Kristall v Nepean Blue Mountains Local Health District
[2022] NSWPICMP 275
•12 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kristall v Nepean Blue Mountains Local Health District [2022] NSWPICMP 275 |
| APPELLANT: | Rika Kristall |
| RESPONDENT: | Nepean Blue Mountains Local Health District |
| APPEAL PANEL: | Member Jane Peacock Medical Assessor James Bodel Medical Assessor Margaret Gibson |
| DATE OF DECISION: | 12 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Bilateral upper extremities assessment; Appellant alleged demonstrable error in the assessment by the Medical Assessor (MA) and sought to rely on a statement of the appellant about the conduct of the MA during the assessment; Held – the Appeal Panel declined to admit the statement and found no demonstrable error; the MA was entitled to rely on his clinical findings on the day of assessment; Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 April 2022 Ms Rika Kristall lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Long, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 14 March 2022.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against), 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.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The appellant requested that she be re-examined by a MA who is a member of the Appeal Panel on the basis of a submission that the MA “appears to have a view that these work injuries are not work related, did not fully examine the Applicant or heed her symptoms”.
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error. Error must be found before conducting re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
Fresh evidence
The appellant relies on the ground of appeal of the availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
Attached to the submissions is a statement of the appellant dated 25 March 2022 that post dates the medical assessment and goes to the conduct of the MA.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) statement of the appellant dated 25 March 2022.
The appellant submitted as follows:
“The Applicant seeks to rely on her statement dated 25/3/2022 in relation to the manner in which the examination was conducted which was unusual and seemingly inappropriate for an Independent Assessor on behalf of the PIC.”
The respondent objected to the admission of the statement.
The Appeal Panel determines that the evidence should not be received on the appeal because the medical assessment is presumed to be conducted with regularity, the MA has no opportunity to rebut the allegations of the appellant, and the medical assessment certificate is able to be reviewed for demonstrable error without the need to admit additional evidence which has little probative value and is potentially prejudicial because it cannot be tested. Complaints about the conduct of a MA should be made to the appropriate department of the Personal Injury Commission.
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.
Medical Assessment Certificate
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
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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 matter was referred to the MA as follows:
“● Date of injury: Notionally occurred on 25 February 2019 as a result of employment before that date.
· Body parts/systems referred: Left upper extremity (wrist), right upper extremity (wrist)
· Method of assessment: Whole Person Impairment.”
The MA issued a certificate as follows:
| 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 AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Left Upper Extremity (left hand) | 25 February 2019 (nominal) | Chapter 2: pp 10-12 | Page 476, 479: Figures 16-28, 16-31 | 0% | Nil | 0% |
| Left Upper Extremity (left wrist) | 25 February 2019 (nominal) | Chapter 2: pp 10-12 | Page 476, 479: Figures 16-28, 16-31 | 0% | Nil | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 0% | |||||
The worker appealed.
The appellant submitted that the MA made demonstrable errors as follows:
“A. The Assessor erred in failing to perform his statutory role in assessing an accepted injury.
b. The Assessor erred in making his own findings that the Applicant does not and did not suffer a Work Injury.
c. The Assessor appeared to engage in an unusual and personal discussion with the Applicant inappropriate for the role of an AMS rather than perform his statutory role of an AMS and examine the Applicant.
d. The AMS reports the examination was performed (at the Applicant’s request) “without contact”.
e. The AMS disagrees with Dr Perla for the respondent that the Applicant has “Bilateral Carpal Tunnel Syndrome.”
f. The AMS disregards the reported pain in the Applicant’s arms, the hands “tingling”, the colour changes in the hands (see by him), swelling in the fingers (also seen by him) and pain in neck and shoulders.”
The respondent submitted that the MA did not make any demonstrable errors and the MAC should be confirmed.
The role of a MA is to conduct an independent examination on the day of assessment.
The MA recorded a detailed history of injury and its sequelae which included a detailed recording of what the appellant reported as ongoing difficulties with various activities that aggravate her symptoms as follows:
“Following work in October 2018, she developed burning pain in her right and left arms and this followed a busy day in her work at a computer typing and undertaking data entry together with telephone calls; email; work with the fax.
At that time, she was working up to 20 hours per week over five days per fortnight.
She rested but symptoms continued.
She saw her general practitioner, Dr Harman. Medication was prescribed but her symptoms continued. Later in October 2018, she saw a physiotherapist who diagnosed ‘tenosynovitis’ about her right and left wrists. Splintage of her wrists did not provide relief.
07 January 2019, she attempted to return to restricted duties and work hours up to four hours per day but this involved computer work and data entry along with other office duties. Her symptoms persisted and she ceased work because of her pain associated with work on 23 January 2019. She noted that her symptoms increased at work but were relieved by rest, although they never entirely resolved.
General practitioner record, 17 January 2019, Dr B De Silva records, ‘Pain in lower back and right shoulder… right supraspinatus tendon tear…’.
Consultation 18 January 2019, Dr Denise Baker recorded, ‘… Rika says that she has developed some pain in the sacrum, and she notices that this has developed since she commenced work. After working for four hours on 14 January – developed sacral and neck pain… after working for less than two hours – gets quite a lot of pain… I think Rika will need to get a Disability pension.
Reason for visit: cervical radiculopathy.
Consultation with Dr Baker 25 January 2019 records, ‘Has developed additional symptoms. Since returning to work on 7th January, has had an exacerbation of lower back pain, and become very depressed and anxious. Rika first reported her low back pain to Dr T Towpik on 18 August 2018. She had a CT scan which showed moderate degenerative changes in the mid and lower lumbar spine. The CT scan also showed extrinsic compression of the exiting right L5 nerve root which was thought to be the probable cause of the symptoms… Reason for visit: bursitis, subdeltoid
Cervical radiculopathy
Right DeQuervain’s tenosynovitis
Lumbar radiculopathy
Worker’s compensation certificate…’.
Ms Kristall noted ongoing pain in her arm aggravated by limited personal typing. With regard to her arms various diagnoses were made including DeQuervain’s tenosynovitis right and left wrist, evidently confirmed by ultrasound examination of wrists; bilateral carpal tunnel syndrome (confirmed) by EMG study indicating moderate right and left carpal tunnel syndrome; cervical radiculopathies associated with pre-existing degenerative changes cervical spine.
15 May 2019, steroid injection right carpal tunnel was ineffective.
02 September 2019, open surgical decompression right wrist performed. Postoperatively she had a good deal of pain related to the scar and this gradually settled but overall the operation was of no benefit and she was not prepared to have the similar operation on the left wrist.
She received other treatments including physiotherapy and acupuncture.
Somatic therapy.
Occasional Panadol and anti-inflammatory drugs.
08 April 2020, further EMG study performed by Dr M Shaffi, Neurologist, concluded, ‘The motor responses were normal. Median sensory potentials were delayed. Ulnar SNAP’s were normal. The neurophysiological features are consistent with mild bilateral carpal tunnel syndromes…’.
· Present treatment:
· Ongoing acupuncture with some benefit.
· Occasional anti-inflammatory drugs and Panadol.
· Osteopathic treatment.
· Present symptoms:
· Varying sharp pain right and left arm occasionally associated with varying throbbing pain in her arms and a feeling of discomfort in her arms.
· Right hand variable tingling usually involving the thenar, lateral and anterior aspects of the hand.
· Left hand similar though less marked symptoms.
· Her symptoms are worse early in the day and following activity later in the day as well as during the night. Her symptoms overall have diminished since she has discontinued paid employment.
· Colour change in hands. Occasional colour change is noted in cold weather.
· Swelling of fingers. Is aware of ‘puffiness’ of fingers and because of this and irritation of her rings she has ceased wearing them.
· Pain in neck and shoulder.
· Aware of some pain posterior right neck and right shoulder.
· Urinary and Bowel Symptoms: No specific abnormal symptoms.
· Gastrointestinal: She denied gastrointestinal symptoms although a general practitioner entry, 10 May 2019 and subsequent recorded GORD.
· Emotional Factors: Anxiety/depression have occurred because of her alleged work-related injury. She indicated that her provided work station at work was inadequate and that her work was responsible for her bilateral carpal tunnel syndromes.
A mental care plan has been formulated with some benefit. Overall, her injury has impeded her ability to work and to engage in ongoing formal education.
· Details of any previous or subsequent accidents, injuries or condition:
· 40+ years ago fell from a horse and sustained fractured right neck of humerus with no subsequent disability.
· 2010 in a surfing accident sustained fracture of greater tuberosity left humerus in association with a dislocation left shoulder. She was off work, as a masseur therapist four months because of this injury.
· There was no history of previous injury to her neck or other regions of her right or left arm.
· General Health before Injury:
Medical History
· Described as overall good.
· Tobacco: Nil.
· Alcohol: Minimal, although with continuation of her present symptoms this is increasing.
· No other history of arthritis, gout or of significant emotional problems prior to her work injuries.
· Hypertension for which she takes occasional tablet and monitors her own blood pressure, indicating a recent recording was 150/100.
Review of patient health summary dated August 2019 indicates
· Active past history: 2008 menopause
· 01/02/2012 irritable bowel syndrome
· 18/09/2012 hyperlipidaemia
· 22/04/2016 hot flushes
· 04/06/2016 hypertension
· 2017 degenerative disc disease, lumbar spine
· 12/10/2018 right supraspinatus tendon tear
Medications at that time included
· Esomeprazole 40 mg daily (possibly for GORD)
· Estalis Continuous 50/140 patch – weekly – menopausal symptoms
· Karvea 75 mg daily for hypertension which she takes irregularly depending on her measured blood pressure
· Background and Work History:
· Ms Kristall was born in Sydney and attained her HSC.
· 1976, secretarial diploma from the Metropolitan Business College and then worked as a secretary/receptionist with a number of companies.
· 1986, completed Tertiary Preparation Course.
· 2007-2009, Diploma of Remedial Massage; Certificate IV in Aromatherapy; Certificate IV in Community Welfare.
· Continually involved throughout with volunteer work with many local organisations.
· Her daughter was born 26 years ago.
· 2008-December 2016, employed as a spa therapist with contracted clients. Some of this work continued until March 2018.
· November 2015, commenced work at Penrith Community Health Centre for NSW Health as an intake officer. She was employed five days per fortnight. This employment following passing a medical assessment prior to her work.
· Various ergonomic assessments were undertaken but were overall unsatisfactory in that her equipment was not adjusted to her specific requirements.
· July 2018, her employment increased 28-32 hours per week and this was responsible for the onset of her symptoms in her arms and lower back. Staff reduction increased her work pressure. Ms Kristall in her statement of 21 June 2019 indicated, ‘Thus, I noticed the repetitive strain injury intensely around 12 October 2018. Prior to this I noticed aches and pains in my shoulders and especially my right wrist and forearm. My arms would ache by the end of the day and at times I had to stop work because of the pain. If I kept going it was very painful and uncomfortable. Work culture was to ignore the pain and continue working. Psychosocial stress was high for me in this team and is a potential factor in the development of Carpal Tunnel Syndrome. I noticed the injury disrupting my sleep. Symptoms included sharp intermittent pain in the wrists, forearms, elbows and shoulders; tingling, aching, throbbing and numbness in the same areas. I noticed that it felt worse when I was performing my work duties and better when I was not working…’.
· Ms Kristall has remained unemployed since ceasing her employment on 23 January 2019.
· Significant Family and Personal History:
· Ms Kristall is single and lives alone. A 26-year-old daughter lives in Sydney.
Ms Kristall lives in a rented duplex with about six steps. There is a minimal garden.Other Activities:
· Walking: She usually walks up to 20 minutes although this varies depending on her symptoms. She does not run.
· Standing: Not adversely affected.
· Bending: Not adversely affected.
· Kneeling/Squatting: Not adversely affected.
· Sitting: Usually limited particularly when she is undertaking computer work at home which is minimal 1-2 hours per week.
· Lifting: Minimal because of lower back discomfort and tends to aggravate symptoms in her upper arms.
· Stairs: She can negotiate stairs.
· Slopes/Uneven ground: Negotiated with difficulty.
· Driving: She drives a manual vehicle which aggravates the symptoms about the shoulders and in her upper arms and hands. She is able to turn her head and neck as required.
· Home Activities: Can cook as necessary but is minimal. Other home activities including cleaning and housework are undertaken in her own time. She has no difficulty in undertaking bathroom or toilet requirements or dealing with her clothes. She has slight difficulty because of discomfort in her arms hanging clothes on the line.
· Shopping: Minimal and she avoids lifting heavy objects.
· Gardening: Nil.
· Recreational Restrictions Since Injury: She enjoyed flamenco dancing which she undertook regularly but this was discontinued in about November 2018 because of her ongoing symptoms. She had undertaken yoga but noted that some of the exercises aggravated the symptoms in her wrist. Previously she had enjoyed bush walking but has ceased doing this because of her ongoing symptoms.”
The MA conducted a clinical examination within the limits of the appellants request for no physical contact. The MA noted under “consistency of presentation” that a satisfactory examination was still possible as follows:
“Ms Kristall presented a clear history and was most co-operative, although refusing any touching throughout the examination. She was reluctant about goniometer measurements, particularly regarding her shoulders and wrists. These restrictions, however, did not adversely affect a satisfactory examination.”
The MA’s clinical findings on examination are detailed as follows:
“Ms Rika Kristall presented for her appointment on time. She had received appropriate Covid vaccinations. The consultation continued for 50 minutes. She was a pleasant interesting person and presented a clear history although focussed on her work injury involving her hands and on ‘carpal tunnel syndrome’.
Rather surprisingly during examination during active movement she insisted be undertaken without contact. She was dubious about the goniometer used to measure angles of movement of her shoulders and wrists.
Weight: 69 kg Height: 167 cm Right-handed.
Head and Neck:
Cervical Spine (Cervicothoracic):Flexion, extension, rotation right and left, angulation right and left were all 90% of normal but she complained of discomfort at the limits of movement in rotation and angulation and indicated some discomfort in right fingers during these movements. There was no paravertebral muscular guarding or spasms.
Neurological examination of the upper extremities did not reveal any differential muscular wasting about the upper arms or forearms.
The reflexes were equivocal and she complained of pain as reflexes were taken.
Right
Left
Triceps
++
+
Biceps
?
+
Brachioradialis
Nil
Nil
Finger
+
+
Variable non-dermatomal sensory loss noted light touch and 2-point discrimination about the hands.
Thoracic outlet – there was no clinical evidence of thoracic outlet compromise right or left. No Horner’s syndrome. Normal contraction latissimus dorsi and serratus anterior right and left.
Thoracic Spine (Thoracolumbar):Flexion, extension, rotation right and left symmetrical and not reduced.
Lumbar Spine (Lumbosacral): Flexion, extension, right and left angulation right and left not impaired and symmetrical.
No paravertebral muscular guarding or spasm.
No neurological abnormality lower extremities where all reflexes were present and symmetrical. Plantar reflex downgoing.
No abnormal dermatomal or other sensory loss.
Right and left straight leg raising not impaired.
Upper Limbs:
Shoulders: No differential muscular wasting. Right and left long head of biceps intact. Movement of the right and left shoulders in all directions was symmetrical and not restricted.
Elbows: No deformity.
Wrists: Measuments recorded with a goniometer on three or more occasions.
| Active ROM LEFT | Active ROM RIGHT | |
| Flexion | 60° | 60° |
| Extension | 60° | 60° |
| Radial deviation | 20° | 20° |
| Ulnar deviation | 30° | 30° |
Fingers: Possible slight swelling fingers right and left fingers. Both hands and fingers were equally reddened. Movement of fingers not restricted and she could make a normal fist. No specific muscular wasting muscles right or left hand.
Sensory Loss: No specific abnormal sensory loss. Light touch 2-point discrimination noted in fingers right and left hands.
Lower Extremities: No specific abnormality noted.”
The appeal Panel notes that the clinical findings of the MA are detailed and that the MA is entitled to rely on his clinical findings and his clinical expertise on the day of assessment in assessing the degree of permanent impairment, if any, as a result of the injuries referred to him.
The MA reviewed the radiological investigations as follows:
“● Copies of imaging study reports or images were not provided.
Quoting record of investigation in the report of Dr Todd Gothelf, Orthopaedic Surgeon, 25 November 2020
‘28 August 2018, CT scan lumbar spine. There is moderate degenerative spondylosis of the mid and lower lumbar spine. There is extrinsic compression of the exiting right L5 nerve root’.
· 28 August 2018, x-ray pelvis and right hip:
‘Moderate degenerative osteoarthritis of the right hip joint. The pelvis is normal’.
· 31 October 2018, ultrasound bilateral wrists:
‘Mild osteoarthritic changes in the wrist joint and wrist joint effusion in the left wrist. Mild extensive tenosynovitis of the right wrist. Equivocal tear of the scapholunate ligament. Degenerative changes in the right wrist and first carpometacarpal joint’.
· 28 November 2018, MRI spine:
‘Mild to low cervical spondylosis with neural and exit foraminal narrowing and nerve compression at the level of the foramen at C3/4, C4/5, C5/6, C6/7’.
· Dr Thomas De Silva, Orthopaedic Surgeon in his report of 15 February 2019 indicated that:
‘The MRI of 27 November 2018 was of the cervical spine. He examined the films and indicated revealed normal disc heights and normal intervertebral foraminae but there was some age-related facet joint changes…’.
· 03 December 2018, bilateral shoulder ultrasound:
‘Bilateral full thickness and partial thickness tears of the supraspinatus tendon. Bilateral subdeltoid bursitis…’.
· 02 January 2019, x-ray left wrist:
‘Normal…’.
· Dr Thomas De Silva, regarding x-ray left wrist indicated:
‘Normal wrist bones and carpal bones…’.
No further imaging study reports were provided."
The MA summarised his diagnosis as follows:
“summary of injuries and diagnoses:
Ms Rika Kristall who is now 63 years of age stated that as a result of her work as an Intake Officer, employed by the State of New South Wales (Nepean Blue Mountains LOC; Health District) she began to note pain in her shoulders, forearms, wrists and fingers. These symptoms persisted in spite of conservative treatment with analgesics and anti-inflammatory drugs and referral to a number of specialists. Various diagnoses were made including DeQuervain’s tenosynovitis right and left wrists; bilateral carpal tunnel syndrome; rotator cuff tears in either shoulder; degenerative changes spinal spine with radiculopathy.
EMG studies upper extremities revealed bilateral moderate carpal tunnel syndrome.
Injection of the right carpal tunnel with steroid and local anaesthetic on 15 May 2019, provided no relief.
Decompression of the right carpal tunnel by open operation on 02 September 2019 was unsuccessful and resulted in postoperative scar pain which ultimately resolved. Ongoing conservative treatment included physiotherapy, acupuncture and osteopathic treatment. She requires ongoing Panadol and occasional nonsteroidal anti-inflammatory drugs.
It is noted that in 2018/2019, she was also complaining of lower back pain which she attributed to her work.
She has ongoing symptoms in her right and left arms, aggravated by physical activity including typing. As a result of her work injury and the subsequent processes involved with workers compensation, she has developed features of anxiety and depression.
Because of her ongoing symptoms she has been unable to work since February 2019.
On examination today, no clinical evidence of right or left carpal tunnel syndrome was evident. There was no evidence of tenosynovitis about the wrists. With regard to carpal tunnel syndrome, specific sensory loss in the distribution of the median nerve right and left hand and fingers was not identified; there was no significant thenar muscular wasting or any other muscular wasting right and left hand which could be attributed to median nerve injury.
No specific abnormality was noted in her neck although she complained of some pain on the limits of movement and discomfort in the right arm. No neurological abnormality secondary to cervical spine pathology was found in the upper extremity. There was no clinical evidence of a thoracic outlet syndrome.
Although previous ultrasound of shoulders revealed degenerative changes in the rotator cuff no clinical abnormality was noted in the right or left shoulders.
No clinical abnormality was noted in the lumbar spine or lower extremities.
Although the history provided by the worker suggests a work-related injury to her upper extremities, in retrospect it is considered most unlikely that she sustained any significant right or left carpal tunnel syndrome or right or left tenosynovitis of the right and left wrist as a result of her work and, further, if those diagnoses did exist they would have resolved with her inactivity following her discontinuing her work and the evident activities which caused her symptoms.
Although she has degenerative changes in the cervical spine there is no clinical evidence of radiculopathy and no specific abnormality of the cervical spine.
The degenerative changes in her right and left shoulders are not work-related and not related to her present symptoms.
No specific diagnosis can be made for her genuine, work-related symptoms.
There is no ongoing evidence of persisting right or left carpal tunnel syndrome or right or left tenosynovitis.”
The MA explained his assessment of impairment as follows:
“In making this assessment I have taken full account of right and left wrists where there was no restriction of movement in either direction, right or left wrist. There was no clinical evidence of carpal tunnel syndrome including specified sensory loss distribution median nerve or any other nerve, including the ulnar nerve right and left hands. There was no characteristic muscular wasting seen in carpal tunnel syndrome, particularly involving the thenar eminence. Function of her right and left hand and fingers appeared normal.
No specific abnormality was noted related to her cervical spine and there was no clinical evidence of radiculopathy. No specific abnormality was noted of her shoulders, elbows or soft tissues right and left upper extremity.
a. An explanation of my calculations (if applicable)
Impairment is made by reference to:
PIC,NSW Workers’ Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition, 1 March 2021:
Chapter 2: Upper Extremity; Pages 10-12
and
AMA 5th Edition:
Wrist movement: There is no restriction of movement of right or left wrist flexion, extension, radial deviation, ulnar deviation referring to Pages 467 and 469, Figures 16-28,16-31.
Impairment: 0% Whole Person Impairment
There is no clinical evidence of ongoing carpal tunnel syndrome right or left wrists or hands in spite of an EMG study of 08 April 2020, indicating, ‘Neurophysiological features are consistent with mild bilateral carpal tunnel syndrome’. This, in view of normal findings is insufficient to determine an impairment associated with carpal tunnel syndrome, right or left wrists/hands. No peripheral neurological nerve deficit was identified to satisfy an impairment using AMA 5, Page 492, Table 16-15.”
The Appeal Panel notes that the MA is charged with the statutory obligation to conduct an independent assessment. He has to assess impairment based on his clinical findings using his clinical expertise in accordance with the criteria in the Workcover Guides.
The MA is not bound to accept the onion of the other experts whose opinions are in evidence although he needs to provide a brief explanation of why his opinion differs. The MA has adequately explained the difference in opinion as follows:
“Dr Thomas De Silva, Orthopaedic Surgeon, reports dated 15 February 2019, 23 August 2019 and 14 January 2021.
In the final report Dr De Silva indicates under Diagnosis, ‘My opinion remains unchanged as in my previous report. I think she has got ‘Tech neck’ or work-related aggravation of cervical brachialgia and she has age-related degenerative changes in the cervical spine… it is likely that the nature and conditions of her work caused the cervical spine or ‘Tech neck’’, or static overloading of her cervical brachial region and she has had residual cervical stiffness without cervical radiculopathy.
Later in the report he indicated, ‘I am not convinced on the available evidence that she has bilateral carpal tunnel problem. I think she has residual neck stiffness without cervical radiculopathy…’. He determined an impairment regarding her cervical spine as DRE Cervical Category II in the range of 5% to 7% WPI.
Dr De Silva indicated that the argument against a diagnosis of carpal tunnel syndrome was the fact that she received no relief by right carpal tunnel injection with steroid or operative decompression of the right carpal tunnel. Her symptoms have persisted in spite of these treatments.
Comment: I am in agreement with this statement but found no abnormality of her cervical spine and no rateable impairment cervical Spine.
25 November 2020, Dr Todd Gothelf, Orthopaedic Surgeon, report in which he indicated under Diagnosis and Opinion:
‘… as a result of the work injury Rika has the following diagnosis:
· Right wrist DeQuervain’s tenosynovitis
· Right carpal tunnel syndrome
· Rika underwent right carpal tunnel release September 2019. After surgery Rika has persistent right wrist pain and symptoms with her use of her right hand.
· Left carpal tunnel syndrome. Rika has persistent left wrist pain and symptoms with use of the left wrist…
Rika has the following diagnoses that are not related to the workplace injury:
· Cervical spine spondylosis
· Right hip moderate hip degenerate arthritis
· Lumbar spine spondylosis…’.
Based on a persisting diagnosis of carpal tunnel syndrome right and left hands Dr Todd Gothelf determined an impairment right 17% WPI, left 17% WPI. Total impairment 31% Whole Person Impairment. In his calculations it is noted that Dr Gothelf has determined the impairment based on using Table 16-15, Page 492 AMA 5, based on sensory deficit or pain. However during his examination Dr Gothelf did not describe any sensory abnormality right or left hand, indicating 2-point discrimination was normal, although he noted tenderness at both right and left carpal tunnels, ‘Tinel’s sign negative, Phalen’s test reproduced pain’.
Moreover, the pain the patient described did not involve specific distribution branches of the median nerve in the right or left hand.
It is therefore considered that there is no basis for a sensory impairment, median nerve right or left hand to be made and this is substantiated by the clinical findings during the present consultation.
21 January 2021, Dr Sam Perla, Occupational Physician report in which he states under Conclusions:
‘Clinically Ms Kristall does present with mild bilateral carpal tunnel syndrome. I cannot explain why she has radiating symptoms up both upper limbs’.
I do not agree with this conclusion, which appears to be based solely on the EMG report of 08 April 2021, indicating, ‘Mild bilateral carpal tunnel syndrome…’.”
Whilst imaging might report bilateral carpal tunnel syndrome, the MA has found no clinical evidence of bilateral carpal tunnel syndrome. The MA is entitled to rely on his clinical findings on the day of examination.
After thorough review the Appeal Panel can discern no error and accordingly the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 March 2022 should be confirmed.
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