Harris v Revesby Workers Club Ltd
[2021] NSWPICMP 163
•7 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Harris v Revesby Workers Club Ltd [2021] NSWPICMP 163 |
| APPELLANT: | Michelle Harris |
| RESPONDENT: | Revesby Workers Club Ltd |
| APPEAL PANEL: | Mr William Dalley Dr John Brian Stephenson Dr Phillipa Harvey-Sutton |
| DATE OF DECISION: | 7 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The Medical Assessor (MA) stated that the physical examination performed by the worker’s independent medical expert (IME) had been performed “within the directions of the AMA5 guides except for the left carpometacarpal (CMC) joint which does not have an active range of motion assessment”; the appellant worker submitted that the MA had fallen into error in so far as he had not accepted that CMC joint impairment arising from range of motion was not to be assessed; Held - the tables provided by the MA clearly related to the CMC Joint, although not labelled as such; the measurements assessed were also set out in the worksheets attached to the Medical Assessment Certificate (MAC); the error by the MA in stating that the appellant worker’s IME had not assessed the independent range of motion when the relevant report established that the IME had in fact performed the necessary measurement, did not affect the assessment by the MA which was performed in accordance with the guidelines; MAC confirmed. . |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 April 2021 Michelle Harris lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 19 March 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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 grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant, Ms Harris, commenced employment with Revesby Workers Club Ltd, the respondent, in 2014. Ms Harris performed hospitality duties and from 2015 on she operated a coffee making machine which involved repetitive forceful use of the right hand.
Ms Harris started to notice painful symptoms in the right hand and wrist and was diagnosed with osteoarthritis in the right hand. She continued to perform her duties using the left hand but by mid 2019 was reporting painful symptoms at the base of the left thumb.
Ms Harris was seen by an orthopaedic surgeon, Dr Dao, who carried out a right trapeziectomy and suspension arthroplasty of the base of the right thumb in November 2019.
Ms Harris continued to suffer symptoms in both hands. On 10 March 2020 Ms Harris was examined by an independent medical expert, Dr Min Fee Lai, for the purposes of a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987.
Dr Lai assessed Ms Harris as having 14% whole person impairment (WPI) in respect of the right upper extremity and 1% WPI in respect of the left upper extremity. Dr Lai also assessed 1% WPI with respect to scarring. After deduction of one tenth pursuant to section 323 of the 1998 Act, Dr Lai assessed a total of 15% WPI in respect of the subject injury.
Ms Harris’s solicitors made a claim for lump-sum compensation in accordance with this assessment. Ms Harris was then reviewed by Dr Anthony Smith, Orthopaedic Surgeon, on behalf of the insurer. Dr Smith had previously examined Ms Harris. He maintained his opinion that the condition in Ms Harris’s hands was constitutional and unrelated to employment.
Notwithstanding the opinion of Dr Smith, consent orders were made on 27 January 2021 and a medical dispute as to the extent of impairment was referred to the Medical Assessor to assess Ms Harris’s “right upper extremity (thumb, hand, wrist); left upper extremity (thumb); and scarring (TEMSKI)”.
Ms Harris was examined by the Medical Assessor on 16 March 2021. The Medical Assessor assessed Ms Harris as suffering 7% WPI in respect of the right upper extremity and 2% WPI in respect of the left upper extremity. The Medical Assessor deducted one tenth pursuant to section 323 of the 1998 Act in respect of a pre-existing condition or abnormality in both hands. The AMS also assessed a further 1% WPI in respect of scarring. After appropriate rounding the Medical Assessor assessed a total of 9% 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 WorkCover Medical Assessment Guidelines 2006.
The appellant submitted that the Panel should conduct a re-examination on the basis of the error alleged. However, as a result of the preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no error or application of incorrect criteria was identified.
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.
In summary, the appellant submits that the Medical Assessor had “determined that it is not permissible to assess impairment due to impaired ROM [range of movement] in the CMC joint (at least in the left hand) where the Guidelines provide explicit instructions to the contrary”.
In reply, the respondent submits that the Medical Assessor had in fact assessed the CMC joint in accordance with the Guidelines and that hand impairment had been appropriately converted to upper extremity impairment and then to WPI.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[1] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[1] 2006] NSWCA 284
The submissions in support of the appeal on behalf of Ms Harris refer to the assessment of Dr Lai, noting that the independent medical expert had assessed 15% WPI. The appellant submitted that the Medical Assessor had apparently failed to assess the impaired range of motion of the CMC joint, noting that the Medical Assessor had stated with respect to Dr Lai’s assessment:
“The physical examination findings on pages 5 and 6 are performed within the directions of the AMA 5 Guides except for the left thumb CMCJ which does not have an active range of Ms Harris’s motion assessment (emphasis added).”
In his report dated 10 March 2020 Dr Lai assessed the right upper extremity as having 14% WPI. That assessment comprised:
· abnormal motion of the thumb – 6% upper extremity impairment
· abnormal motion of the wrist – 7% upper extremity impairment
· impairment from trapeziectomy – 11% upper extremity impairment
added to give a total of 23% upper extremity impairment which was converted in accordance with Table 16-3 of AMA 5 to 14% whole person impairment (WPI). Dr Lai assessed the left upper extremity as having 2% upper extremity impairment converted in accordance with Table 16-3 to 1% WPI. Dr Lai also assessed 1% WPI with respect to scarring.
Dr Lai set out his findings on physical examination of the right and left upper hands:
Joint
Motion
Left R0M
Right ROM
I PJ
Flexion
70°
60°
I PJ
Extension
0°
0°
MPJ
Flexion
60°
35°
MPJ
Extension
+20°
+10°
CMC J
Radial abduction
50°
35°
CMC J
Adduction
2 cm
4 cm
CMC J
Opposition
6.5 cm
5 cm
Dr Lai also tabulated his findings with respect to the left and right wrists but those findings are not relevant to this appeal.
The Panel has considered the observation by the Medical Assessor that:
“The physical examination findings [of Dr Lai] on pages 5 and 6 [of Dr Lai’s report dated 10 March 2020] are performed within the directions of the AMA 5 Guides except for the left thumb CMCJ which does not have an active range of motion assessment.”
The Panel accepts that the report of Dr Lai does record the active range of motion measured by Dr Lai in respect of both thumbs. Those findings are recorded in the table appearing on page 5 of Dr Lai’s report.
The Panel accepts that the Medical Assessor fell into error to the extent that he asserted that Dr Lai’s assessment did not include an active range of motion assessment with respect to the CMC joint. That error however did not reflect a misconception by the Medical Assessor that assessment of the CMC joint should not be included as part of the overall assessment of the right hand and wrist and the left thumb.
The appellant submitted that “the combination of impairment due to arthroplasty with impaired range of motion is specifically permitted”. The Panel accepts that submission. However, the appellant further submits that:
“Given that the AMS [sic] has not recorded, or clearly recorded, impaired range of motion in the CMC joints, it is submitted that re-examination by member of the panel is necessary.
If the AMS [sic] determined that range of motion was not appropriate to assess impairment in the CMC joint then an alternative method of assessment ought to have been used rather than depriving the appellant of the consideration of the impairment of the joint which is perhaps the most severe of her injuries.
The appellant submits that if the CMC joint impairment was combined with the arthroplasty, then the appellant would have reached at least 15% whole person impairment.
Given that the AMS [sic] has not recorded the impaired range of motion in the CMC joint, re-examination is necessary.”
The MAC and the accompanying worksheets in respect of the left and right hands demonstrate that the Medical Assessor performed and recorded the appropriate measurements in respect of the CMC joint in the respective thumbs. (The Panel notes that the worksheet requires assessment of opposition and adduction in the CMC joint by measurement of the range of motion in centimetres and radial abduction by degrees).
The Medical Assessor noted the following findings on examination of the right thumb:
“The active range of motion of her right thumb was I PJ – 0° to 80° (1 and 0 = 1% impairment of the thumb), MC PJ – +10° to 60° (zero & 0% impairment of the thumb).
Thumb
Range o
Thumb impairment %
Abduction
60
0
Adduction
2 cm loss
1
Opposition
7 cm
1
Added together there was 3% impairment of the thumb which equates to 1% impairment of the hand.[2] “
[2] MAC page 5
That assessment can only be understood as combining assessments in respect of the intermediate phalangeal joint (IP joint), the metacarpal proximal phalangeal joint (MCP joint) and the carpometacarpal joint (CMC joint). Although not labelled as such, the table provided by the Medical Assessor, reproduced above, clearly relates to assessment of the CMC joint in the right thumb. This is confirmed by reference to the “Upper Extremity Impairment Evaluation Record” in respect of the right hand which is attached to the MAC.
With respect to the left thumb the Medical Assessor reported:
“The active range of motion of her left thumb was IPJ – 0° to 80° (1 and 0 equals 1% impairment of the thumb), MCPJ – +10° to 30° (0 & 3 = 3% impairment of the thumb).
Thumb
Range o
Thumb impairment %
Abduction
50
0
Adduction
1 cm loss
0
Opposition
7 cm
1
Added together this is 5% impairment of the thumb which equates to 2% impairment of the hand.”
Once again this assessment can only be understood as combining the assessment of the IP joint, MCP joint and CMC joint in accordance with the Guidelines and Chapter 16 of AMA 5. The “Upper Extremity Impairment Evaluation Record” in respect of the left hand prepared by the Medical Assessor and attached to the MAC clearly demonstrates that the Medical Assessor did not fail to include assessment of the CMC joint. The respective assessments of impairment of the thumb by the Medical Assessor were:
IPJ – 1% impairment of the thumb
MCPJ – 3% impairment of the thumb
CMCJ – 1% impairment of the thumb
Accordingly and appropriately, the Medical Assessor converted 5% impairment of the left thumb to 2% impairment of the hand pursuant to Table 16 – 1 of AMA 5.
Properly understood, the MAC and the accompanying worksheets establish that the Medical Assessor did not fail to take into account impairment in either the left or right thumb at the CMC joint. The Medical Assessor assessed 1% impairment of the thumb in respect of the left and right CMC joints, added the respective impairments to the impairments measured in respect of the respective IP joints and the MCP joints to arrive at assessment of 3% impairment of the right thumb and 5% impairment of the left thumb. The Medical Assessor then applied the appropriate conversions from thumb impairment to hand impairment, to upper extremity impairment and then to WPI.
Although the Panel accepts that the Medical Assessor fell into error to the extent that he considered that the report of Dr Lai did not include “active range of motion assessment”, the Medical Assessor recognised that assessment of the range of motion at the respective CMC joints was appropriate and accordingly assessed the respective ranges of motion and included impairment in those joints as part of his overall assessment.
The error with respect to Dr Lai’s report has not affected the Medical Assessor’s assessment of the impairments arising from the subject injury which has been performed in accordance with the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 March 2021 should be confirmed.
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