Leite v Allied Formwork (NSW) Pty Ltd
[2023] NSWPICMP 498
•5 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Leite v Allied Formwork (NSW) Pty Ltd [2023] NSWPICMP 498 |
| APPELLANT: | Jose Leite |
| RESPONDENT: | Allied Formwork (NSW) Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Brian John Stephenson |
| MEDICAL ASSESSOR: | Alan Home |
DATE OF DECISION: | 5 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant worker alleged error by the Medical Assessor in the failing to carry out a proper examination and failing to provide sufficient reasons for his assessment of sensory loss in the ulnar nerve and in particular made no mention of the two-point discrimination test; the Appeal Panel was satisfied as to error and the Appeal panel considered that a re-examination was necessary; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 May 2023 the Mr Jose Leite (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr James Bodel, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 April 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 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).
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 sought he be re-examined by a Medical Assessor member of the Appeal Panel. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination.
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 has taken them into account in making this determination.
Further medical examination
Dr Alan Home of the Appeal Panel conducted an examination of the worker on 25 September 2023 and reported to the Appeal Panel.
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.
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 Medical Assessor by the Personal Injury Commission (Commission) as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 24 June 2019
· Body parts/systems referred: Left Upper Extremity
Scarring (TEMSKI)
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC 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)
1.
Right Upper Extremity
24 June 2019
Chapter 2
Chapter 16
Figure 16-40, Pg 476
Figure 16-43, Pg 477
Figure 16-46, Pg 479
8%
Nil
8%
2.
Left Upper Extremity
24 June 2019
Chapter 2
Chapter 16
Figure 16-40, Pg 476
Figure 16-43, Pg 477
Figure 16-46, Pg 479
Figure 16-34, Pg 472
Figure 16-37, Pg 474
Table 16-10, Pg 482
Table 16-15, Pg 492
14%
Nil
14%
3. Scarring
24 June 2019
Chapter 14
-
1%
Nil
1%
Total % WPI (the Combined Table values of all sub-totals)
22%
The worker appealed. The complaint on appeal was only in respect of the left upper extremity.
In summary, the appellant submitted on appeal that the Medical Assessor erred as follows:
(a) Failed to examine the left hand.
(b) Provided insufficient reasons for his assessment of sensory loss in the ulnar nerve and in particular made no mention of the two point discrimination test.
In summary, the employer Allied Formwork (NSW) Pty Ltd (the respondent) submitted on appeal that the Medical Assessor did not make a demonstrable error and the MAC should be confirmed.
The Medical Assessor took a history broadly consistent with the other evidence before him.
The Medical Assessor reviewed the special investigations.
The Medical Assessor conducted a physical examination which he recorded and about which there is complaint on appeal:
“Mr Leite is now 65 years of age. He is most uncomfortable throughout the interview and he again has great difficulty undressing for examination.
I note the healed scarring in the region of the left shoulder for which he has had surgery. This is mildly complicated surgical scarring from the surgery in the left upper extremity attracting a 1% Whole Person Impairment under the TEMSKI scale.
He has a good range of neck flexion, extension and rotation in all directions and there is no asymmetry of neck movement.
There is scarring on the left shoulder, consistent with the arthroscopic surgery. There is no scarring on the right side. There is mild generalised wasting in the left shoulder girdle when compared to the right. There is tenderness over the rotator cuff in both shoulders, the left much worse than the right. There is a grossly restricted range of movement in both shoulders, but the left again is much worse than the right. There is evidence clinically of adhesive capsulitis in the left shoulder but not so much on the right.
The range of movement in each shoulder is recorded in the Table as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120°
80°
Extension
40°
30°
Adduction
20°
10°
Abduction
90°
60°
Internal Rotation
50°
40°
External Rotation
50°
40°
There is impingement in each shoulder but no instability.
There is a restricted range of elbow movement on the left-hand side and the range of movement in each elbow is recorded in the Table as follows:
Elbow
Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
140°
120°
Extension
0°
-10°
Pronation
80°
70°
Supination
80°
70°
There is no restriction of elbow, wrist or hand movement. He has global weakness in the whole of the left upper limb. There is a few millimetres of wasting of the left arm above the elbow and the left forearm below the elbow, which is consistent with his right-sided dominance.
When making a fist, he initially overlaps the little finger in front of the ring finger, but then on second testing it was not overlapped. I observed no signs of wasting in the small muscles of the hand and he has resisted movement of finger abduction and therefore no motor weakness in the ulnar nerve distribution.
He does, however, have Grade 4 sensory loss in the ulnar nerve distribution in the left upper limb and some tenderness behind the medial epicondyle of the left elbow, over the ulnar nerve, at the site of the surgical transposition. Again, there is scarring in that region but none on the right side.
Reflexes are present and equal. There is no sensory loss in a dermatomal distribution in either upper limb. There is no evidence of median or ulnar nerve pathology in the right upper limb and there is no evidence of median nerve pathology in the left upper limb. There is just the sensory loss only in the ulnar nerve distribution on the left side.”
The Medical Assessor summarised his diagnosis and findings as follows:
“summary of injuries and diagnoses:
The claimant has suffered a rotator cuff injury to the region of the left shoulder and to the right shoulder, and ulnar neuritis in the region of the left elbow.
· consistency of presentation
The claimant has widespread ongoing complaints. He is somewhat anxious in his manner. His physical complaints, however, are consistent with ongoing pathology in both the left shoulder and arm, and the right shoulder. There is no medical inconsistency in his clinical presentation.”
The Medical Assessor explained his impairment assessment as follows:
“I have assessed Mr Leite in accordance with the WorkCover Guidelines for the assessment of these injuries.
Today’s referral relates to an assessment of the left upper extremity and the scarring.
The scarring attracts a 1% Whole Person Impairment under the TEMSKI scale as mildly complicated surgical scarring.
The range of movement in the left upper extremity, involving the left shoulder and the left elbow and the Grade IV sensory loss in the ulnar nerve distribution constitutes a 24% Upper Extremity Impairment for the left upper extremity and that converts to a 14% Whole Person Impairment for the Left Upper Extremity using Table 16-3 on Page 439.
I note in the referral for the assessment of permanent impairment for today’s assessment, that I am to not only assess the Left Upper Extremity and scarring, but also to combine this with my ‘9% Right Upper Extremity’ and scarring assessment from the previous assessment. To do that, the scarring is only assessed once and remains at 1% in totality rather than 1% associated with the Right Upper Extremity and 1% for the Left Upper Extremity.
The three individual ratings are combined using the Combined Values Chart on Page 604 of AMA5:
i.14% WPI for the Left Upper Extremity
ii.8% WPI for the Right Upper Extremity
iii.1% WPI for the scarring
There is a total of 22% Whole Person Impairment in this case.
There is no indication clinically of any pre-existing abnormality or condition and no basis for a deduction for pre-existing condition.
a. An explanation of my calculations (if applicable)
The assessment of the Left Upper Extremity involves the assessment of the left shoulder using Figure 16-40 on Page 476, Figure 16-43 on Page 477 and Figure 16-46 on Page 479.
It also uses the restricted range of elbow movement using Figure 16-34 on Page 472 and Figure 37 on Page 474.
There is also a Grade IV sensory loss for the ulnar nerve in this circumstance taken from Table 16-10 on Page 482 to allow for one-quarter of the total sensory loss to apply and the total is taken from Table 16-15 on Page 492, being 7% Upper Extremity Impairment. One-quarter of that is 1.75% Upper Extremity Impairment and after rounding is 2% Upper Extremity Impairment, leaving three individual ratings for the Left Upper Extremity (19, 4, 2) giving a total 24% Upper Extremity Impairment which converts to a 14% Whole Person Impairment for the Left Upper Extremity using Table 16-3 on Page 439.
Again, I note that I am instructed in the referral for the assessment of permanent impairment for the Left Upper Extremity and scarring to also include and combine this with my previous (9% Right Upper Extremity and scarring) when assessing the Left Upper Extremity as well.
As I have indicated above, the scarring is only counted once and there are therefore three individual ratings to combine:
iv.14% WPI for the Left Upper Extremity
v.8% WPI for the Right Upper Extremity
vi.1% WPI for the scarring
These are combined using the Combined Values Chart on Page 604 of AMA5 giving a total of 22% Whole Person Impairment in this circumstance.”
The Medical Assessor made brief comment on the other evidence and medical opinion which was before him as follows: (emphasis in original)
“Today, I have been provided with the same material that I was provided with for my Medical Assessment Certificate from 17 January 2023. I have no further comment. I do however, again confirm that the Application to Resolve a Dispute does ask for assessments of both the left and right upper extremity and the TEMSKI scale and I have now collectively been asked to provide that assessment. That is to say, that I am combining the assessment from the MAC on 17 January 2023 with today’s findings of the Left Upper Extremity and scarring.
I have carefully perused all of the documentation provided.
I note the Application to Resolve a Dispute and in that, I have already referred to the fact that the permanent impairment rating requested in the Application to Resolve a Dispute implies the areas injured are the left upper extremity and the right upper extremity, and the TEMSKI scale in regards to scarring.
The level of Whole Person Impairment that is claimed is 49% Whole Person Impairment overall, which includes both upper extremities and the scarring.
The Referral for Assessment of Permanent Impairment to Medical Assessor, only lists the right upper extremity and the scarring but does not include the left upper extremity, as I have indicated above.
I note a Statement from Mr Leite, dated 2 November 2022 and signed by him. This confirms that he suffered an injury on 24 June 2019 when working as a carpenter for Allied Formwork (NSW) Pty Ltd. He confirms that he suffered injuries after ‘repeatedly lifting pallets and sustained injury to my left shoulder, my left elbow and left hand.’
He came under the care of his GP. He had MRI scans done. He was referred to Professor Murrell and had an arthroscopy and rotator cuff repair on 30 June 2020, a year after the injury. He later saw Dr Yeoh and had left elbow surgery on 10 November 2021, after confirming of the ulnar nerve lesion in a nerve conduction study on 9 October 2020.
The Statement at Item 14 indicates that, ‘I subsequently developed problems in my right shoulder about a year after problems in my left shoulder due to overuse.’ He clarified that statement to me in the following way; I pointed out to him that one year after the onset of symptoms in the left shoulder was about the time of the surgery on the left shoulder, and he confirmed that in actual fact the onset of symptoms on the right side was the year after he had his surgery, which is two years after the injury.
He later saw Dr Popoff, who examined both shoulders and recommended further treatment. He had an MRI scan of the right shoulder in November 2021. No interventional treatment has been undertaken for the right shoulder at this stage.
A letter from Garling and Co Lawyers dated 26 May 2022 refers to a claim being made on iCare Workers Compensation for work injury damages on the basis that he has a level of assessable impairment that is 15% or greater WPI.
I note the permanent impairment claim, which refers to the fact that there is a 49% Whole Person Impairment for both the left and right upper extremities, as I have indicated above.
I note a letter of offer from Hall & Wilcox dated 14 October 2022 to Garling & Co Lawyers, with an offer of settlement at 26% WPI for injuries to the ‘left upper extremity (left shoulder, left elbow and left hand) and the right upper extremity (right shoulder)’ on the basis of the report done by Dr Herald, who they had commissioned to assess him clinically in an IME assessment.
That letter from Dr Herald is noted. He has recorded ongoing pathology, which is consistent with my observations here today. He did however, dispute the ulnar nerve lesion and I also note that there is no wasting in the small muscles of the hand and no motor weakness in the ulnar nerve distribution, although I do accept that he probably does have a sensory loss.
He has appropriately assessed the levels of Whole Person Impairment in his IME assessment, in accordance with the clinical findings that he has recorded.
The x-ray and ultrasound of the left shoulder confirms, ‘Two small partial-thickness tears of the supraspinatus with bursal thickening and bunching on abduction.’
The MRI scan of the left shoulder is said to show, ‘Supraspinatus tendinosis together with two small intrasubstance insertional tears.’
X-rays and ultrasounds from Professor Murrell confirm the clinical findings and he has recommended surgery in the form of arthroscopy and rotator cuff repair of the left shoulder because he had ongoing pathology in the left shoulder which had been ‘unresponsive to non-operative treatment.’
Physiotherapy reports and the operative report from Professor Murrell is noted.
The claimant also has a number of other reports which are not related to the musculoskeletal injuries.
There is a letter from Dr Griffin, a physician who was assessing him for colonoscopy. This is a matter unrelated to this claim.
Further assessments by Professor Murrell are noted and these are consistent with the treatment protocol that has been undertaken for the left shoulder.
The physiotherapy reports are consistent with the treatment protocol.
Dr Popoff has seen him in March 2021. He identified adhesive capsulitis in the region of the left shoulder and was arranging a CT scan and arthrogram. He also has had the loss of abduction to the little finger of the left hand, which he said is ‘somewhat unusual, as his sensation is still intact.’ The sensation now appears altered but not fully involving the ulnar nerve distribution, but there is no sign of wasting in the hand to identify a motor lesion in the ulnar nerve distribution.
The letter from Dr Kwan Yeoh is also noted and he did the ulnar nerve transposition. The pre-operative nerve conduction study did confirm the mild ulnar neuropathy. This did not go well. His pain in the hand worsened after that surgery.
Physiotherapy reports are consistent with the ongoing medical management of his injuries.
I note another copy of the report from Dr Herald in regard to his assessment. I have no further comment about that.
I note the report of the MRI scan of the right shoulder which does show a SLAP type 2 glenohumeral labral tear, but no rotator cuff tear and no significant AC joint OA.
An MRI scan of the left 5th digit is also noted. No significant abnormality was identified except for some mild disc radio-ulnar joint arthritic change and TFCC.
Dr Yeoh recommended intense hand therapy. This has been undertaken but with minimal improvement.”
The Appeal Panel considered that a re-examination was necessary because the Medical Assessor did not adequately explain his reasoning process in respect of the assessment of sensory loss of the ulnar nerve and made no reference to the two point discrimination test. This does not allow an understanding of the Medical Assessor’s reasoning process by which a Grade 4 assessment was selected.
In these circumstances the Appeal Panel considered that a re-examination was necessary. Medical Assessor Alan Home was appointed to conduct the examination and he reported to the Panel as follows:
“The history was obtained with the assistance of a Portuguese language interpreter, Mr Alvaro Perez DaCosta, NAATI number 1847.
HISTORY
Mr Leite states that he sustained injuries during the course of his work as a carpenter on 24 June 2019. He was lifting an empty pallet when he experienced prominent pain at his left shoulder. He did not seek medical treatment for many months. He carried on at work. He recalls that during the subsequent period of work, he also developed pain in his right shoulder.
He eventually attended his general practitioner in 2020. He was subsequently referred to Dr Murrell, who arranged ultrasound examination of the left shoulder. This demonstrated a rotator cuff tear.
Subsequently, he underwent rotator cuff repair performed on 30 June 2020 under the care of Dr Murrell. It is noted there was a finding of grade 3 chondropathy at the anterosuperior humeral head. The supraspinatus tear was repaired.
There was marked stiffness following the shoulder surgery and it was determined that he had suffered adhesive capsulitis. There was also a complaint of olecranon bursitis and local pain about the elbow.
Mr Leite recalls that he undertook physiotherapy treatment.
Nerve conduction studies demonstrated development of cubital tunnel at the left elbow during the post operative period. There was further physiotherapy treatment. Substantive left shoulder stiffness was documented by his treating physiotherapist in Kogarah.
There was subsequent development of progressive pain at the right shoulder for which he was referred to Dr Popoff who he attended in March 2021. Dr Popoff also diagnosed left shoulder adhesive capsulitis.
Due to scissoring of the left little finger over the adjacent ring finger, he was referred on to Dr Yeoh, hand and upper limb surgeon, whom he attended on 23 April 2021. He was referred to Southern Hand Therapy for management of his left hand functional little finger adduction.
There was subsequent MRI scanning of the left hand which failed to demonstrate a local structural cause of the left little finger adduction problem. Dr Yeoh recommended decompression of the ulna nerve at the elbow. Left cubital release surgery was performed on 10 November 2021 at Waratah Private Hospital.
In relation to the right shoulder, MRI scan imaging under the direction of Dr Popoff demonstrated a SLAP tear. He confirms a subsequent corticosteroid injection with mild benefit. However, his right shoulder has since become progressively stiffer. He declined a second injection in May 2022.
He was discharged from the care of Dr Yeoh in mid-2022. He was discharged from hand therapy due to lack of progress in October 2022.
He describes current use of Endone 5mg twice daily, paracetamol up to six tablets daily and Amitriptyline 10mg nightly.
CURRENT SYMPTOMS
At the right shoulder, he describes pain and restricted motion. He cannot lay comfortably over his right shoulder at night. He limits lifting to very small objects, 1kg or 2kg. He describes the intensity of pain at 0/10 at rest increasing to 8/10 with modest activity.
At the left shoulder, he describes identical symptoms of pain and restricted motion. The motion is more restricted on the left side.
He describes intermittent mild discomfort at the medial aspect at the left elbow. There is local tenderness at the previous cubital tunnel release site.
He continues to suffer from a tendency of the left little finger to cross under his ring finger. He reports reduced sensibility in the ulna two digits of the left hand. He retains protective sensation with sensibility for hot and cold. There is difficulty with dexterity, primarily related to the scissoring of the little finger.
FUNCTIONAL CAPACITY AND REPORTED TOLERANCES
He is right hand dominant.
He describes a normal tolerance for sitting, driving an automatic vehicle, standing and walking. He steers his motor vehicle with his right hand.
He has difficulty with dressing. His wife assists him with tops.
He is able to lift a light weight with his right hand.
SOCIAL HISTORY
He is married with one 39 year old non-dependent child. He lives with his wife. His wife undertakes all domestic chores.
He was not undertaking any active hobbies before the accident.
He has not resumed his work as a carpenter.
PHYSICAL EXAMINATION
On examination, Mr Leite is s 65 year old male standing at 180cm and weighing 63kg.
Right shoulder
Examination of the right shoulder reveals mild muscle wasting. Reduced active motion measured as follows. Flexion 80°, extension 40°, abduction 70°, adduction 20°, external rotation 60° and internal rotation 20°. There are signs of adhesive capsulitis with early scapular movement during shoulder elevation and loss of rotation with the elbow by the side. There is grade 4/5 power across the rotator cuff.
Left shoulder
At the left shoulder, active motion is measured as follows. Flexion 50°, extension 10°, abduction 40°, adduction 0°, external rotation 60° and internal rotation 20°. There is restricted motion with the shoulder by the side. There is early scapular movement during shoulder elevation. There are signs of adhesive capsulitis.
There are two anterior and one posterior surgical scars at the shoulder. The vertical scars at the anterior aspect of the shoulder measure 1cm x 2mm and 2cm x 1mm respectively. There is contour depression of the medial scar, there is minor atrophic change, there is no tethering, there are no visible suture marks. The posterior arthroscopy scar cannot be visibly seen.
There is a further 1.5cm x 1mm well healed scar and a further 1cm x 1mm surgical scar. Both scars are situated posteromedial to the elbow at the sight of the cubital tunnel release. There are no adverse features, that is no trophic change, contour defect, tethering or colour disparity of the distal scars.
The appearance of the scars is seen in the photograph below:
[IMAGE UNABLE TO RENDER]
Right elbow
At the right elbow, there is a full range of active motion measured as 0° extension to 140° flexion, 90° forearm pronation and 90° supination.
Left elbow
At the left elbow, active motion is measured as -10° extension to 120° flexion, forearm pronation 90° and supination 80°.
Left wrist
There is a full active motion at the wrist in all planes. At the left wrist, flexion 60°, extension 70°, ulna deviation 30° and radial deviation 20°. This is symmetrical to the non-injured right side.
Left hand
In the left hand, there is scissoring of the left little finger at rest. When brought back to a neutral position, there is normal power of resisted abduction and adduction of the ring and little fingers, that is, there is also normal power of adduction on the remaining digits. That is, there is no evidence of ulna nerve weakness. There is normal power of the long flexors of the digits. There is no intrinsic muscle wasting in the hand.
Testing sensibility, there is impaired two point discrimination of the tips of the ring and little fingers measured at 8mm compared with 6mm in the right hand. There is reduced sensibility for light touch. He has retained protective sensibility and retains sensibility for pain and cold modalities at assessment.
There is full active motion in the metacarpophalangeal, PIP and DIP joints of all digits. There is normal active motion of all of the thumb joints measured.
DIAGNOSIS AND CAUSATION
The worker was involved in a workplace accident in which he suffered a left shoulder rotator cuff tear. There was a consequential injury to the right shoulder.
Assessment of the right shoulder is not required for the purposes of this panel re-assessment of Dr Bodel’s certificate.
The claimant has also developed cubital tunnel syndrome post operatively following his left shoulder surgery. This has been managed with cubital tunnel release. There is a residual ulna sensory neuropathy.
The worker was consistent in his presentation.
All of the injuries have stabilised.
There has been no subsequent further injury.
PERMANENT IMPAIRMENT
Impairment is determined using the methodology set out in the Workcover NSW Guides for the Evaluation of Permanent Impairment 4th Edition and the American Medical Association Guides for the Evaluation of Permanent Impairment 5th edition as follows:
Left shoulder
There is restricted motion at the shoulder using the methodology set out in Figures 16-40, 16-43 and 16-46, AMA 5, pages 476, 477 and 479. Impairment is determined as set out in the table below.
Shoulder Movements
Active ROM Measured
LEFT °
Upper Extremity Impairment
AMA Guides (5th Ed)
Flexion
50
9% (Fig 16-40, pg 476)
Extension
10
2% (Fig 16-40, pg 476)
Adduction
0
2% (Fig 16-43, pg 477)
Abduction
40
6% (Fig 16-43, pg 477)
Internal Rotation
20
4% (Fig 16-46, pg 479)
External Rotation
60
0% (Fig 16-46, pg 479)
Total UE Impairment
23% UEI
Left Elbow
At the left elbow, there is restricted motion assessed using Figures 16-34 and 16-37, AMA 5, pages 472 and 474 as follows.
ELBOW
Active ROM Measured
LEFT °
Upper Extremity Impairment
AMA Guides (5th Ed)
Flexion
120
2% (Fig 16-34, pg 472)
Extension
10
1% (Fig 16-34, pg 472)
Total UEI
3%
For the ulna nerve, there is normal ulna motor power, assessed using Table 16-11, AMA 5, page 484 as grade 5 power with 0% motor deficit.
The sensory impairment is graded using Table 16-10, AMA5 Page 482. There is distorted superficial tactile sensibility (diminished light touch and two point discrimination with some abnormal sensations) that interfere with some activities. I have graded this as a 50% sensory deficit, mid-range grade 3. This figure is multiplied out by the maximum impairment of the ulna nerve above mid forearm.
Using Table 16-15 AMA5 Page 492, there is a maximum 7% upper extremity impairment.
Calculating this out, 50% x 7% equals 3.5%, rounded up to 4% UEI.
The upper impairment rating for the shoulder of 23%,
The upper impairment rating for the elbow is 3%,
This is combined to provide a 25% upper extremity impairment rating (combined values chart, AMA 5, page 604) for the ROM impairment.
This is combined with the impairment for the neurological deficit of 4% UEI.
25% combined with 4% equals 28% UEI.
Using Table 16-3, AMA 5, page 439, a 28% upper extremity impairment rating converts to a whole person impairment rating of 17%.
SCARRING
Scarring is assessed using the TEMSKI scale in the Workcover Guidelines, table 14.1, page 74 as follows:
·The claimant is conscious of his scar or skin condition
·There is some contrast of the scar with the surrounding skin due to the contour defect
·The claimant is able to locate the scars
·There is minimal trophic changes
·There are no suture marks visible
·The location of the scars are not usually seen with usual clothing or hairstyle
·There is minor contour defect
·There is no effect on any activities of daily living arising from the scar itself
·There is no treatment required for the scar
·There is no adherence
Using the principal of best fit, a 1% permanent impairment rating arises.
The panel notes that Dr Bodel was directed to combine the whole person impairment rating for the left shoulder and scarring with that assessed for the right shoulder at 8% WPI.
Combining these figures out, 17% combined with 8% combined with 1%, equals 25% WPI.”
The Appeal Panel adopts the findings and the report of Dr Home.
This results in 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)
1.
Right Upper Extremity
24 June 2019
Chapter 2
Chapter 16
Figure 16-40, Pg 476
Figure 16-43, Pg 477
Figure 16-46, Pg 479
8%
Nil
8%
2.
Left Upper Extremity
24 June 2019
Chapter 2
Chapter 16
Figure 16-40, Pg 476
Figure 16-43, Pg 477
Figure 16-46, Pg 479
Figure 16-34, Pg 472
Figure 16-37, Pg 474
Table 16-10, Pg 482
Table 16-15, Pg 492
17%
Nil
17%
3. Scarring
24 June 2019
Chapter 14
-
1%
Nil
1%
Total % WPI (the Combined Table values of all sub-totals)
25%
For these reasons, the Appeal Panel has determined that the MAC issued on
18 April 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7445/22 |
Applicant: | Jose Leite |
Respondent: | Allied Formwork (NSW) 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 Medical Assessor Dr James Bodel and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Right Upper Extremity | 24/06/ 2019 | Chapter 2 | Chapter 16 Figure 16-40, P 476 Figure 16-43, P 477 Figure 16-46, P 479 | 8% | Nil | 8% |
| 2. Left Upper Extremity | 24/06/2019 | Chapter 2 | Chapter 16 Figure 16-40, P 476 Figure 16-43, P 477 Figure 16-46, P 479 Figure 16-34, P 472 Figure 16-37, P 474 Table 16-10, P 482 Table 16-15, P 492 | 17% | Nil | 17% |
| 3. Scarring | 24/06/2019 | Chapter 14 | - | 1% | Nil | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 25% | |||||
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