at [10c] that ‘there is not an association between injury to the left shoulder and …. pain in the cervical spine or pain in the lumbar spine’. He gave no reasons. The failure to do so demonstrates error.
Though it is strictly unnecessary to consider whether that constituted a finding on causation which was beyond power, for the reasons already given in respect of the right shoulder, we are:
(a) satisfied that it was a finding on causation with respect to consequential conditions of the cervical and lumbar spine, but
(b) not satisfied that it was beyond power in the particular circumstances of this case.
Report and assessment of Dr Crane
The appellant was referred for examination by Dr Crane, a member of the Panel. Dr Crane examined the appellant on 2 March 2021. His report appears below:
“1. The workers medical history, where it differs from previous records
Dr Richard Crane confirmed the history provided by Dr Rob Kuru in the Medical Assessment Certificate regarding the nature of the accident on 15 September 2015. There was confirmation that there had been no improvement with the situation concerning the injured left shoulder after the first operation in June 2016 and the second operation in July 2018.As concerns the back discomfort, the applicant was uncertain when she first informed her GP, Dr Mills, about this. She does recall that she consulted a local general practitioner while on holidays on the Gold Coast about the back problem in December 2018. As noted by Dr Kuru, neurosurgeon, Dr Christie, did not advise any surgery because of the back problem.
Ms Giles-Wilson is also somewhat uncertain as to when the neck problems were first noted and thinks that it may have been when she saw Dr Kumar in January 2016.
The applicant indicated she considered the right shoulder discomfort started in 2019 and considered this was due to overloading because of the problems experienced with the left shoulder. This was contrary to her statement, in which she identified the onset in mid 2016 after left shoulder surgery. Despite being right hand dominant, she considered that the activities normally undertaken did require input from the left arm with lifting and other activities.
Ms Giles-Wilson also stated she had been seeing a psychologist but could not give me any more information about the dates. She did not feel the psychology consultations were of any assistance.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Giles-Wilson indicated that since the examination by Dr Kuru in November 2020, her symptoms had simply become gradually worse as regards her both shoulders, the neck and back.3. Findings on clinical examination
It was noted that the applicant was displaying signs of significant anxiety and there was verbalisation of discomfort with all active movements undertaken by her during the examination.Height 167cm and weight 67kg. The build and posture were normal but there was a slight right-sided limp in evidence.
There was no difficulty with undressing and redressing, although the shoes were to be replaced with the help of her brother who was in the waiting room after the examination had been completed. She was able to rise only on the heels and toes and squatting was not attempted.
Cervical spine
There was no deformity but it was noted that there was symmetrical reduction in range of motion in all directions of flexion, extension, lateral bending and rotation without evidence of spasm or guarding, but all movements did lead to verbalisation of discomfort.
Mid-arm circumference was 28cm bilaterally and maximal forearm circumference was 24cm bilaterally. There was a description of slight reduction in sensation over the lateral aspect of the right upper extremity but this was not in a dermatomal distribution.
Sensation was normal and equal in the fingers of both hands. Muscle power, tone and reflexes were all normal in the upper extremities.
Lumbar spine
There was no deformity but there was a slight degree of tenderness in the lumbosacral area. Range of motion was symmetrically reduced by approximately 50% in all directions of flexion, extension, lateral bending and rotation but there was no evidence of spasm or guarding. Once again, there was verbalisation of discomfort with all movements and this was accompanied by some crying.
Straight leg raising was 40° bilaterally but this was accompanied by significant shaking of the legs and a complaint of pain generally in the legs and lower back.
There was a complaint of pain over the lateral side of the right lower extremity with the sciatic nerve stretch test, but this was not in an appropriate dermatomal distribution. There was a slight lessening in sensation in the right lower extremity laterally and to a lesser degree posteriorly, but not in a dermatomal distribution. There was a slight degree of reduced sensation over the dorsum of the right foot.
Muscle power and tone were normal in the lower extremities. I did note a slight reduction in the right ankle reflex.
Circumference of both lower extremities 10cm above the superior pole of the patella was 45cm and maximal calf circumference was 36cm bilaterally.
Right shoulder
There was no obvious deformity or muscle wasting. No crepitus was found. All active movements were reduced and accompanied by complaints of pain and quite frequent crying.
Range of Motion Plane of Motion Right shoulder Upper Extremity Impairment Flexion 90° 6% Extension 50° 0% Abduction 90° 4% Adduction 40° 0% External Rotation 70° 0% Internal Rotation 80° 0% Total 10%
Ms Giles-Wilson told me at the conclusion of the examination that she felt she was having more pain, particularly in the shoulders. I did express my concern at this but indicated I had to ask her to carry out the movements in order to perform a proper assessment and I believe she understood this.
All movements were active. I did not carry out any passive movements, with the exception of minor movements to check for the presence of crepitus, which was not found.
4. Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.Opinion summary
· Right Shoulder
A 10% upper extremity impairment converts to 9% whole person impairment.
However, on consideration of all the available evidence, I am not satisfied that the impairment of the right shoulder results from injury to the left shoulder, because on the history given to me, symptoms of discomfort in the right shoulder did not commence until about 4 years after the left shoulder injury.
The applicant is right hand dominant, and a person who is right arm dominant generally can be expected to use that arm in preference to the left, where a choice is available, with the result that the right arm is acclimatised to greater use than the left. If right shoulder symptoms resulted from favouring the injured left shoulder, I would have expected to see the emergence of symptoms in the right shoulder quite soon after injury to the left shoulder, and much earlier than four years later, as is the case here. I note Dr Bodel’s opinion that the matters raised in her statement, particularly sleeping on the lounge with her body propped up on pillows, have caused the right shoulder condition. However, on the history given to me, noting the delay in onset of symptoms, I am not satisfied that there is a causal relation between any impairment referable to the right shoulder, and injury to the left.
For those reasons, I assess a net 0% whole person impairment in relation to consequential injury.
· Cervical Spine
On the basis of the examination findings above, the appellant falls within DRE category I, resulting in 0% whole person impairment. I was unable to identify muscle guarding or spasm, asymmetric loss of range of motion, non verifiable radicular complaints, or any other features capable of justifying a DRE category II assessment. Chapter 4 of the Guidelines does not support an assessment above DRE ! (0% WPI).
· Lumbar Spine
On the basis of the examination findings above, the appellant falls within DRE category I, resulting in 0% whole person impairment. I was unable to identify muscle guarding or spasm, asymmetric loss of range of motion, documentable neurologic impairment, documented alteration in structural integrity, fractures, or other impairment related to injury or illness, or any features capable of justifying a DRE category II assessment. Chapter 4 of the Guidelines does not support an assessment above DRE 1 (0% WPI).”
The Panel adopts the assessment and reasoning of Dr Crane.
Conclusion
For the reasons given, the appeal is allowed. The Medical Assessment Certificate of Dr Kuru is set aside and replaced by the attached Medical Assessment Certificate.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Kuru 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. Left upper extremity (shoulder) | 15/09/2015 | Page 476 Table 16.40 Page 477 Table 16.43 Page 479 Table 16.46 Page 439 Table 16.0 | 8 | 0 | 8% | |
| 2. Right upper extremity (shoulder) | 15/09/2015 | Page 10 par 2.5 | 0% | 0 | 0% | |
| 3. Cervical spine | 15/09/2015 | Page 392 Table 15.6 | 0% | 0 | 0% | |
| 4. Lumbar spine | 15/09/2015 | Page 384 Table 15.3 | 0% | 0 | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
R J Perrignon
Member
Dr Richard Crane
Medical Assessor
Dr Robin Fitzsimons
Medical Assessor
6 August 2021
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