Hogan v Mercy Services
[2024] NSWPICMP 67
•13 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hogan v Mercy Services [2024] NSWPICMP 67 |
| APPELLANT: | Judy Hogan |
| RESPONDENT: | Mercy Services |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 13 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor erred in failing to adopt the appropriate method of assessment, as required under the Guidelines by not evaluating and assessing grip strength; failing to carefully document findings and provide calculations as prescribed by part 2.1 of the Guidelines and 16.1b of the AMA 5 Guides; failing to give adequate reasons for conclusions reached; failing to provide an assessment for scarring; the Panel agreed; re-examination arranged; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 October 2023 Judy Hogan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 14 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 (the 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 (the 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 Guides).
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 PICAs a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because The Panel has determined that the MA erred by failing to apply Clause 2.13 of the guidelines, failing to adequately explain the uncertainty over which peripheral nerve was involved, and failing to assess scarring where, although not specifically claimed, both independent medical examiner’s assessed scarring.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Chris Oates of the Appeal Panel conducted an examination of the worker on 2 February 2024 and reported to the Appeal Panel.
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 MA erred in a number of respects as follows:
(a) The MA failed to adopt the appropriate method of assessment, as required under the Guidelines by not evaluating and assessing grip strength.
(b) Failed to carefully document findings and provide calculations as prescribed by part 2.1 of the Guidelines and 16.1b of the AMA 5 Guides.
(c) Failed to give adequate reasons for conclusions reached, thereby constituting demonstrable error.
(d) Failed to consider evidence amounting to a demonstrable error.
(e) Failed to provide an assessment for scarring.
In reply, the respondent submits that no errors were made.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the left upper extremity resulting from an injury on 18 February 2021.
The Medical Assessor obtained the following history:
“Mrs Hogan related that on 18/02/21, she was in the office. She tripped on a piece of carpeting and pitched forward. She was fairly close to a large photocopier and impacted against this device, predominantly with her left outstretched hand. The ulnar side of her hand, including the ring and little fingers, took the greatest impact force.
The left arm was extremely painful. She saw her doctor and was later referred to Specialist Hand Surgeon, Dr Andrew Myers. He arranged for appropriate investigation. It was identified that there was a tear to the triangular fibro-cartilage. This was initially managed with a cortisone injection, which unfortunately made no difference.
On 07/06/21, Dr Myers carried out an arthroscopy with the original aim of trying to repair the triangular fibro-cartilage. This was too far damaged and therefore was debrided. There were several other debridement features conducted. Unfortunately this did not help Mrs Hogan.
Before this surgical procedure was undertaken, Dr Myers had advised that there may also be a need to carry out a shortening procedure of the ulna. This then went ahead on 22/09/21. This involved osteotomy of the ulna, shortening the length of the ulna shaft and subsequently stabilising the two bone components with a plate and screws, which remain. This gave her some improvement, although she still experienced dysfunction of the left hand and forearm.”
The MA then set out details of the appellant’s present treatment, present symptoms, general health, work history and the impact of her injuries on her social activities.
The MA then set out his findings on physical examination as follows:
“Upper Limbs. There was a normal range of movement of the shoulders, elbows and all digits. She had the following wrist movements:
MOVEMENT
RIGHT: Flexion 60° Extension 60° Radial deviation 20° Ulnar deviation 30°
LEFT: Flexion 50° Extension 40° Radial deviation10° Ulnar deviation 20°
The longitudinal scar over the ulnar edge had healed quite well, although this area was tender and there was reduced sensation in the ulnar distribution.”
The radiological material was noted as follows:
“31/03/21 MRI scan TFCC tear.
09/12/21 Plain x-ray: Ulna plates and screws at the ulna osteotomy shortening.
Disuse osteoporosis.”
The MA summarised the injuries and diagnoses as follows:
“Mrs Hogan gives a history of falling and injuring her left hand and wrist complex, mostly towards the ulnar side in mid-February 2021. It was identified that she had sustained quite severe soft tissue injuries within the wrist complex with a tear of the triangular fibrocartilage. An arthroscopy has conducted in the hope that it might be possible to repair this, although the tear was too extensive and this was then debrided. Other debridement procedures were also undertaken at that stage. Unfortunately this did not help Mrs Hogan. Neither had a previous cortisone injection.
Over three months later, in late September 2021, an ulna shortening procedure with an associated osteotomy and internal fixation was conducted, which gave her limited improvement.
At this assessment she continues to have dysfunction of the left wrist complex and also associated dysfunction of the ulnar nerve.”
The MA assessed 8% WPI of the left upper extremity.
The MA then turned to consider the other medical evidence he had and said:
“Specialist Orthopaedic Surgeon, Dr Joe Ghabrial in his report of 05/09/22 has a very high whole person impairment which includes grip strength and neurological dysfunction of the radial nerve. I am not persuaded that the inclusion of grip strength is entirely appropriate. I also did not identify any radial nerve dysfunction.
Specialist Orthopaedic Surgeon, Dr Chris Harrington in his report of 01/03/23 has a very similar whole person impairment to mine. He includes 1% for the scarring, which was not part of this assessment.”
The Appeal Panel agreed with the thrust of the appellant’s submissions such that a re-examination was considered appropriate.
Dr Oates of the Appeal Panel reported to us as follows:
“• Brief history of the incident and onset of symptoms and of subsequent related events including treatment x
Ms Hogan is right hand dominant.
She says on 18/02/2021, a Thursday, she got up from her desk to give directions to a tradesman who was on site, and her right foot caught the edge of a prominence where hard floor meets the carpet, and she fell forward and hit her outstretched left hand on the photocopier, causing hyperflexion of the left 4th and 5th fingers. She did not fall to the ground. Her hand and wrist were very painful.
She stayed at work that day and made an appointment to see her GP, Dr Burford, Williamtown, the next day. When she saw the GP, she was put on reduced hours of work, four hours per day.
She had worked as an office administrator for Mercy Services, an aged care centre, 64 hours per fortnight since joining them in September 2019 and remains employed by them.
The GP requested an x-ray of the wrist but this was initially declined by the employer, so she was sent across the road to a physiotherapist to get a splint for the hand. She had an x-ray after the weekend. This showed no fracture.
The GP then sent her for an MRI scan and this took four weeks to be approved. When it was done on 31/03/2021, there was a complete tear of the TFCC and mild positive ulnar variance with possible impaction. She was treated with analgesics of Panadeine Forte.
She was referred to Dr Myers, upper limb orthopaedic surgeon, Maitland. On 07/06/2021, he performed surgery at Maitland Private Hospital, covered by the insurer, and found a central non-repairable TFCC tear which was debrided back to a stable rim, a full synovectomy was done and also a chondroplasty for Grade 3 triquetral changes and Grade 2-3 ulnar head changes.
She returned to work after about one week on reduced hours. She had continuing pain in the ulnar side of the wrist and rested the part in a splint and typed with one hand. Wearing the splint caused her discomfort on the thumb side of the wrist.
On 22/09/2021 at Newcastle Private Hospital, Dr Myers operated again to perform an ulnar shortening osteotomy and fixation. She was off work for three weeks and in a splint for three or four months in all. She had hand therapy starting whilst in a splint and continuing until sometime in 2022.
She says the second operation helped the discomfort in the wrist somewhat, but not completely. She then did an exercise physiology program.
She remained on reduced hours of four hours a day until November 2021, when she ceased work completely for a related psychological condition. Her GP organised the intervention of a psychologist and for anti-depressants.
· Present treatment
She takes Panadeine Forte for pain every couple of weeks. She can’t take anti-inflammatories because she had a GI bleed when she was taking them for a period for a previous back condition.
She wears a splint for protection of the wrist and hand in crowded spaces. She applies a hot pack if it aches too much.
· Present symptoms
She has discomfort on the ulnar side of the left wrist and it swells at times on the dorsum of the left hand. There is no crepitation. She feels some tingling over the ulnar border of the hand and hypersensitivity in this area, extending to the wrist and distal forearm. There is also some hypersensitivity over the radial border of the thumb to light stroking.
She can only drive for 30 minutes because of wrist discomfort. Her left hand goes numb and wakes her if she lies on her left side with her hand crooked under her face, and when she goes to move her hand, she gets tingling on the ulnar aspect.
· Details of any previous or subsequent accidents, injuries or conditions
There was no relevant previous injury or condition and no subsequent accident or injury.
· Social history
Before the accident she did cycling, tennis and enjoyed baking. Since the injury, she can’t do physical activities, so she reads and walks. She gets help from her husband to carry the wash basket out, with vacuuming, changing the bed and lifting pots and pans when she is baking, because of reduced grip strength.
She used to do a little gardening but her husband does all the yard work now.
She sometimes has discomfort in the wrist in certain positions when she is washing her hair or doing up her bra.
FINDINGS ON PHSYCIAL EXAMINATION
She was of solid build with height 166cm and weight 99.7kg.
Upper arm girth; right 31.5cm, left 32cm at 10cm above the elbow. Forearm girth; right 25cm, left 25.5cm at 5cm below the elbow.
There was full range of movement of shoulders, elbows and hands bilaterally. Wrist movements are as follows:
Movement
Right
Left
Dorsiflexion
60°
40°
Volar flexion
70°
70°
Radial deviation
30°
20°
Ulnar deviation
50°
40°
I was satisfied that the worker showed a genuine effort when demonstrating active range of movement, which was repeated and was consistent.
There was reduced sensation to pin prick and light touch on the ulnar border of the left hand, into the left little finger, and proximally towards the wrist and distal forearm with dysaesthesia over the ulnar distal forearm. Resisted finger abduction and adduction and flexion was mildly reduced. There was no claw deformity of the hand.
Sensation was intact elsewhere, specifically over the dorsum of the hand and in the central and radial aspect of the palm.
Jamar dynamometer grip strength testing - right 27, 27, 27kgf; left 6, 7, 7kgf. There were complaints of ulnar wrist pain on gripping with the left hand. There was full active range of motion of the hands bilaterally.
Scarring
9cm thin, pale, longitudinal, well-healed scar on the ulnar aspect of the distal one-third of the left forearm extending to the wrist, with two well-healed arthroscopic portals over the dorsal wrist.
The worker was conscious of the scar because it is irritated by wearing jewellery on the left wrist and sometimes by clothing, such as jumpers. I clarified with the worker that this sensitivity is in the scar itself and not in the surrounding skin generally.
There is colour contrast with surrounding skin and the worker can locate the scar. There are no trophic changes, no visible staple or suture marks and no contour defect. The location of the scar would be visible with usual clothing being on the wrist and distal forearm. There is no effect on ADL, no requirement for treatment and no adherence.
DETAILS AND DATES OF SPECIAL INVESTIGATIONS
No imaging was brought to this assessment.
IMPAIRMENT
Scarring
After consideration of the scar characteristics, as referred to above, the best fit under the TEMSKI criteria is 1% whole person impairment.
Left wrist
There is impairment from loss of active range of motion at the wrist. Dorsiflexion 40° gives 4% upper extremity impairment.
There is sensory deficit and dysaesthesia affecting the ulnar nerve at the distal left forearm, wrist and hand. This is classed as Grade 2 because of decreased superficial cutaneous tactile sensibility with abnormal sensations that may prevent some activities. This gives a range of 61 – 80% sensory deficit. A value in the mid-range at 70% is chosen.
The maximum sensory deficit or pain for ulnar nerve below mid-forearm is 7% upper extremity impairment. 70% of 7% is 5% upper extremity impairment.
There is also some motor weakness of the intrinsic muscles of the left hand, which is classed as Grade 4, giving a 1 – 25% range. I assess 20% motor deficit. 20% of the maximum 35% for motor deficit for ulnar nerve below mid-forearm is 7% upper extremity impairment.
Because there is loss of active range of motion in the wrist, grip strength cannot be used as a valid measure of permanent impairment.
Combining motor and sensory deficit of ulnar nerve below mid-forearm is 12% upper extremity impairment.
Combining 12% by 4% is 16% upper extremity impairment, equivalent to 10% whole person impairment.
Combining 10% by 1% gives 11% whole person impairment.
Refs: AMA5, ch16, T16-3,16-10,16-11,16-15,fig16-28. SIRA Guidelines 4th Ed cl 2.13.”
The Appeal Panel accepts the detailed findings, reasons and assessments by Dr Oates.
As stated earlier, the MA noted that as regards the issue of scarring, this “was not part of this assessment.”
However, in circumstances where both the independent medical examiner’s had assessed scarring and the MA specifically stated that “the longitudinal scar over the ulnar edge had healed quite well, although this area was tender and there was reduced sensation in the ulnar distribution” it was our view that an assessment was appropriate.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5168/23 |
Applicant: | Judy Hogan |
Respondent: | Mercy Services |
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 Tim Anderson 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 | 18/02/21 | Chap 2 P 10 | P 467 F 16-28 P 469 F 16-31 P 492 T 17-15 P 482 T 16-10 P 439 T 16-03 | 10% | Nil | 10% |
| 2.Scarring | 18/02/21 | TEMSKI | 1% | N/A | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
0