HVTC Pty Ltd v Murgovski
[2024] NSWPICMP 39
•29 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | HVTC Pty Ltd v Murgovski [2024] NSWPICMP 39 |
| APPELLANT: | HVTC Pty Ltd |
| RESPONDENT: | Jamie Murgovski |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 29 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) applied incorrect criteria and erred when assessing permanent impairment of the respondent’s lumbar spine, thoracic spine and right upper extremity; whether MA provided adequate reasons for his assessment of the respondent’s permanent impairment relating to his thoracic spine; Appeal Panel held MA erred in his assessment of the respondent’s permanent impairment with respect to all body parts; respondent re-examined; based on the findings from that re-examination Appeal Panel assessed the degree of the respondent’s permanent impairment from his injury was the same as that which the MA assessed it was; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 September 2023 HVTC Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 August 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT BACKGROUND
Jamie Murgovski, the respondent, was employed by the appellant as a trainee scaffolder. On 4 October 2019 he was holding a 15 to 20kg steel board above his head that he was passing to another worker. The board started to fall backwards pulling on his arms. He felt a pop and an “electric shock” pain in his upper back between his shoulder blades.
The respondent’s solicitors organised for the respondent to be examined by orthopaedic surgeon Dr Drew Dixon on 2 March 2022 who provided a report on 14 March 2022 on various matters relating to the respondent’s injury, including the degree of the respondent’s permanent impairment from his injury. Dr Dixon advised he assessed the appellant had 30% whole person impairment (WPI) from his injury. He advised this comprised 21% WPI relating to the right upper extremity, 6% WPI relating to the thoracic spine and 5% WPI relating to the cervical spine. With respect to his assessment of the respondent’s impairment relating to his thoracic spine, Dr Dixon advised he assessed the respondent’s overall impairment was 7% WPI, which included 2% WPI for the “impaction of activities of daily living”. Dr Dixon also advised that the respondent had pre-existing Scheuermann’s disease, for which he made a deduction of 10%, decreasing his assessment of the respondent’s permanent impairment from his injury relating to his thoracic spine to 6% WPI.
Relying on that report of Dr Dixon, the respondent’s solicitors wrote to the appellant’s insurer on 11 April 2022 advising it that the respondent claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 30% WPI.
The appellant’s solicitors then organised for the respondent to be examined by orthopaedic surgeon Dr Michal Davies on 10 May 2022. In a report of 11 May 2022 Dr Davies advised he assessed the respondent had 19% WPI from his injury, comprising 10% WPI for the right upper extremity, 5% WPI for the cervical spine and 5% WPI for the thoracic spine. Dr Davies advised that the effects of the respondent’s injury on his activities of daily living (ADL) related predominantly to the injury to his shoulder rather than to his cervical spine and that he had not increased his assessment of the respondent’s permanent impairment relating to the cervical or thoracic spine on account of that. Dr Davies did not make a deduction on account of any pre-existing condition the appellant had.
In a supplementary report dated 30 June 2022 the appellant’s solicitors requested from Dr Davies he advised that “it would be reasonable to attribute half of [the respondent’s] impairment to actual physical injury and half to secondary psychological factors”.
On 15 July 2022 the appellant’s insurer wrote to the respondent notifying him under s 78 of the 1998 Act that it disputed his claim for compensation for permanent impairment from his injury. It summarised Dr Davies’ opinion provided in Dr Davies’ reports of 11 May 2022 and 30 June 2022. It advised that Dr Davies’ opinion was that he had 10% WPI from his “compensable workers compensation injury”. That was less than the 10% threshold that his permanent impairment needed to exceed for him to be entitled to compensation for permanent impairment under s 66 of the 1987 Act, and hence its reason for declining his claim for compensation.
The respondent then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation. A delegate of the President referred the matter to the Medical Assessor. The Medical Assessor examined the respondent on 18 August 2023 for the purpose of providing an assessment in response to that referral. As said, the Medical Assessor issued the MAC on 29 August 2023.
In the MAC the Medical Assessor recorded that the respondent was very reluctant to move his right arm during his examination of the respondent and that the respondent protected his right arm. The Medical Assessor recorded he found the respondent had the following range of motion of his shoulders:
Movement
Left
Right
Flexion
180 degrees
90 degrees
Extension
80 degrees
10 degrees
Abduction
180 degrees
80 degrees
Adduction
40 degrees
0 degrees
Internal rotation
80 degrees
20 degrees
External rotation
80 degrees
30 degrees
The Medical Assessor also observed that the respondent demonstrated global sensory range extending up his arm to both pin prick and light touch with no dermatomal pattern and that because of the respondent’s pain and limitation of function in his right arm is not clear.
The Medical Assessor also recorded he found the respondent had restricted asymmetrical rotation of his cervical spine with a negative Romberg’s test, and symmetrical upper and lower limb reflexes. The Medical Assessor in the part of the MAC in which he recorded his findings from his clinical examination did not include any entry relating to the respondent’s thoracic spine.
The Medical Assessor assessed the respondent had 7% WPI relating to his cervical spine. He advised that this assessment was made on the basis of the criteria of Table 15.5 of AMA 5. The respondent fell within DRE Cervical Category 2 of that table because of the respondent’s history of injury and because of the Medical Assessor’s finding the respondent had asymmetrical range of motion of his cervical spine. The Medical Assessor also explained that he assessed “a further 2% for restrictions of activities of daily living”. The Appeal Panel observes that within the MAC the only remark the Medical Assessor made regarding the effect of the respondent’s cervical spine injury on his ADL was that the respondent previously enjoyed bowling but is now unable to do so and previously enjoyed gaming and using computers which he struggles to do with his right arm.
The Medical Assessor also explained in the MAC that he assessed the respondent had 5% WPI relating to his thoracic spine based on the criteria of Table 15.4 of AMA 5. The Medical Assessor said the respondent fell within DRE Thoracic Category II “again on the basis of asymmetry in range of motion and a history of injury”.
In Table 2 within the MAC the Medical Assessor combined those values in accordance with the combined table values of AMA 5 and certified that the appellant had 21% WPI from his injury.
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 respondent should undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that the MAC contained a demonstrable error. Further, the Appeal Panel could not rely on the findings the Medical Assessor made from his examination of the respondent to establish what had to be done to correct that error, and hence it was necessary for the Appeal Panel to examine the respondent so as to obtain the necessary clinical data to attend to that task. The Appeal Panel appointed Dr James Bodel, one of its members, to undertake that examination. His report to the Appeal Panel is set out below in 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.
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 apply the correct criteria when assessing the impact of the respondent’s spinal impairment on his ADL. The appellant submitted that had the respondent applied the correct criteria, specifically the criteria within paragraphs 4.34 and 4.35 of the Guidelines, the Medical Assessor should have increased the WPI he assessed the respondent to have with respect to his cervical spine by 1% WPI only.
The appellant further submitted that the Medical Assessor did not apply the Guidelines correctly when assessing the respondent’s permanent impairment relating to his right upper extremity. The appellant submitted that the Medical Assessor noted inconsistencies when examining the respondent’s right shoulder and because of that the Medical Assessor ought to have done repeated testing of the respondent’s range of motion of his right shoulder. The appellant noted that the Medical Assessor did not within the MAC indicate that he had done repeated testing.
The appellant submitted that it is unclear from the MAC whether the Medical Assessor conducted any examination of the respondent’s thoracic spine. The appellant submitted that the Medical Assessor offered no explanation relating to his examination of the thoracic spine.
In reply, the respondent submitted that based on the evidence, including the reports of Dr Dixon and Dr Davies and a report that the respondent put into evidence from Dr Nicola Gates dated 16 February 2022, it was open to the Medical Assessor to increase the assessment of his permanent impairment relating to his cervical spine by 2% for the impact of his injury to his ADL. The respondent submitted that because the Medical Assessor only referred to his enjoyment of bowling and gaming and using computers, and did not make explicit reference to homecare duties, that it does not follow that the Medical Assessor did not consider homecare duties.
The respondent submitted that the matters the appellant relied on to support its submission that he demonstrated inconsistencies during the Medical Assessor’s examination of his right shoulder do not demonstrate there were inconsistencies. The respondent referred to the report of Dr Davies of 11 May 2022 wherein Dr Davies said there is no objective way to determine whether a person’s range of movement is a true reflection of their range of movement unless there is obvious discrepancy between casually observed movements and formal examination movements.
The respondent submitted that “it cannot be said” that the Medical Assessor did not apply the correct criteria or that his assessment is inconsistent with the evidence. The respondent submitted that “it would have been preferable” for the Medical Assessor to be more precise in his assessment but the respondent contended there were no errors on the face of the MAC.
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 considers that based on the Medical Assessor’s findings from his examination of the respondent’s right upper extremity, the respondent did exhibit inconsistencies. This is because the respondent was protecting his arm and showed a reluctance to move his right arm. Further the respondent exhibited a global sensory change up his arm to both pin prick and light touch in a non-dermatomal pattern. That symptom is inconsistent with any clinical sign.
In that circumstance in accordance with paragraph 2.5 and 1.36 of the Guidelines the Medical Assessor ought to have conducted repeated testing of the respondent’s movements of his shoulders. It is not apparent from the MAC that the Medical Assessor did so. Given that, the Appeal Panel agrees with the appellant’s submission that the Medical Assessor did not apply correct criteria to assess the respondent’s permanent impairment relating to his right upper extremity. Further, the failure of the Medical Assessor to conduct repeated testing, where the respondent exhibited inconsistencies during examination, amounts to a demonstrable error.
The Appeal Panel also considers that the history the Medical Assessor obtained with respect to the impact the respondent’s impairment of his cervical spine has on his ADL is sparse and is such that the Appeal Panel is unable to tell whether there has been a proper application of paragraph 4.33 of the Guidelines. The Appeal Panel observes that paragraphs 4.34 to 4.35 merely provide guidance to a Medical Assessor and are not prescriptive. Nevertheless, it is incumbent upon a Medical Assessor to obtain a history relating to the matters to which reference is made in those paragraphs in order to apply the instruction contained within paragraph 4.33 of the Guidelines. In the Appeal Panel’s view, it is not apparent from the MAC that the Medical Assessor did this. That too amounts to a demonstrable error.
The Appeal Panel also considers when the MAC is considered as a whole there is uncertainty as to whether the Medical Assessor did carry out an examination of the respondent’s thoracic spine. As a consequence of that, it is uncertain whether the Medical Assessor’s assessment relating to the respondent’s impairment of his thoracic spine was based on findings from an examination of the respondent’s thoracic spine or the findings the Medical Assessor made with respect to the respondent’s cervical spine. The Guidelines in paragraph 1.6a require that an assessment of a worker’s permanent impairment be done based upon how the worker presents at the time of assessment. Necessarily therefore, to establish the permanent impairment a worker has from any injury that affects the thoracic spine, it is necessary to carry out an examination of the thoracic spine. In the circumstance where it is unclear whether the Medical Assessor has done that, the Appeal Panel considers that amounts to a demonstrable error.
As mentioned earlier under the heading Preliminary Review, the Appeal Panel considered it was necessary to re-examine the respondent in order that it could re-assess the respondent to correct the matters that the appellant had raised in its appeal and which the Appeal Panel considered were substantiated. Medical Assessor Bodel was assigned that task. His report to the Appeal Panel from his examination is as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W5125/23 |
Appellant: | HVTC Pty Ltd |
Respondent: | Jamie MURGOVSKI |
Date of Determination: |
Examination Conducted By: | Dr James Bodel |
Date of Examination: | 28 November 2023 |
1. The workers medical history, where it differs from previous records
I have carefully read the Medical Assessment Certificate prepared by Dr Robert Kuru regarding Mr Jamie Murgovski. The claimant confirms that the history is accurately recorded in that document.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Murgovski indicated he is restricted in household tasks. He has difficulty doing manual activities. He is able to attend to his self-care.
3. Findings on clinical examination
On clinical examination, I confirm the findings on Page 3 of the Medical Assessment Certificate. I have used a goniometer and have confirmed the restricted range of movement recorded by Dr Kuru for the range of movement in the right shoulder. I have repeated this observation three times and there is a slight variation on repeated active observation of the range of movement but the figures are correct as recorded. The rest of the findings which refer to possible axillary nerve palsy and possible CRPS are consistent with my observations here today and do not change the recorded findings provided by Dr Kuru.
I have examined the thoracic spine and I confirm Dr Kuru's assessment that there is asymmetry of thoracic spinal movement justifying his DRE Thoracic Category II level of assessable impairment.
4. Results of any additional investigations since the original Medical Assessment Certificate
No new investigations or other information has been provided or is relevant in this circumstance.
I therefore confirm that although the reported abnormalities were incomplete in the Medical Assessment Certificate, the clinical findings observed here today confirm his assessable impairment levels.
Signed:
Dr James Bodel
Date: 05 December 2023”
The Appeal Panel adopts the findings of Medical Assessor Bodel from his examination of the respondent and also the additional history he obtained from the respondent.
Based on Dr Bodel’s finding from his examination of the respondent’s right shoulder and the respondent’s thoracic spine, the Appeal Panel assesses the respondent’s impairment with respect to his right upper extremity to be 12% WPI and with respect to his thoracic spine 5% WPI, which is what the Medical Assessor also assessed it to be.
With respect to the impact that the respondent’s impairment to his cervical spine has on his ADL, the Appeal Panel also assesses that as 2% WPI, given that the respondent’s impairment of his cervical spine contributes to his being unable to engage in his prior recreational activities and inhibits his ability to undertake household tasks and yard tasks. The Appeal Panel observes that the respondent’s impairment with respect to his right upper extremity would also contribute to the reduction in the respondent’s ability to engage in recreational activities and household tasks, but since the impairment of his cervical spine also makes a material contribution to this, it is appropriate and consistent with paragraph 4.33 of the Guidelines, that 2% WPI is added to the assessment of his impairment with respect to his cervical spine.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 August 2023 should be confirmed.
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