Latif v Curie AZ Pty Ltd Ltd
[2022] NSWPICMP 340
•25 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Latif v Curie AZ Pty Ltd Ltd [2022] NSWPICMP 340 |
| APPELLANT: | Nooria Latif |
| RESPONDENT: | Curie AZ Pty Ltd |
| Appeal Panel: | Member Jane Peacock Medical Assessor Drew Dixon Medical Assessor David Crocker |
| DATE OF DECISION: | 25 August 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Assessment of permanent impairment in respect of consequential condition in the right shoulder; the Medical Assessor (MA) made a 4/5th deduction under section 323 of the Workplace Injury Management and Workers Compensation Act1998 for osteoarthritis; a deduction can only be made if the pre-existing condition; abnormality or injury has contributed to the level of permanent impairment assessed; the deduction must not be at odds with the available evidence; the MA deducted 4/5th on the basis of a constitutional osteoarthritic condition with no available evidence to suggest that the osteoarthritic condition pre-existed the injury; there was available evidence that supported a 1/10th deduction being radiological evidence consistent with a past fracture and the degenerative change secondary to that past trauma has contributed to the assessment of the overall level of permanent impairment; Held — Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 April 2022 Ms Nooria Latif (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on
28 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):
· 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 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.
The appellant did not request a re-examination. As a result of that preliminary review, the Appeal Panel determined that the worker need not undergo a further medical examination because while the Appeal Panel found error there was sufficient material before the Appeal Panel to allow a determination to be made.
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:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 19 August 2002
· Body parts/systems referred: Cervical spine
Left upper extremity (shoulder)
Right upper extremity (shoulder - consequential injury)
· Method of assessment: Whole person impairment”
The MA issued a MAC certifying as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in 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 | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 19/08/2002 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 5% | nil | 5% |
| Left upper extremity (shoulder) | 19/08/2002 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 10% | nil | 10% |
| Right upper extremity (shoulder – consequential injury) | 19/08/2002 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 10% | 4/5 | 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
The worker appealed. The appeal is limited to the right upper extremity. The overall assessment of impairment of the right upper extremity of 10% is not the subject of complaint on appeal. The appeal is limited to the deductible proportion under section 323.
In summary, the appellant submitted that the MA has made a demonstrable error “when he made a deduction of 4/5 pursuant to section 323. A correct application of the legal principles would have resulted in no deduction or in the alternative a deduction of 1/10”.
In summary, the respondent worker submitted that the MA did not make a demonstrable error and accordingly the MAC should be confirmed.
The MA first noted the history of medical assessments conducted as follows:
“Please note that today’s MAC needs to be read in conjunction with two previous MACs of 27 January 2004 and 10 January 2006, as well as a Supplementary Medical Assessment Certificate of Permanent Impairment relating to my previous MAC of
27 January 2004.As noted in my reports I had placed Ms Latif in DRE Category I of her cervical spine with 0% WPI as well as 0% WPI in relation to the right upper extremity, and in the supplementary report, 6% WPI in relation to the left upper extremity being suggested as being a maximal impairment, and that the actual impairment may have been less than this.
By way of summary, Ms Latif was complaining of problems with her lumbar spine and lower extremities as a result of an injury on 30 March 2002 and also problems with her spine and upper extremities as a result of an injury on 19 August 2002, the date of the referral today.
On this occasion as noted she had been working in the laundry and had slipped and fallen, injuring her left shoulder region with ongoing problems in her shoulder and left side of her neck. Symptoms were described as being constant and not improving, and I noted that she had gone off work following the injury and at the time of the last consultation was working four hours a day, three days a week on restricted duties.
On examination there was significant restriction of left shoulder movement associated with weakness with hypoaesthesia to pinprick in the median nerve distribution of her left hand.
As noted in the figures suggested above, I had placed Ms Latif in DRE Category I of her cervical spine.
I note from various reports forwarded to me that in 2006 Ms Latif was compensated for 0% for the cervical spine and 7% for the left shoulder, and in 2020 this was increased to 7% for the lumbar spine, 5% for the cervical spine and 10% for the left shoulder.
In 2020 the impairment was increased for cervical spine to equal 18%, left shoulder to equal 10%, and right shoulder (consequential condition) equal to 10%.
I note that Ms Latif came to surgery on her left shoulder on 16 November 2004 (Professor G Murrell) with the suggestion being that the surgery was for ‘impingement’.”
The MA on the day of assessment took a history of injury and its sequelae as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Latif’s history was confirmed of having sustained an injury to her cervical spine and left shoulder region at the time of her fall on 19 August 2002 with ongoing problems ever since then.
In addition to the discomfort in her neck and left shoulder region, she informs me that she has also developed discomfort in her right shoulder and she cannot clearly recall when these symptoms came on, but she feels between four and six years ago.
At the present time her right shoulder is worrying her as much as the left side.
As far as treatment is concerned, she has had an injection in her left shoulder region which did not really help, and she also takes tablets and has gel to rub in and is having physiotherapy once a week.
· Present treatment:
As noted above Ms Latif continues to take tablets including Tramadol, Voltaren, sleeping tablets and Zoloft, and also has a gel to rub in. She attends physiotherapy once a week.
· Present symptoms:
Ms Latif is complaining of ongoing discomfort in her cervical spine indicating the whole of the neck area as being the site of the pain, with symptoms ranging between 5-9/10. The discomfort extends all the way down her back to her lower lumbar region. Symptoms are aggravated particularly at night time when she is sleeping, and when she does cooking with her head down for any length of time. She does get some relief by resting and taking tablets.
Ms Latif is complaining of ongoing problems with both shoulder regions which seem to be getting worse with time, and both shoulders seem to worry her constantly, with the discomfort extending down to the elbow regions. She does not have any pain below the elbows (see below), and symptoms can go as high as 8/10. Provided she is simply resting and taking her tablets, and after physiotherapy, she can possibly go for half a day at a time without any particular discomfort.
It should be noted that Ms Latif is not a very good historian, but when questioned very specifically about any paraesthesias in her hands, she apparently wakes every morning with numbness and paraesthesias in the fingers of both hands and she also wakes at night between midnight and 1.00am with these symptoms. She then has to open and close the fingers of her hands and rub them together to get these symptoms to settle down. As will be noted on examination, clinically she has evidence of bilateral carpal tunnel syndromes. These are not related to her injury in August 2002.
· Details of any previous or subsequent accidents, injuries or condition:
Ms Latif did not have any problems with her cervical spine or shoulder regions prior to her injury in August 2002.
· General health:
She feels this is otherwise good.
· Work history including previous work history if relevant:
I note that Ms Latif stopped working in August 2004 and has not worked since then.
· Social activities/ADL:
I note that she lives at home with her son and daughter-in-law who help with all the housework and does the cooking but with difficulty, and her children do the vacuuming and the mopping. She can do very small shops only, and she manages with her self-care but has considerable difficulty with anything above shoulder level such as trying to wash her hair.”
The MA recorded his findings on examination relevantly in respect of the shoulder as follows:
“Ms Latif does have significant restriction of shoulder movements bilaterally.
Shoulder Movements
Movement
Right
% Upper Extremity Impairment
Left
% Upper Extremity Impairment
Flexion
90°
6
90°
6
Extension
40°
1
30°
1
Abduction
70°
5
60°
6
Adduction
30°
1
40°
0
Internal rotation
40°
3
40°
3
External rotation
70°
0
70°
0
Total
16%
Total
16%
Ms Latif complains of moderate discomfort to palpation in the subacromial region, both anteriorly and laterally, with satisfactory power on both sides, and no obvious muscle wasting.
Reflexes are present and equal and generally depressed although her biceps reflexes are brisk.
Importantly good grip strength is present bilaterally and there is no evidence of muscle wasting.”
The MA had regard to the special investigations relevantly in respect of the shoulders as follows:
“Ms Latif did not have her films with her today…
I note that an x-ray of her left shoulder carried out on 29 June 2021 suggested narrowing of the subacromial space consistent with rotator cuff degeneration, and some degenerative changes in the glenohumeral joint with osteophyte formation.
I note from a report indicated by Dr G Burrow in his report of 4 February 2021 that there was an x-ray of the right shoulder which was reported as showing degenerative changes in the glenohumeral joint. As noted similar changes are present on the left side.”
The MA summarised the injuries and diagnosis as follows:
“summary of injuries and diagnoses:
Ms Latif would seem to have sustained an injury to her cervical spine and left shoulder region at the time of her fall on 19 August 2002. She has ongoing symptoms at both sites.
In addition, in the last four to six years she has developed similar symptoms in her right shoulder and as noted both shoulders now show significant restriction of movement and also radiological evidence of osteoarthritic change in both shoulder joints.
· consistency of presentation
Importantly it should be noted that Ms Latif presents in a very straight forward and open fashion and I would certainly accept that she is getting the ongoing symptoms that she complains of.”
The MA explained his assessment of impairment as follows (footnotes omitted):
“In my opinion Ms Latif falls into DRE Category II of her cervical spine (see 10b), with 5% WPI.
I would not add any additional impairment for ADLs, noting that she has a very satisfactory range of cervical movement with slight asymmetry and that her main restrictions are due to her bilateral shoulder problems.
As far as her shoulders are concerned, as noted she now has significant restriction of movement bilaterally, which has obviously deteriorated over the years, with 16% upper extremity impairment(2) on each side which equates with 10% WPI.
Please note that in my opinion the main pathology in relation to her shoulders is that she is developing osteoarthritic change on both sides, as evidenced by the clinical findings and the radiological changes. While accepting that the left shoulder was injured in August 2002, I have accepted that she does have 10% WPI on the left side.
However, with regard to the right shoulder region, as noted Ms Latif feels that her symptoms on the right side have only come on in the past four to six years and if one suggests six years as being correct, that would take us back to 2016, which is 14 years following her injury in August 2002. Her pathology is one of constitutional osteoarthritic change in the right shoulder.
I would accept that her symptoms on the right side may well have been aggravated by favouring her left shoulder, and as noted I have made a significant deduction (four-fifths) for her right shoulder problems as the main cause is the constitutional osteoarthritis. This then leaves her with 2% WPI as a result of her consequential injury.”
The MA explained where his opinion differed from that of the other experts whose opinions were in evidence before him as follows:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
I note a report of Dr G Burrow of 4 February 2021 who found DRE Category II for the cervical spine (5% WPI), 4% WPI for the left shoulder loss of range of movement, and 10% WPI for the right upper extremity (shoulder), with a one-half deduction, that is 5% WPI.
I note that Dr Burrow has suggested that although there was no specific injury to the right shoulder, and that she does have clinical and radiological evidence of glenohumeral arthritis, and that the problems with her right shoulder are not related to her work incident, he does feel that symptoms could have been aggravated and become symptomatic because of the left shoulder condition. As noted I have agreed with Dr Burrow’s suggestion, but have made a four-fifths deduction rather than the one-half suggested by Dr Burrow.
The reasons for this are:
- The main cause of her present right shoulder symptoms and restriction of movement, is her constitutional osteoarthritis of the shoulder, as evidenced by the delay in onset of symptoms.
- Symptoms in the right shoulder only started some six years ago, that is 14 years after the injury in 2002.
- Favouring her left shoulder could certainly have brought on symptoms slightly earlier than might have been the case.
I note the report of Dr M D Ryan (orthopaedic surgeon) of 24 June 2020 noted variability of effort of upper limb muscle testing which he felt was possibly related to ‘difficulties in communication’. He also noted that Ms Latif appeared to have a normal range of flexion, extension and rotation and suggested that there was an absent right triceps reflex.
With regard to diagnosis he noted that Ms Latif had somatic neck pain, with marked restriction of left shoulder movement which he felt was in part due to a probable fracture which had healed with mal-union. He once again commented on the difficulties in communication.
Dr Ryan suggested 17% upper extremity impairment for range of left and right shoulder movements which converted to 10% WPI on each side, and in reaching these figures he indicated that he was relying on the figures noted by Dr Manohar in 2009.
He placed Ms Latif in DRE Category III of her cervical spine because of the absent triceps reflex with 18% WPI, and included 9% WPI for the lumbar spine, which gave a final total of 39% WPI. As noted I have disagreed with Dr Ryan’s assessment.
There are a number of reports of Dr D Manohar (rehabilitation specialist), from December 2002 to July 2009, noting various symptoms but not suggesting any figures of impairment.
There are reports of Dr M Guirgis of December 2009 and January 2010 placing Ms Latif in DRE Category II of her cervical spine with 7% WPI and 10% WPI in relation to the left upper extremity (shoulder). As noted, there were no symptoms in her right shoulder at that time, some seven years after her injury.
There are reports of Professor G A C Murrell from July 2004 to June 2005 noting that Ms Latif developed an impingement syndrome complicated by a frozen shoulder for which an arthroscopic acromioplasty was carried out in late 2004, and when last seen in June 2005 he notes that Ms Latif was improving but still has ‘quite a lot of stiffness…’. No figures of impairment are suggested.”
The MA explained (footnotes omitted):
“As far as her shoulders are concerned, as noted she now has significant restriction of movement bilaterally, which has obviously deteriorated over the years, with 16% upper extremity impairment on each side which equates with 10% WPI.
Please note that in my opinion the main pathology in relation to her shoulders is that she is developing osteoarthritic change on both sides, as evidenced by the clinical findings and the radiological changes. While accepting that the left shoulder was injured in August 2002, I have accepted that she does have 10% WPI on the left side.
However, with regard to the right shoulder region, as noted Ms Latif feels that her symptoms on the right side have only come on in the past four to six years and if one suggests six years as being correct, that would take us back to 2016, which is 14 years following her injury in August 2002. Her pathology is one of constitutional osteoarthritic change in the right shoulder.
I would accept that her symptoms on the right side may well have been aggravated by favouring her left shoulder, and as noted I have made a significant deduction (four-fifths) for her right shoulder problems as the main cause is the constitutional osteoarthritis. This then leaves her with 2% WPI as a result of her consequential injury.”
A deduction can only be made if the pre-existing, condition, abnormality or injury has contributed to the level of permanent impairment assessed. The deduction must not be at odds with the available evidence. Here the MA has deducted 4/5 on the basis of a constitutional osteoarthritic condition with no available evidence to suggest that the osteoarthritic condition pre-existed the injury. This deduction cannot stand absent evidence that there was a pre-existing injury, condition or abnormality. There is however available evidence that supports a one-tenth deduction. This evidence is to be found in the radiological investigations as follows:
(a) the X-ray report of 25 August 2011 in respect of the right shoulder which reports as follows:
“There is old deformity of the humeral head and neck consistent with past fracture. Allowing for this and spurring at the inferior margin of the glenoid, there is no other bone or joint abnormality. There is no soft tissue calcification.”
(b) the X-ray report of 2019 in respect of the right shoulder which reports as follows:
“There is advanced degenerative change of the glenohumeral joint with re-modelling of both the humeral head and the glenoid. This may be secondary to previous trauma.”
The referred condition in respect of the right shoulder was one of a consequential condition not a traumatic injury.
The radiological findings consistent with a past fracture (2011 X-ray) and the degenerative change secondary to that past trauma (identified on the 2019 X-ray) have contributed to the assessment of the overall level of permanent impairment assessed because such assessment is based on restrictions in ROM consistent with a degenerative osteoarthritic right shoulder. The consequential condition in the right shoulder as a result of the subject 2002 injury is not responsible for all of the permanent impairment assessed and the pre-existing abnormality, injury or condition in the right shoulder demonstrated by the radiological investigations must be taken into account. It would be too difficult or costly to determine the extent of the deduction and therefore a one-tenth deduction applies which is not at odds with the available evidence.
Accordingly, the Appeal Panel will revoke the MAC and issue a new MAC certifying as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in 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 | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 19/08/2002 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 5% | nil | 5% |
| Left upper extremity (shoulder) | 19/08/2002 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 10% | nil | 10% |
| Right upper extremity (shoulder – consequential injury) | 19/08/2002 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 10% | 1/10 | 9% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
For these reasons, the Appeal Panel has determined that the MAC issued on 28 March 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: | W10/22 |
Applicant: | Nooria Latif |
Respondent: | Curie AZ Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Roger Pillemer and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in 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 | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 19/08/2002 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 5% | nil | 5% |
| Left upper extremity (shoulder) | 19/08/2002 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 10% | nil | 10% |
| Right upper extremity (shoulder – consequential injury) | 19/08/2002 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 10% | 1/10 | 9% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
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