Lennon v Wollongong Golf Club
[2022] NSWPICMP 217
•16 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lennon v Wollongong Golf Club [2022] NSWPICMP 217 |
| APPELLANT: | Grace Lennon |
| RESPONDENT: | Wollongong Golf Club |
| APPEAL PANEL: | Member Richard J Perrignon Dr Mark Burns Dr James Bodel |
| DATE OF DECISION: | 16 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of 9% whole person impairment (6% cervical spine; 3% right upper extremity; shoulder); whether evidence of conduct of examination admissible; whether assessor failed to have regard to statement evidence; whether assessor gave adequate reasons for a finding of no radiculopathy in the right upper extremity; whether he erred by failing to use a goniometer or inclinometer in measuring range of motion; whether he erred by failing to supply documentary evidence of his measurements; Held- appeal dismissed and Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Lennon, appeals from the Medical Assessment Certificate of Medical Assessor Dr Yiu-Key Ho dated 15 November 2021 (MAC).
On 4 January 2007, Ms Lennon fell onto her right side at work, injuring her right shoulder and cervical spine. She claimed compensation for impairment of the whole person, and was referred to the Medical Assessor for assessment of those two body systems.
On 8 November 2015, Dr Yiu-Key Ho examined her in person, and assessed a 9% whole person impairment (6% cervical spine, 3% right upper extremity - shoulder). In assessing the cervical spine, he allowed 2% whole person impairment for the effect on activities of daily living.
Ms Lennon appeals against his assessment of the cervical spine and right shoulder, on the basis of incorrect criteria and demonstrable error. To support her appeal, she relies on her statutory declaration of 10 December 2021, in which she gives evidence of the manner in which the assessment was conducted, among other things. She seeks re-examination by the Appeal Panel.
The respondent employer objects to the Panel taking the statutory declaration into account, on the basis that is not admissible. Even if it were admissible, the respondent says that it is incapable of demonstrating error on the face of the MAC, because it constitutes evidence extraneous to the certificate an referral for assessment.
On 2 February 2022, without determining the appeal, the President’s delegate found there was an arguable case for demonstrable error in respect of the assessment of the cervical spine, and referred the matter to this Panel for determination.
The Appeal Panel conducted a preliminary review of the medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
Submissions
In brief summary, the appellant submits as follows with respect to the assessment of the cervical spine:
(a) the Assessor failed to consider the applicant’s statement of 11 June 2021, particularly paragraphs 40(e) and (f), in which she complained of tingling in the right arm, pins and needles and loss of sensation in the right hand, and paragraph 41 in which she detailed the impact on her activities at home, including her inability to wash her hair with her right arm, to open a jar with her right hand, and any activity that required repetitive use of the right arm;
(b) he failed to consider the limitations of right arm function of which she complained to him at examination, as detailed in her statutory declaration;
(c) he failed to provide reasons for his finding that there was no weakness or sensory loss in the right upper limb, which finding was wrong, and
(d) he failed to ask the worker whether she had weakness or sensory loss in the right upper limb.
In brief summary, the appellant submits as follows with respect to the assessment of the right shoulder:
(a) the Assessor failed to assess the right shoulder in accordance with the Guidelines, because, though he adopted the range of motion method, he relied on his own visual assessment and failed to use a goniometer, as reported by the worker in her statutory declaration;
(b) he failed to produce documents recording the range of motion, and to indicate whether movements were active or passive, and
(c) he failed to give reasons for omitting to use a goniometer.
The respondent submits, in brief summary, as follows:
(a) the appellant’s statutory declaration is inadmissible under s 328(3) of the 1998 Act, because it lacks ‘substantial prima facie probative value in terms of its particularity, plausibility and/or independent support’: Lukasevic v Coates Hire Operations Pty Limited [2011] NSWCA 112; Brown v Westpac Banking Corporation [2017] NSWWCCMA 71;
(b) the material in the statutory declaration cannot amount to a ground of appeal under s 327(3)(b) because matters going to the process whereby the Assessor makes the assessment do not constitute ‘additional relevant information’ for the purposes of that section: Petrovic v BC Serv No 14 Pty Limited and Ors [2007] NSWSC 1156; Donaldson v State of New South Wales [2019] NSWWCCMA 151;
(c) evidence that goes beyond the face of the MAC cannot be relied on to prove that the MAC contains a demonstrable error: Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; Redman v Roads and Maritime Services [2018] NSWWCCMA 117;
(d) there is no evidence to support the allegation that the Assessor failed to have regard to the worker’s statement or any other evidence in brief before him. The presumption of regularity operates in favour of the opposite conclusion;
(e) the Assessor is not obliged to make specific reference to every document before him;
(f) he is entitled to rely on clinical findings at examination: Ferguson v State of New South Wales [2017] NSWSC 887; Rujak v Glad Cleaning Services Pty Ltd & Ajax Cleaning Services Pty Ltd t/as ADZ Cleaning Services Pty Ltd [2020] NSWWCCMA 123;
(g) there is no admissible evidence that the Assessor failed to use a goniometer. The presumption of regularity operates in favour of the conclusion that the examination was properly conducted: Bojko v ICM Property Services Pty Ltd [2009] NSWCA 175;
(h) even if the Assessor did fail to use a goniometer, the use of a goniometer is discretionary: Gramosli v British American Tobacco Australia Ltd [2017] NSWWCCMA 16, and
(i) the Assessor provided adequate reasons for the assessment he made.
Statutory declaration
The worker’s statutory declaration is relied on to prove demonstrable error. ‘Demonstrable error’ is ‘an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment’: Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 per Hoeben J at [39].
In this case, both the MAC and the document referring the worker for assessment are silent as to whether a goniometer or other instrument was used. As the statutory declaration is extraneous to the certificate and referral document, it cannot be used to prove demonstrable error. It follows that it is irrelevant to that issue, and should not be admitted into evidence in respect of it.
The grounds of appeal relied on in the Application to Appeal are confined to demonstrable error and incorrect criteria. They do not include availability of additional relevant information under section 327(3)(b) and it is unnecessary to consider any such ground.
The applicant’s submissions do not suggest that the declaration is relevant to any allegation that incorrect criteria have been applied, and we do not consider that it is.
Even if, contrary to our finding, the contents of the statutory declaration were relevant to a ground of appeal, it is inadmissible under section 328(3) in any event, because it lacks ‘substantial prima facie probative value in terms of its particularity, plausibility and/or independent support’: Lukasevic. It is implausible because it is a commentary on the manner in which the Assessor conducted his assessment, and it is ‘inherently improbable that an experienced clinician duly appointed to perform the functions of an AMS would not know how to conduct an appropriate clinical examination and would not do so’: Brown.
It is highly implausible that the Assessor would have been in a position to supply the detailed ROM measurements he did at paragraph 5 of the MAC if, as the appellant alleges, a goniometer or inclinometer was not used. The contrary is likely.
There is no independent support for the allegations made. Though the allegations as to how the assessment was conducted might be described as ‘particular’ in part, they lack probative value for the reasons already expressed.
Paragraphs 11 and 12 of the declaration relate to medical history prior to the assessment. They do not satisfy the requirement of section 328(3) that the evidence was not available to the appellant, and could not reasonably have been obtained by her, prior to assessment.
For all those reasons, the statutory declaration is inadmissible.
Assessment of the cervical spine
In her submissions under the heading, ‘Cervical Spine’, the appellant alleges that the Assessor failed to have regard to paragraphs 40(e) and (f) and 41 of her statement, which deal with symptoms in the right arm and hand which might possibly be of radicular origin, and consequent limitations of function in the right upper limb.
The task of the Assessor was to conduct a clinical examination on the day, and to determine among other things whether there was radiculopathy emanating from the cervical spine.
The Assessor recorded his findings on clinical examination of the cervical spine at paragraph 5. He noted:
“… tenderness and some muscle spasm on the right side on the neck, more in the upper and mid cervical region. She has lost the movement especially on rotation and lateral flexion to the right, while rotation and lateral flexion to the left is normal.”
With respect to radiculopathy, he observed:
“I cannot find any radiculopathy, certainly bicep, tricep reflex, everything is symmetrical. There is no obvious weakness that I can pick up and no sensory loss in the whole right upper limbs.”
He was both entitled and obliged to have regard to his findings on clinical examination. To the extent those differed from the findings or any other clinician, or with the opinion of the appellant, or with her self-report to him, or self-report in any previous statement, it was open to him to prefer the results of his clinical examination. He did so, in finding an absence of radiculopathy.
His reasoning was patent. On clinical testing, reflexes were symmetrical, and he could find no objective evidence of weakness or sensory loss in the right upper limb. In our view, his conclusion as to the absence of radiculopathy was reasonably open to him.
The mere fact that he was not satisfied of the presence of radiculopathy is not evidence that he failed to take into account the worker’s complaints of limitations in her right arm function, assuming in her favour that such complaints were made, or the limitations described at paragraph 41 of her statement.
On the contrary, Dr Yiu-Key Ho expressly accepted that there were limitations on the activities of daily living. He observed at paragraph 10b - emphasis added:
“…this is a case of DRE Cervical II with 5% whole person impairment and because of the weakness due to the rotator cuff problem in the right upper limbs as well as neck problem she has difficulty for activity of daily living and using Page 28 Paragraph 4.34 I believe she has 2% extra for this because a lot of heavy work at home has to be done by her husband including vacuuming.”
And at paragraph 5 under the heading, ‘Present symptoms’:
“The neck remains stiff. She is very scared to drive due to difficulty to move the neck.”
And under the heading, ‘Social activities/ADL’:
“Difficulty with the stiff and sore neck, and weak right arm, physical work needs help.”
This supports the view that he accepted the worker’s evidence of limitations in her daily activities, and took them into account in making an allowance of 2% for them. We are not satisfied that he failed to take into account the worker’s evidence of such limitations.
There is no evidence to support the submission that he failed to ask the appellant whether she had weakness or sensory loss in the right upper limb. The statutory declaration is inadmissible. Even if it were admissible, it does not address that issue.
For all these reasons, we can identify no error, or the application of incorrect criteria in respect of the assessment of the cervical spine.
Assessment of the right shoulder
There is no evidence to support the allegation that the Assessor failed to use a goniometer or inclinometer, as the statutory declaration on which reliance is placed is inadmissible.
Even if it were admissible, the Assessor gave detailed ROM measurements for both shoulders at paragraph 5 of the MAC. It is highly unlikely that he would have been able to supply this level of detail without the use of a goniometer. The inference that he used one is readily available, and we draw that inference, notwithstanding the appellant’s contrary recollection.
With respect to the alleged failure to produce documentary proof of his measurements, an Assessor is not required to do so. The measurements are set forth in detail at paragraph 5 of the certificate.
The appellant is correct in suggesting that only active ROM movements may be used in assessing impairment: paragraph 2.5 of the Guidelines. The presumption of regularity operates in favour of a finding that only active movements were used. In the absence of admissible evidence to the contrary, we are not satisfied that passive movements were used.
As we are not satisfied that the Assessor did not use a goniometer or inclinometer, there has been no failure to explain the reasons why he did not do so.
The mere fact that he did not refer to the worker’s statement is not evidence that he failed to have regard to it, and we are not satisfied that he failed to do so. The presumption of regularity supports a conclusion that he had regard to all relevant evidence.
We can identify no error, or the application of incorrect criteria in respect of the assessment of the right shoulder.
Conclusion
For the reasons given, the appeal is dismissed, and the MAC of Dr Yiu-Key Ho is confirmed.
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