International Moulded Plastics Pty Ltd v Simamora
[2023] NSWPICMP 569
•13 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | International Moulded Plastics Pty Ltd v Simamora [2023] NSWPICMP 569 |
| APPELLANT: | International Moulded Plastics Pty Ltd |
| RESPONDENT: | Florens Simamora |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Nigel Ackroyd |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 13 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of injuries to cervical spine, bilateral carpal tunnel syndrome and hypertension; Medical Assessor (MA) erred in failing to refer to the IME reports of the respondent and provide reasons for the difference in opinions; Panel called for GP records to review assessment of hypertension; Panel assessed injury to carpal tunnel, bilateral carpal tunnel syndrome and hypertension and arrived at the same assessment as made by the MA; Held - Medical Assessment Certificate was confirmed as the review had not led to a different result. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 June 2023 International Moulded Plastics Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 May 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).
RELEVANT FACTUAL BACKGROUND
The respondent (Ms Simamora) lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 12 August 2022 in which she claimed 46% whole person impairment (WPI) of the left upper extremity, right upper extremity, cervical spine, cardiovascular system and scarring/TEMSKI as a result of injuries sustained in her employment with the appellant.
The matter proceeded to an arbitration before Member Philip Young on 9 November 2022. On 27 January 2023, Member Young made the following orders:
“1. By reason of the nature and conditions of the applicant’s employment with the respondent between October 2013 and 22 July 2015 the applicant suffered an aggravation injury to her pre-existing right shoulder, right elbow, both wrists and hands and neck.
2. The applicant suffered a consequential condition in respect of her left upper extremity (left shoulder) due to overuse of her left upper extremity to spare her right arm and shoulder.
3. The applicant suffered a consequential condition in the nature of hypertension as a result of the combination of injury and consequential conditions described above.
4. The applicant’s permanent impairment was fully particularised on 22 September 2021 and this date is the deemed date of injury for the purposes of s 4 (b) (ii) of the Workers Compensation Act 1987 (the 1987 Act).
….”
The matter was referred to the Medical Assessor, Dr Mark Burns, on 21 April 2023 for assessment of (WPI)of the right upper extremity (shoulder, elbow, wrist and hand), left upper extremity (shoulder, wrist and hand), cervical spine and cardiovascular symptoms (hypertension) with the deemed date of injury being 22 September 2021.
The Medical Assessor examined Ms Simamora on 26 April 2023 and assessed 7% WPI of the cervical spine, 13% WPI of the right upper extremity, 10% WPI of the left upper extremity and 10% of the cardiovascular system (hypertension). The combined total was 35% WPI as a result of the injury deemed to have occurred on 22 September 2021.
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.
The appellant requested that Ms Simamora be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Simamora to undergo a further medical examination because there was sufficient evidence on which to make a determination.
The Appeal Panel issued a Direction on 7 September 2023 requiring that the clinical notes and records, including records of blood pressure readings, from the respondent worker’s general practitioner, Dr Diep Giang, from 1 December 2021 to date be produced.
On 19 September 2023, Dr Giang produced various records. On 25 September 2023, Ms Simamora’s solicitors filed an Application to Admit Late Documents attaching a copy of Dr Giang’s clinical notes and records to the Commission.
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 the documents produced in response to the Direction dated 7 September 2023 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.
The appellant’s submissions included the following:
(a) Ground A – the MAC contained a demonstrable error because the Medical Assessor did not address all the evidence provided to him.
(b) In relation to the carpal tunnel syndrome, the Medical Assessor failed to address the evidence in Dr Wallace’s report of 5 May 2020 that Ms Simamora’s carpal tunnel had resolved with surgery. Dr Wallace’s opinion was not considered by the Medical Assessor, nor did he provide a response to this opinion.
(c) In relation to the cervical spine, Dr Wallace reported there were no complaints of symptoms in the cervical spine and carried out an examination, which the Medical Assessor failed to consider when providing his reasons for difference in opinion. The Medical Assessor fell into error by assessing impairment to the cervical spine and of carpal tunnel syndrome without referring to the reports of Dr Wallace.
(d) In relation to hypertension, Associate Professor Haber found 2% WPI in respect of hypertension. Associate Professor Haber issued his first report addressing the lack of evidence, namely, blood pressure recordings and was then provided with the blood pressure recordings. Associate Professor Haber classified Ms Simamora as being asymptomatic in stage one hypertension with normal blood pressure readings on medication and without any evidence of end organ damage.
(e) The Medical Assessor failed to provide his reasons for the difference in assessment with Associate Professor Haber, who provided a measured opinion for his findings.
(f) The Medical Assessor provided comments in the MAC regarding the medical opinions of Drs Lai and Herman but did not refer to the appellant’s medical evidence at any point in the MAC. The failure to conduct the examination in accordance with the Guidelines by properly recording the findings and providing reasons for the difference in opinion was both a demonstrable error and the application of incorrect criteria.
(g) Ground B – interference with activities of daily living (ADL) - The Medical Assessor applied incorrect criteria and / or made a demonstrable error by incorrectly increasing the base impairment. The Medical Assessor assessed 7% WPI which was a combination of 5% WPI for DRE Cervical Category II in addition to 2% WPI for the effects of ADL.
(h) The Medical Assessor stated Ms Simamora could self-care but had difficulty with “heavier chores around the house especially in cleaning and cooking” and an allowance of 2% was made for the impact of her cervical spine injury on ADL. This was not explained in any detail.
(i) As to the indoor activities, Ms Simamora’s daughter provided assistance but there was no indication as to whether Ms Simamora previously performed this activity alone or whether this arrangement had been in place prior to the injury. Additionally, Ms Simamora spent a period of time in Indonesia.
(j) There was no explanation as to whether the impact of ADLs was due to her bilateral upper extremities or due to her cervical spine. The Medical Assessor did not explain whether it was the impact of the bilateral shoulder or wrist pathology which interfered with ability to carry out her ADL. In circumstances where the Medical Assessor did not clearly explain whether the cervical spine or bilateral upper extremities caused the ADL interference, the Medical Assessor incorrectly applied an impairment assessment with respect to ADL.
(k) The appropriate assessment of the cervical spine, carpal tunnel and hypertension would result in an assessment of below 20% WPI. Furthermore, the application of 2% WPI for the impact of ADL was not adequately explained and should be removed.
(l) The MAC should be revoked and substituted with a Medical Assessment Certificate to be issued by the Appeal Panel, which ought to be assessed as 18% WPI, as follows: (a) cervical spine: 5%; (b) left upper extremity (based on range of motion only): 7%; (c) right upper extremity (based on range of motion only): 4%, and (d) hypertension: 2%.
Ms Simamora’s submissions included the following:
(a) Ground A – the Guidelines require the Medical Assessor to utilise clinical assessment of the claimant as they present on the day of the assessment “taking into account the claimant’s medical history and all available relevant medical information” in order to determine the degree of permanent impairment. The Medical Assessor had all the documentation that was included in the ARD and the Reply which included the reports of Drs Wallace and Haber. It was clear that the Medical Assessor reviewed the available medical evidence and complied with the Guidelines and requirements of the AMA 5 in the assessment of Ms Simamora.
(b) Based upon his clinical assessment of Ms Simamora, as required under the Guidelines and AMA 5, the Medical Assessor found that Ms Simamora’s carpal tunnel had not resolved with surgery. Under present symptoms the Medical Assessor recorded Ms Simamora’s symptoms in her left and right upper extremities including sensory changes, weakness and pain in the hands and fingers.
(c) In relation to hypertension, the Medical Assessor took a history of the condition, recorded details of her present symptoms, and undertook blood pressure testing. The Medical Assessor recorded that Ms Simamora’s presentation was “consistent with the history obtained and the documentation reviewed”.
(d) No error was identified in the assessment of Ms Simamora, nor the application of the Guidelines or AMA 5 in relation to the assessment of the WPI arising out of the carpal tunnel syndrome and hypertension. The appellant argued that the opinions of Drs Wallace and Haber ought to be preferred when it came to the degree of permanent impairment. It was not the role of the Medical Assessor to limit the assessment to a review of the Independent medical examiners’ evidence and then select the opinion that the Medical Assessor preferred. Rather, it was the role of the Medical Assessor to undertake an examination of the worker, including a review of the available documentation, and assess the degree of permanent impairment utilising their clinical assessment of the worker on the day they present. The Medical Assessor was not to be limited by the findings of other doctors. The appellant did not illustrate any application of incorrect criteria and/or demonstrable error by the Medical Assessor.
(e) Ground B – the Medical Assessor correctly assessed the impairment with respect to ADL. The Medical Assessor determined that an additional 2% WPI after “considering the impact of her cervical spine pain and discomfort on activities of daily living”. The Medical Assessor made it clear that he based his assessment of WPI on: “The history I obtained from Ms Simamora. My physical examination of Ms Simamora. My review of her documentation.”
(f) When applying the Guidelines at 1.24 and 1.25 and AMA 5, the impact of the injury or illness on ADL was considered in the assessment of the impairment of the spine and, in this case, the cervical spine. The Medical Assessor was not considering the impact of the injury on ADL in the assessment of the upper or lower extremities. In reading the MAC, given that the impairment was given in relation to the cervical spine, it was clear that the Medical Assessor had considered the impact of ADL in relation to the impairment to the cervical spine.
(g) The Medical Assessor had before him the documentation contained within the ARD and the Reply which included Ms Simamora’s statements dated 7 August 2017, 27 October 2017 and 15 March 2022. Those statements set out the impact that injuries, including her cervical spine impairment, had on her everyday life.
(h) The statements of Ms Simamora and the medical evidence that was before the Medical Assessor were evidence of how the cervical spine injury impacted various aspects of ADL. Her other injuries also impacted on her ADL but that was not what the Medical Assessor was considering when he was determining impact of ADL in accordance with the Guidelines and AMA 5.
(i) It was clear the history that the Medical Assessor took was that any activity involving movement of the neck increased pain and would be impacted by Ms Simamora’s cervical spine injury. There was no application of incorrect criteria or any demonstrable error made by the Medical Assessor.
(j) The MAC did not involve demonstrable error nor the application of incorrect criteria and should be upheld.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground A – failure to refer to the reports of Dr Wallace and Associate Professor Haber
Carpal tunnel syndrome
The appellant submitted that the Medical Assessor failed to properly record the findings of Dr Wallace and provide reasons for difference in opinion with respect to assessment of the bilateral carpal tunnel syndrome and cervical spine to Dr Wallace.
The Medical Assessor “Under History Relating to the Injury” noted that Ms Simamora developed symptoms in both hands including numbness and tingling in around March or April 2014. He wrote:
“She reported her injuries to Dr Giang, her General Practitioner who referred her to Dr Scott, Hand Surgeon. She was subsequently referred for nerve conduction studies carried out by Dr Rail. The nerve conduction studies revealed bilateral carpal tunnel syndrome, slightly worse on the right than the left. She was also diagnosed as having a mild lateral epicondylitis in the right elbow. A cortisone injection into the right elbow was carried out on 15 July 2015. Additionally, ultrasound and x-ray of the right shoulder was carried out on 26 August 2015 revealing some mild rotator cuff tendonitis. Dr Scott carried out a right carpal tunnel decompression in October 2015 and a left carpal tunnel decompression on 25 February 2016. She noted improvement in both hands following the operations but reported that neither of them came back to normal”.
Under “Present Symptoms” the Medical Assessor wrote:
“With respect to her right wrist and hand she reports occasional swelling in the dorsum of the hand with overuse. She also has sensory changes in the right hand, which mostly involve her thumb, index and middle fingers. These sensory changes are now constant. She believes that she also has a degree of weakness in her right hand associated with the pain…
With respect to the left wrist and hand she also reports some swelling in the dorsum of the hand with slight sensory change involving the thumb, index and middle fingers. She states though that it does feel slightly better than her right hand. There is not the same level of weakness”.
Under “Findings on Physical Examination” the Medical Assessor wrote:
“Examination of both wrists and hands revealed a normal range of movement in the wrists, thumbs, and fingers. Neurological examination of both hands revealed decreased sensation over the thumb, index and middle fingers on both hands, the right slightly greater than the left. Tinel’s sign was mildly positive on the right and left hand.
This was for carpal tunnel syndrome. Strength in both hands in the median nerve distribution was 4+/5.
Two point discrimination testing at 10mms was only mildly affected on both sides in the thumb, index and middle fingers”.
In his Reasons for Assessment, the Medical Assessor stated that in making the assessment of WPI, he had taken into account the history he obtained from Ms Simamora, his physical examination of Ms Simamora and his review of her documentation. The Appeal Panel noted that the documentation was identified by the Medical Assessor as that listed in the Amended Referral by the Commission for the assessment. The Medical Assessor wrote:
“With respect to the right upper extremity …With respect to her carpal tunnel syndrome I note that the sensory component under Table 16-15 of AMA 5 would be 39% upper extremity impairment for total loss. From Table 16-10 I believe her sensory loss would be classified as Grade 3. I believe though she is at the lower end of the range and would have 26% of the total. This would give 10% upper extremity impairment (rounded). With respect to the motor impairment I note that her motor function is only slightly impacted. From Table 16-11 it would be assessed as Grade 4. From 16-15 a complete loss would be 10% upper extremity impairment. 20% of 10% would give 2% upper extremity impairment. These would be combined to give 12% upper extremity impairment. A combination of 12% upper extremity for her carpal tunnel syndrome with 11% upper extremity impairment for decreased range of movement in the right shoulder would give 22% upper extremity impairment. This would then be converted to 13% whole person impairment. I note that there is no deduction.
With respect to the left upper extremity… I note that the range of movement in the left wrist was normal and would give no assessable impairment. Her carpal tunnel syndrome in the left hand would give a similar assessment to that found in the right hand. She would have 10% upper extremity impairment for sensory loss and 2% upper extremity impairment for motor loss. This would give 12% upper extremity impairment. A combination of 12% upper extremity impairment for carpal tunnel syndrome with 6% upper extremity impairment for range of movement would give 17% upper extremity impairment. This would be converted to 10% whole person impairment.”
The Appeal Panel accepted that the Medical Assessor made no reference to the reports of Dr Wallace in the MAC. Dr Wallace had expressed a medical opinion in which he expressed the view that Ms Simamora’s carpal tunnel had resolved with surgery. The Medical Assessor did not set out in the MAC the reasons why his opinion differed from the opinions of these doctors.
The Appeal Panel considered that the Medical Assessor erred in failing to refer to the reports of Dr Wallace and to provide reasons for the difference in opinion in relation to the assessment of carpal tunnel syndrome.
The Appeal Panel reviewed the evidence in relation the assessment of the bilateral carpal tunnel syndrome.
Dr Wallace in his report dated 8 May 2020 noted under “Present complaints “:
“At her left wrist, she notes no pain at the joint but intermittent numbness globally about the left hand.
At her right wrist, she notes no pain at the joint but intermittent global numbness about the right hand”.
Dr Wallace then noted under “Clinical Examination”:
“Examination of the left wrist shows a 2cm volar longitudinal scar which has healed to a fine white line which is almost invisible. She has an active range of movement at the left wrist of dorsi flexion 60°, palmar flexion 70°, ulnar deviation 40° and radial deviation 20°. She has a full range of movement at the left hand. There is no swelling at the left hand.
There are no tender areas. She is neurovascularly intact distally.
Examination of her right wrist shows a 2cm volar longitudinal scar which has healed to a fine white line and is almost invisible. She has an active range of movement of dorsi flexion 60°, palmar flexion 70°, ulnar deviation 40° and radial deviation 20°. There is no effusion at the joint. There are no tender areas.
Examination of the right hand shows a full range of movement at the fingers and thumb.
There is reduced light touch sensation at the volar aspect of the thumb, index and middle fingers of her right hand”.
As noted above, Dr Wallace considered that Ms Simamora’s traumatic bilateral carpal tunnel syndrome had resolved.
Dr Wallace in his report dated 26 November 2021 under present complaints noted:
“She notes intermittent paraesthesia at the dorsum of her hands bilaterally.
She complains of weakness of grip at her bilateral hands and stiffness at her cervical spine.
At her right elbow, she notes intermittent aching pain at the lateral epicondyle.
She notes no current pain at her bilateral wrists.”
Dr Wallace under “Clinical Examination” noted:
“Examination of the bilateral wrists showed a range of movement of dorsi flexion 40°, palmar flexion 30°, ulnar deviation 40° and radial deviation 30°.
At the left wrist, there is a 2cm longitudinal scar at the base of the palm which has healed to fine white line and is minimally visible. There was reduced light touch sensation at the tip of the left ring finger.
At the right wrist, there is a 2cm volar longitudinal scar which has healed to fine white line and is minimally visible. There was reduced light touch sensation at the tip of the thumb and middle fingers at her right hand.”
Dr Min Fee Lai, in his report dated 21 February 2021, noted that Ms Simamora was experiencing numbness over her right thumb, index, middle and ring fingers, experiencing slower response to heat and sharp objects, complained of a weak grip and had difficulty opening jars. In relation to the left hand/wrist, she complained of similar symptoms top those in the right hand, but with less intensity although the symptoms would increase with increased use of the left hand.
Dr Lai noted under “Physical Examination”:
“Examination of both hands and wrists revealed longitudinal volar wrist scar across the wrist crease measuring 3 cm in length. The scar was white in colour and flat.
No thenar atrophy was present in both hands. The Tinel sign over the median nerve over the left and right wrists was positive. The Phalen's and reverse Phalen's signs were negative. The sensation to both hands in the distribution of the median nerve was altered to pinprick with the left side being more sensitive. The two-point discrimination to pinprick in both hands varied between 10 and 15 mm.
Both thumb abduction and thumb and index pinch strength were decreased in both hands.
There was less power in the righthand.
The active range of movements of the fingers, thumbs and wrists were all even and normal bilaterally.”
Dr Lai expressed the view that Ms Simamora had decreased sensation in both hands in distribution of median nerve and loss of power of hand grip in both hands. Dr Lai assessed the right carpal tunnel syndrome as having a Grade 3 sensory deficit with a 40% deficit which equalled 16% upper extremity Impairment (UEI). He assessed the motor deficit as Grade 4 with 20% deficit which equalled 2% UEI. Dr Lai then combined 16% UEI with 2% UEI which equalled 18% UEI. Dr Lai assessed the left carpal tunnel syndrome as having 12% UEI for sensory deficit and 1% UEI for motor deficit, which was combined to equal 13% UEI or 8% WPI.
In her statement dated 15 March 2022, Ms Simamora stated:
“40. I see swelling in all of my fingers and thumb on my right hand. I do get swelling and pins and needles in my left hand as well, but it is worse on my right hand. The swelling gets worse when I use my hands to do anything like washing the dishes or lifting up plates to put them away.
41. It's very difficult to form a fist on right hand.
42. My right hand shakes when I try to use my right hand to lift or carry anything heavier than 2kgs or if it is too long. I remember that I was carrying a big glass and I dropped it.
42. I get pins and needles in both of my wrists and my hands when I try to use my hands for anything such as washing the dishes or lifting up plates to put them away.
43. I feel pain in my right hand when I write with it”.
The appellant submitted that during the assessment with Dr Wallace on 5 May 2020, Ms Simamora made no complaint of her bilateral wrists. However, Dr Wallace did report that although she noted no pain at the joints of both wrists, she had intermittent numbness globally about both hands.
The Appel Panel accepted the findings made by the Medical Assessor on physical examination. The Medical Assessor reported that neurological examination of both hands revealed decreased sensation over the thumb, index and middle fingers on both hands, the right slightly greater than the left. He found Tinel’s sign was mildly positive on the right and left hand. The Medical Assessor noted that strength in both hands in the median nerve distribution was 4+/5 and two point discrimination testing at 10mms was only mildly affected on both sides in the thumb, index and middle fingers.
The findings of the Medical Assessor in respect of the bilateral carpal tunnel syndrome were similar to the findings made by Dr Lai. The Medical Assessor did not find that the carpal tunnel syndrome had resolved. The Appeal Panel accepted the findings made by the Medical Assessor on examination and agreed with the Medical Assessor that Ms Simamora still had symptoms of carpal tunnel syndrome. The clinical findings made by the Medical Assessor were consistent with bilateral carpal tunnel syndrome. The Appeal Panel agreed with the assessment of the Medical Assessor in respect of the bilateral carpal tunnel syndrome and found no error in his methodology or calculation of upper extremity impairment relating to the bilateral carpal tunnel syndrome.
Cervical Spine
The appellant submitted that the Medical Assessor failed to consider the reports of Dr Wallace when providing his reasons for difference in opinion in assessment of the cervical spine.
The Medical Assessor “Under History Relating to the Injury” the Medical Assessor noted:
“In February 2016 she was referred to Dr John Ireland, Orthopaedic Surgeon due to the pain in her right shoulder and neck. She was subsequently referred for an MRI scan of the right shoulder and neck, which revealed degenerative change in the cervical spine and mild to moderate tendonitis in the rotator cuff on the right shoulder”.
Under “Present Symptoms” the Medical Assessor wrote:
“Cervical spine:
She reports pain mostly in the right side of her neck, greater than the left side. The pain is present on activity or with certain movements of the neck. Activity involving neck movement increases the pain. She stated that she has been recommended for neck surgery but this was declined by the insurance company.”
Under “Findings on Physical Examination” the Medical Assessor wrote:
“Cervical spine:
Examination of the cervical spine revealed tenderness in the right paravertebral muscles. There was no evidence of muscle spasm or muscle guarding. Flexion and extension were 50% of predicted. Rotation to the left and right was also 50% of predicted. Lateral tilt to the left was 25% of predicted but to the right 50% of predicted.
She reported pain at end of range of all movements on the right hand side.
Neurological examination of both upper limbs revealed normal tone and reflexes.
Sensation was reported as being decreased in the right arm in a global pattern. Power was also decreased in the right hand slightly more than the left hand.
The circumference of the right upper arm was 33cms, which was equal to the left upper arm. The circumference of the right forearm was 26.5cms, which was also equal to the left forearm”.
In his Reasons for Assessment, the Medical Assessor stated that in making the assessment of whole person impairment, he had taken into account the history he obtained from Ms Simamora, his physical examination of Ms Simamora and his review of her documentation.
The Medical Assessor wrote:
“With respect to her cervical spine I note that she has dysmetria in the cervical spine as well as pain and discomfort and reduced range of movement. From Table 15-5 of the 5th Edition of the AMA Guides she would be classified as DRE Category 11 or 5% whole person impairment. Considering the impact of her cervical spine pain and discomfort on activities of daily living I believe 2% whole person impairment would be appropriate. This would be added to give 7% whole person impairment. I note that there is no evidence of pre-existing cervical spine impairment before she commenced work in 2013. Therefore, no deduction would be made”.
The Appeal Panel accepted that the Medical Assessor made no reference to the reports of Dr Wallace in the MAC. Dr Wallace expressed the opinion that Ms Simamora’s cervical spinal condition has resolved. The Medical Assessor did not set out in the MAC the reasons why his opinion differed from the opinion of Dr Wallace.
The Appeal Panel considered that the Medical Assessor erred in failing to refer to the reports of Dr Wallace and to provide reasons for the difference in opinion in relation to the cervical spine.
The Appeal Panel reviewed the evidence in relation the assessment of the cervical spine.
In her statement dated 15 March 2023, Ms Simamora wrote:
“51. I feel pain in my neck, both of my shoulders, more so on my right shoulder, both of my wrists and my right elbow. It is constant.
52. There are days where I can drive and my neck doesn't cause me any problems. But, there are other days where my neck pain gets bad and it makes thing like checking my blind spot and driving in general painful.”
Dr Wallace in his report dated 8 May 2020 under “Present Complaints” wrote:
“Ms Simamora complains of no current pain at her cervical spine.
She previously noted intermittent mild aching pain at the right paracervical region at C6/7 only in cold weather”.
Under “Clinical Examination”, Dr Wallace wrote:
“Examination of her cervical spine showed no swelling or deformity. She had a range of movement of flexion 70°, extension 40°, left rotation 70° and right rotation 70°, left lateral tilt 30° and right lateral tilt 30°. There are no tender areas.
Neurological examination of her upper limbs shows equal and symmetrical reflex.
Her power and light touch sensation are intact.
Her arm circumference measured 35cm bilaterally.”
Dr Wallace expressed the following opinion on causation:
“Ms Simamora’s cervical spinal condition has resolved. She complains of no current pain at her cervical spine. She has no evidence of ongoing disability at her cervical spine on clinical examination at the time of review on 5 May 2020.”
Dr Wallace in his report dated 26 November 2021 under present complaints noted:
“Ms Simamora now complains of intermittent aching pain at the cervical spine and right paracervical region at C5, C6 and C7 radiating to the superior border of the right trapezius muscle and the lateral deltoid region of the right shoulder.
The pain is worse on washing the dishes, sweeping, repetitive use at her upper limbs or lifting and is relieved by rest.”
Dr Wallace noted that Ms Simamora complained of stiffness at her cervical spine. Under “Clinical Examination” he wrote:
“Examination of her cervical spine shows no swelling or deformity. She has a range of movement of flexion 60°, extension 40°, left rotation 50° and right rotation 50°, left lateral tilt 20° and right lateral tilt 20°. There is mild tenderness at the C6/7 spinous process.”
Dr Min Fee Lai, in his report dated 21 February 2021, noted:
“Neck: She is complaining of pain in the neck, especially on right side, which would occur with increased use of her right arm. This pain in the neck is constant and does radiate into the right shoulder as well. There is some stiffness of her neck as well”.
Under “Physical examination”, Dr Lai noted:
“Examination of her neck revealed it to be in midline with flattening of the normal lordotic curve.
There was tenderness to palpation over the right mid-to-lower cervical spine region with underlying muscle guarding.
Her active range of movements are as follows:
Forward flexion three-quarter normal range.
Extension normal range.
Right lateral flexion, normal range.
Left lateral flexion, three-quarter range.
Right lateral rotation, half normal range with pain.
Left lateral rotation, three-quarter normal range.
Vertical compression caused pain on the right side of her neck.
It was difficult to test her muscle power due to her shoulder and elbow pain on the right side. No muscle atrophy of the upper limbs was present.
The sensation to her upper limbs is normal except in the distribution of the median nerves in both hands.
Her biceps, brachioradialis and triceps reflexes were all even and normal bilaterally.”
Dr Lai made the following assessment in relation to the cervical spine:
“She has asymmetrical loss of range of movements (dysmetria and non-verifiable radicular complaints). There are also positive imaging studies of pathology at the cervical spine. Therefore, it is my opinion that her impairment is classified as DRE Cervical Category II with a base impairment of 5%. Her activities of daily living have also been impacted being restricted in her domestic chores and recreational activities. 2% Whole Person Impairment is therefore added to the base impairment of 5%. The total impairment is therefore 7% Whole Person Impairment”.
The Appel Panel accepted the findings made by the Medical Assessor on examination. The Medical Assessor reported that there was dysmetria in the cervical spine as well as pain and discomfort and reduced range of movement. The findings of the Medical Assessor in respect of the cervical spine were similar to the findings made by Dr Lai. The Appeal Panel did not accept the opinion of Dr Wallace, as expressed in his report of 8 May 2020, that the condition in the cervical spine had resolved. Indeed, in his next report dated 26 November 2021, Dr Wallace noted that noted Ms Simamora complained of intermittent aching pain at the cervical spine and right paracervical region at C5, C6 and C7 radiating to the superior border of the right trapezius muscle and the lateral deltoid region of the right shoulder.
The Appeal Panel agreed with the assessment of the Medical Assessor in respect of the cervical spine and found no error in his methodology or calculation of upper extremity impairment relating to the cervical spine.
Hypertension
The appellant submitted that the Medical Assessor failed to provide his reasons for the difference in assessment with Associate Professor Haber.
The Appeal Panel accepted that the Medical Assessor made no reference to the report of Associate Professor Haber in the MAC. Associate Professor Haber expressed a medical opinion which differed from that of the Medical Assessor in relation to the assessment of hypertension. The Medical Assessor did not set out in the MAC the reasons why his opinion differed from the opinions of Associate Professor Haber and the Appeal Panel considered that this was a demonstrable error.
The Appeal Panel reviewed the evidence in this matter.
“Under History Relating to the Injury”, the Medical Assessor noted:
“I noted from the referral that she had also been diagnosed with hypertension in April 2016. Prior to this multiple blood pressure recordings had been noted as normal by her General Practitioner. Following her development of problems in both hands as well as her neck and right shoulder she stated that she had put on a degree of weight and also was no longer able to exercise. It has been accepted that her hypertension is secondary to her lack of exercise, the medication she was taking and also her increased weight. She stated that she has seen a specialist for the hypertension and has been commenced on medication. I note though that in the documentation most of the reports states that her hypertension is still under treated”.
Under “Present treatment” the Medical Assessor noted: “At the current time her medication consists of Telmisartan 40mgs a day. This is for her hypertension”.
Under “Present Symptoms” the Medical Assessor wrote:
“Hypertension:
She reported that she is currently on medication from her General Practitioner for hypertension. She has her blood pressure measured whenever she sees her doctor. She stated that the normal range of her blood pressure is around 150/85-90.
She states though that a few blood pressure recordings have been higher than this.
She has not recently seen a medical specialist for her hypertension”.
Under “Findings on Physical Examination” the Medical Assessor wrote:
“Her blood pressure testing was done on a number of occasions in both the left and right arms. The initial test revealed 182/109 with the second test several minutes later being 175/102. After more than 5 minutes of resting her blood pressure was repeated and was 164/98. Her pulse was noted to be normal.”
The Medical Assessor wrote:
“With respect to her hypertension I note that from Table 4-1 of the 5th Edition of the AMA Guides that her current recordings and recent ones would place her in Stage 2 Hypertension. Under Table 4-2 I note that her Stage 2 would be classified as either Class 1 or Class 2. Considering her medication and also her significant diastolic and systolic recordings I believe she should be best be placed at the lower end of Class 2, which is 10% whole person impairment”.
Dr Mark Herman, consultant cardiologist, in a report dated 13 August 2020, found on examination that Ms Simamora was severely hypertensive with blood pressure of 186/106, 177/102 and 163/109 despite medical therapy. Dr Herman made an assessment of stage 2 hypertension which was poorly controlled on single agent therapy and assessed 10% WPI.
In a report dated 16 December 2020, Associate Professor Richard Haber, cardiologist, stated that he could not assess the severity of Ms Simamora’s hypertension based on only the readings obtained by him and Dr Herman.
In a report dated 4 July 2022, Associate Professor Haber, noted that he had been provided with the blood pressure recordings from her local doctors’ notes. Dr Haber provided an explanation of the recordings as follows:
“On 11 December 2017 her BP was 131/84 and she was started on Micardis 20 mg daily then (Why?) Her BP remained below 145 systolic until 26 August 2019 when her BP was 149/89 and Micardis was increased to 40 mg daily After this her systolic BP remained at 145 on all occasions during which time she continued on Micardis 40 mg daily, with the last reading on 3 December 2021 being 142/89. She can be classified therefore in stage one hypertension based on Table 4-1 and in Class I based on Table 4-2 being asymptomatic in stage one hypertension with normal blood pressure readings on medication and without any evidence of end organ damage”.
Associate Professor Haber assessed 2% WPI in respect of hypertension.
There was a significant difference in the methodology used by Associate Professor Haber and by both the Medical Assessor and Dr Herman in the assessment of hypertension. The Medical Assessor and Dr Herman relied only on blood pressure readings taken during their examinations, whereas Associate Professor Haber took into account various blood pressure readings between 11 December 2017 and 3 December 2021.
The Appeal Panel considered that an assessment based on a more extended period of blood pressure readings was more reliable for the purposes of assessing hypertension.
Dr Ackroyd of the Appeal Panel conducted a review of the clinical notes that were produced to the Appeal Panel and provided the following table of measurements.
Date
Systole
Diastole
Occasion
Medication
13/08/2009
124
70
GP
17/09/2009
121
69
GP
antenatal
29/10/2009
131
69
GP
antenatal
02/11/2009
132
73
GP
antenatal
22/12/2009
137
77
GP
antenatal
07/03/2013
October 2013
124
COMMENCED WORK WITH APPELLANT
69
GP
05/04/2014
119
67
GP
13/06/2015
121
71
GP
06/08/2015
137
77
GP
08/08/2015
114
72
GP
29/08/2015
128
66
GP
13/07/2015
121
71
GP
July 2015
CEASED WORK DUE to INJURY
29/08/2015
128
66
GP
03/09/2015
135
65
GP
21/09/2015
134
67
GP
08/01/2016
135
55
GP
03/02/2016
133
69
GP
11/04/2016
152
96
GP
18/06/2016
143
89
GP
18/08/2016
139
82
GP
03/10/2016
156
94
GP
18/10/2016
127
73
GP
03/04/2017
146
84
GP
11/08/2017
137
78
GP
22/08/2017
151
93
GP
22/08/2017
Micardis
Micardis 20mg
01/09/2017
125
67
GP
22/09/2017
130
75
GP
24/10/2017
131
77
GP
11/12/2017
131
84
GP
05/01/2018
122
73
GP
12/01/2018
156
93
GP
26/02/2018
141
84
GP
20/03/2018
137
83
GP
15/06/2018
135
78
GP
10/08/2018
139
75
GP
06/09/2018
138
77
GP
08/02/2019
124
74
GP
20/05/2019
143
90
GP
23/07/2019
146
78
GP
05/08/2019
163
99
GP
Micardis 40mg
09/03/2020
114
67
GP
05/06/2020
149
93
GP
13/08/2020
163
109
Herman
13/08/2020
177
102
Herman
19/09/2020
133
81
GP
24/11/2020
145
89
GP
16/12/2020
169
93
Haber
16/12/2020
149
91
Haber
16/12/2020
155
85
Haber
05/02/2021
135
81
GP
02/11/2021
132
77
GP
03/12/2021
144
94
GP
The Appeal Panel considered these readings which were taken over the period 13 August 2009 to 3 December 2021. The Appeal Panel classified Ms Simamora under Table 4-1 of AMA 5 at p 66, as having Stage 1 Hypertension while on Micardis 40mg. Under Table 4-2 of AMA 5 at p 66, Stage 1 hypertension would be classified as either Class 1 or Class 2. Ms Simamora was assessed as a mild class 2 at 10% WPI.
Ground B – activities of daily living
The appellant submitted that the Medical Assessor applied incorrect criteria and / or made a demonstrable error by incorrectly increasing the base impairment by 2% WPI for the effects of ADL. The appellant argued that there was insufficient detail provided and no explanation as to whether the impact of ADLs was due to her bilateral upper extremities or due to her cervical spine.
Under “present symptoms”, the Medical Assessor recorded: “The pain is present on activity with certain movements of the neck. Activity involving neck movement increases the pain.”
Under “Social Activities/ADL”, the Medical Assessor wrote:
“She reported that she is divorced and currently lives in a house with her 2 children aged 25 and 13. She has difficulty with heavier chores around the house especially in cleaning and cooking. On these occasions her daughter gives her assistance. She reported though she is independent in self-care”.
In the MAC under “Reasons for Assessment” the Medical Assessor wrote: “Considering the impact of her cervical spine pain and discomfort on activities of daily living I believe 2% whole person impairment would be appropriate”.
In her statement dated 15 March 2023, Ms Simamora wrote:
“51. I feel pain in my neck, both of my shoulders, more so on my right shoulder, both of my wrists and my right elbow. It is constant.
52. There are days where I can drive and my neck doesn't cause me any problems. But, there are other days where my neck pain gets bad and it makes thing like checking my blind spot and driving in general painful.
…..
54. I struggle to put on my bra. When I try to put on my bra, it hurts my neck and right shoulder when I try to strap on the bra. So when I do need to put one on, I ask my daughter or my son to help me strap it on.
55. When I try to take off my shirt, I have to bend my neck over as I pull it up. However, doing this hurts my neck. It also causes me pain in my right shoulder to try and lift the shirt off me. So when the pain in my neck and right shoulder get really bad, I ask my son or daughter to take off my shirt.
56. If I have an itch in my back, I will ask my son or daughter to help me stratch it. My neck hurts when I try to scratch my back.
57. When I shower, I have to use a long stick to reach help me wash my back. When I try to reach behind me, I feel pain and discomfort in my right shoulder and neck.
….
66. I try and stay at home whenever I can. On my good days, I try and do some house work. I can put clothes into a washing machine or do some light cleaning. But if I need to hang the clothes or clean heavy pots and pans, I will ask my children to help do that. I feel more pain in both my shoulders, my neck and both of my wrists if I try to do the hanging of the washing or cleaning of the heavy pots and pans.
…
72. Before my injury, I use to do all the cleaning for my home and my children. But now, because of my injury, I leave my home as a mess because it's easier.
73. It makes me sad that I have to rely on my children to help me with the house and to look after me. I am their mother, I should be the one to look after them”.
Dr Wallace in his report dated 26 November 2021 under present complaints noted:
“Ms Simamora now complains of intermittent aching pain at the cervical spine and right paracervical region at C5, C6 and C7 radiating to the superior border of the right trapezius muscle and the lateral deltoid region of the right shoulder.
The pain is worse on washing the dishes, sweeping, repetitive use at her upper limbs or lifting and is relieved by rest.”
In a report dated 20 August 2021, Dr Min Fee Lai under “Activities of Daily Living” wrote:
“Self-care
Ms Simamora is able to cope with difficulty using mainly her left arm.
Domestic chores
Ms Simamora is restricted in her domestic chores, minimal use of her right arm and with the chores mainly carried out by her left arm. She has great difficulty with regard to her heavy chores such as cooking, cleaning, laundry, vacuuming, and other heavy tasks around the premises. She tries her best using her left arm with the lifting limit of between 1 and 2 kg. Between 80% and 90% of the tasks are carried out by her left hand. These tasks are carried out slowly, for example, taking 30 minutes to wash the dishes with frequent breaks in between. She would carry out some domestic chores amounting to about two hours per day.
Her daughter would help her about 10 hours per week, as she is still working and attending university. Her son is totally dependent as he is only 11 years old.
Recreational activities
Ms Simamora does not have any hobbies at all.”
Dr Lai made the following assessment in relation to the cervical spine:
“She has asymmetrical loss of range of movements (dysmetria and non-verifiable radicular complaints). There are also positive imaging studies of pathology at the cervical spine. Therefore, it is my opinion that her impairment is classified as DRE Cervical Category II with a base impairment of 5%. Her activities of daily living have also been impacted being restricted in her domestic chores and recreational activities. 2% Whole Person Impairment is therefore added to the base impairment of 5%. The total impairment is therefore 7% Whole Person Impairment”.
The appellant argued that there was no indication as to whether Ms Simamora previously performed “indoor activities” alone or whether this arrangement whereby her daughter assisted her had been in place prior to the injury. However, the Appeal Panel noted that Ms Simamora, in her statement dated 15 March 2023, said that before her injury, she used to do all the cleaning for her home and her children. The appellant also referred to Ms Simamora having spent a period of time in Indonesia. However, the appellant failed to explain the relevance of that to the assessment of ADL.
The appellant submitted in circumstances where the Medical Assessor did not clearly explain whether the cervical spine or bilateral upper extremities caused the ADL interference, the Medical Assessor incorrectly applied an impairment assessment with respect to ADL.
The Appeal Panel noted that the Medical Assessor stated that “Considering the impact of her cervical spine pain and discomfort on activities of daily living I believe 2% whole person impairment would be appropriate”. It was clear that the impairment rating for ADL was given in relation to the cervical spine pain and discomfort and the Medical Assessor did not take into account the impact on ADLs due to the bilateral upper extremity injuries. Further, there is no requirement that the Medical Assessor had to explain how the impact of pain arising from the bilateral upper extremities and lumbar spine had an impact on ADLs. The Medical Assessor was required to give a rating for the impact of ADL using paragraphs 4.34 and 4.35 of the Guidelines, which was what he did.
Section 1.24 of the Guidelines provides:
“Many tables in AMA 5 (eg in the spine section) give class values for particular impairments, with a range of possible impairment values in each class. Commonly, the tables require the assessor to consider the impact of the injury or illness on activities of daily living (ADL) in determining the precise impairment value. The ADL which should be considered, if relevant, are listed in AMA 5 Table 1-2 (p 4). The impact of the injury on ADL is not considered in assessments of the upper and lower extremities.”
The Appeal Panel was satisfied that the Medical Assessor applied the Guidelines at 1.24, 1.25. 4.34 and 4.35 and in AMA 5.
It was evident from Ms Simamora’s statements, the medical evidence before the Medical Assessor and his findings on examination that the cervical spine injury impacted various aspects of ADL. The Appeal Panel found no error or any application of incorrect criteria in the assessment of ADL. Further, the Appeal Panel considered that the Medical Assessor provided adequate reasons for his assessment of ADL.
In summary, the Appeal Panel agreed with the assessments made by the Medical Assessor in respect of the bilateral carpal tunnel syndrome and cervical spine, including the assessment of ADL. Therefore, the Appeal Panel assessed Ms Simamora as having 7% WPI of the cervical spine, 13% WPI of the right upper extremity, 10% WPI of the left upper extremity and 10% WPI for hypertension. These assessments were combined to produce a total of 35% WPI.
In summary, the assessment of total WPI by the Appeal Panel was the same as that made by the Medical Assessor. In those circumstances the Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel has determined that the MAC issued on
11 May 2023 should be confirmed.
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