Ingegneri v The Peninsula Montessori Association Ltd

[2022] NSWPICMP 507

DETERMINATION OF APPEAL PANEL
CITATION:	Ingegneri v The Peninsula Montessori Association Ltd [2022] NSWPICMP 507
APPELLANT:	Delia Ingegneri
RESPONDENT:	The Peninsula Montessori Association Ltd
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Greg McGroder
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	12 December 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal from 10% whole person impairment (WPI) assessment; arithmetical error alleged; whether corrected calculation increased entitlement; Held – respondent conceded mathematical error but Medical Assessor had not considered contralateral joint pursuant to Chapter 2.20 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; contralateral baseline limited by 4% upper extremity impairment; Medical Assessment Certificate revoked and 9% WPI substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 20 September 2022 Delia Ingegneri, 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 (MA), who issued a Medical Assessment Certificate (MAC) on 23 August 2022.

2. 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.

3. 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.

4. 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 the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

1. On 18 July 2022 the delegate of the President referred this matter to the MA for an assessment of WPI caused by injury to the cervical spine, right upper extremity and scarring (TEMSKI), which occurred on 6 September 2016.

2. Ms Ingegneri was employed as a teachers’ assistant with The Peninsula Montessori Association Ltd (the respondent) when she tripped as she was walking on her way to work. She injured her right shoulder, which later studies demonstrated had caused a torn rotator cuff.

3. The MA assessed 5% WPI for the right upper extremity, 5% WPI for the cervical spine, and 0% for scarring (TEMSKI), giving 10% WPI combined total.

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.

2. The appellant did not seek to be re-examined by a Panel MA. The issue before the Panel concerned the correct calculation of the measurements taken by the MA and thus no re-examination was required.

EVIDENCE

Documentary evidence

1. 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.

Medical Assessment Certificate

1. The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions which been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The sole ground of appeal pertained to an error in calculation of the right upper extremity impairment.

THE MAC

1. The MA recorded his measurements at point 5 of the MAC[1], recording measurements for both the left and the right shoulders. He explained his calculation at 10b:[2]

   “Assessment of range of motion of the shoulder was undertaken according to AMA-5, page 476 Figure 16-40, page 477 Figure 16-43 and page 479 Figure 16-46 giving an 8% upper extremity impairment on the basis of restricted range of motion. According to AMA-5, page 439, Table 16-3 this converts to a 5% whole person impairment.”

SUBMISSIONS

[1] Appeal papers page 33.

[2] Appeal papers page 35.

The appellant

1. The appellant accepted the range of motion measurements recorded by the MA for the right shoulder, but submitted that he had applied incorrect criteria in converting his measurements to the appropriate WPI.

2. The correct calculation would have resulted in an assessment for the right upper extremity of 7% WPI, it was contended.

The respondent

1. The respondent agreed that the appellant’s contention was correct, and that a 7% WPI ought to have been assessed.

2. However, it submitted, after making some submissions we had difficulty following, that the appellant had failed to incorporate into her calculations the provisions of Chapter 2.20 of the Guides, and that accordingly the assessment for the right upper extremity should be 4% WPI.

DISCUSSION

1. The respondent is correct.

2. The error accepted by the parties was that when the upper extremity measurements were added together by the MA the total should have been 11% upper extremity impairment (UEI), and not 8% UEI. The Panel has confirmed those calculations. The conversion of 11% UEI by virtue of Table 16-3 of AMA 5 (at p 439) gives a 7% WPI.

3. However, Chapter 2.20 of the Guides provides:

   “2.20 When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543)”.

4. The MA took the appropriate measurements of the contralateral left shoulder at [5] of the MAC.[3] As indicated, the appellant accepted the accuracy of the measurements carried out by the MA regarding the right shoulder, and there is no reason to doubt the measurements of the contralateral joint. Those measurements demonstrated that the left shoulder had less than average mobility, and there has been no suggestion that it was not ‘normal/uninjured.’

   [3] Appeal papers page 34.

5. The respondent kindly reproduced the relevant Figures in AMA 5 to submit that the range of motion in the left shoulder was so limited, and the Panel also confirmed those calculations. As noted in the table below, the range of movement on the left side equates with 4% UEI.

   Left Shoulder Movements

Movement	Range	% Upper extremity impairment
Flexion	170°	1
Extension	20°	2
Abduction	170°	0
Adduction	30°	1
Internal rotation	80°	0
External rotation	80°	0
Total	4%

1. It can be seen that when the baseline movements of the uninjured left shoulder are subtracted from the restriction in range of movement measured in the right shoulder, the resultant UEI is 11% - 4% = 7%. This converts under Table 16.3 at AMA 5 p 439 to 4% WPI.

2. When added to the 5% WPI awarded for the cervical spine, the final entitlement is seen to be 9% WPI.

3. For these reasons, the Appeal Panel has determined that the MAC issued on 23 August 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:	W3879/22
Applicant:	Delia Ingegneri
Respondent:	The Peninsula Montessori Association Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Rob 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 NSW workers compensation guidelines	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)
Right Upper Extremity	6 September 2016	Chapter 2.20	Chapter 16 P 476 Fig 16-40 p 477 Fig 16-43, P 439 Fig 16-46	4%	0		4%
Cervical Spine	6 September 2016	Chapter 4	5%	0		5%
Scarring	6 September 2016	Chapter 14	0	0		0
Total % WPI (the Combined Table values of all sub-totals)						9%