Li v Lite n' Easy (NSW) Pty Ltd
[2024] NSWPICMP 175
•27 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Li v Lite n’ Easy (NSW) Pty Ltd [2024] NSWPICMP 175 |
| APPELLANT: | Wei Zhong Li |
| RESPONDENT: | Lite n’ Easy (New South Wales) Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | McDonald |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Pillemer |
| DATE OF DECISION: | 27 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; internal inconsistency in Medical Assessment Certificate (MAC)); failure to explain why diagnosis differed from radiology; re-examination; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 November 2023 Wei Zhong Li lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Philip Truskett, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 November 2023.
Ms Li relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Li was employed by Lite n’ Easy (New South Wales) Pty Ltd (Lite n’ Easy) as a process worker between 2006 and 2020. In 2012 she suffered a laceration to her right index finger when it was caught in a conveyor belt. She jarred her right shoulder when releasing her finger. Ms Li underwent surgery on her right index finger and returned to work. She had ongoing pain in her right shoulder which increased in 2016, causing her to stop work. After two weeks, Ms Li returned to full duties. In 2019 Ms Li underwent an ultrasound of her right shoulder, following which she had a cortisone injection and physiotherapy. After a further period off work, Ms Li returned to full time work with modified duties. She took annual leave in April 2020 and her employment was terminated soon after.
Ms Li made a claim for permanent impairment compensation, based on a report from Dr Dias who assessed 18% whole person impairment (WPI). The parties agreed that the Medical Assessor should assess Ms Li’s WPI in respect of her right upper extremity (shoulder, elbow and wrist) and her cervical spine with a deemed date of injury of 15 February 2019.
The Medical Assessor assessed 1% WPI arising from Ms Li’s right elbow only.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that Ms Li should undergo a further medical examination.
The Medical Assessor said that Ms Li’s presentation was consistent and that there was no exaggeration, suggesting that he accepted that Ms Li suffered the symptoms of which she complained. He took a history of discomfort in Ms Li’s right upper extremity and cervical spine and resulting restriction of activities. Despite that, the Medical Assessor recorded an equal, symmetrical and unrestricted range of motion on every assessment he undertook which is unlikely, given Ms Li’s age, the history provided and the radiological findings. The Medical Assessor did not engage with Ms Li’s history.
With respect to Ms Li’s right shoulder, the Medical Assessor made a diagnosis inconsistent with the radiological findings but did not explain why. An examination was necessary to resolve those issues.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Medical Assessor Pillemer of the Appeal Panel conducted an examination of the worker on 18 March 2024 and reported to us. His report forms part of these reasons and we adopt his findings.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Ms Li submitted that the Medical Assessor failed to make a proper diagnosis when he said that her right shoulder injury was a partial rotator cuff degenerative tear, which was inconsistent with the report of an MRI scan dated 7 September 2021 and the diagnoses made by other doctors.
Ms Li said that the Medical Assessor failed to apply the correct criteria to his assessment because her case fell within paragraph 2.14 of the Guidelines. She said that the Medical Assessor did not indicate that he had used a goniometer to assess the range of movement and that if the Medical Assessor has used the proper criteria, the outcome would have been different.
With respect to her cervical spine, Ms Li said that the Medical Assessor failed to conduct a full examination because he did not indicate if there was any muscle spasm and did not say if he saw the scans or only the reports.
Ms Li submitted that the Medical Assessor failed to make a diagnosis in respect of her right wrist injury and failed to properly consider an ultrasound report dated 27 August 2021.
In reply, Lite n’ Easy submitted that the Medical Assessor had not erred. It said that he had made a diagnosis of a partial rotator cuff degenerative tear of Ms Li’s right shoulder and disclosed his path of reasoning by referring to his examination findings and the investigations. Lite n’ Easy said that cl 2.14 of the Guidelines did not apply because Ms Li did complain of pain in her right shoulder.
With respect to Ms Li’s cervical spine, Lite n’ Easy said that the Medical Assessor set out his examination findings and noted that the Medical Assessor was not required to adopt or choose between competing assessments made by other medical examiners and was required to assess Ms Li as she presented on the day of the examination.[1]
[1] Guidelines paragraph 1.6.
Lite n’ Easy said that the Medical Assessor was not required to discuss all of the diagnoses before him and that he made a proper diagnosis in respect of her right wrist.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton,[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[3] the Court of Appeal held that an 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.
[3] [2006] NSWCA 284.
Right upper extremity - shoulder
The Medical Assessor recorded Ms Li’s symptoms:
“She has pain at the top and back of her right shoulder. Pain is always present. When good would score 3/10 and when bad would score 7/10 which occurs 3-4 times per week and may last for one hour. Pain is made worse by cold weather. As a result she will avoid activity. Pain is improved by medication and the application of hot packs.”
He described Ms Li’s her activities of daily living:
“Because of her discomfort she states she is not able to run or jog. She can walk for 20 minutes. She has inability to stand or sit for 30 minutes. She does not walk hills and stairs by choice. The husband usually drives her motor vehicle. She tends not to like to drive. Her husband assists her with her shopping. She can do housework but does not do heavy work such as making a bed or vacuuming. This is done by her husband. She is able to cook and wash dishes. Her husband does yard duties. She can socialise and can perform all acts of daily living.”
The Medical Assessor said that there was no wasting of the muscles of Ms Li’s shoulder girdle, a full range of shoulder movement with normal rhythm and no impingement.
When considering the radiology, the Medical Assessor set out the findings from each of the relevant scans:
“Ultrasound report right shoulder performed by Clareview Imaging on 19 February 2019 reported by Dr Patrick Johnston
1. Full thickness partial width supraspinatus tear.
2. Small partial tear of subscapularis tendon.
3. Subacromial/subdeltoid bursitis without features of impingement.
MRI right shoulder report by Superscan Imaging on 15 January 2019 reported by Dr Ramu Popuri
Conclusion. Tenosynovitis of tendon in the long head biceps seen. Insertional retinopathy is noted in the subscapularis tendon. Full thickness tear in the anterior insertional aspect supraspinatus tendon is seen measuring 1.2 x 0.6cm with a further high grade partial thickness undersurface tear of the posterior insertional aspect. Early AC joint and glenohumeral joint degenerative changes are seen.
..
Conclusion:
1. Near complete tear of supraspinatus tendon.
2. Marked subscapularis tendinitis.
3. Moderate biceps tendinosynovitis.
4. Subdeltoid bursitis.
5. AC joint degeneration.”
The Medical Assessor diagnosed a partial rotator cuff degenerative tear to Ms Li’s right shoulder. He did not explain why his opinion differed from the findings expressed by the radiologists who had interpreted the scans. The Medical Assessor’s error in that respect was not in failing to say whether he had seen the films or only the reports but in failing to say how he determined that the tear was only partial, in contrast to the reports. Even a partial tear is inconsistent with the range of motion observed by the Medical Assessor.
When making his assessment, the Medical Assessor said:
“Stable: yes.
Reference AMA Guide, 5th Edition, chapter 16, section 16.4, page 540. Figure 16.41, page 474, figure 16-40, page 476, figure 16-43, page 477 and figure 16-46 page 479 and NSW Workcover Guide, page 10-13. Whole person impairment 0%.
Reason for assessment: 0% whole person impairment has been assigned as there is a full range of shoulder movement as outlined by the quoted pie charts.”
The Medical Assessor said that his assessment differed from Dr Dias, who assessed Ms Li at the request of her solicitors, and Dr Riley, who assessed her on behalf of Lite n’ Easy, both of whom observed a reduction in shoulder movement which the Medical Assessor said was not present at his examination.
Ms Li submitted that the Medical Assessor did not say that he had used a goniometer. It is unlikely that the range of motion of Ms Li’s shoulders in all of the relevant planes could be assessed without one and the omission to refer to its use is not a demonstrable error.
Ms Li submitted that the second part of paragraph 2.14 of the Guidelines was appropriate to the assessment of her shoulder injury. Paragraph 2.14 begins:
“2.14 Most shoulder disorders with an abnormal range of movement are assessed according to AMA5 Section 16.4 ‘Evaluating abnormal motion’. (Please note that AMA5 indicates that internal and external rotation of the shoulder are to be measured with the arm abducted in the coronal plane to 90 degrees, and with the elbow flexed to 90 degrees. In those situations where abduction to 90 degrees is not possible, symmetrical measurement of rotation is to be carried out at the point of maximal abduction.)
Rare cases of rotator cuff injury, where the loss of shoulder motion does not reflect the severity of the tear, and there is no associated pain, may be assessed according to AMA5 Section 16.8c ‘Strength evaluation’. Other specific shoulder disorders where the loss of shoulder motion does not reflect the severity of the disorder, associated with pain, should be assessed by comparison with other impairments that have similar effect(s) on upper limb function.” (emphasis in original).
That paragraph does not apply in Ms Li’s case because she does suffer right shoulder pain associated with the tear to her rotator cuff and the pain she described is significant. The appropriate method of assessment in light of her history is the range of motion.
The Medical Assessor’s failure to explain that he disagreed with the radiology and the reason for that disagreement was a demonstrable error. So too was the disconnect between Ms Li’s long history of pain, noting that she said that the pain can be as high as 7-8/10, and the completely normal and symmetrical findings made by the Medical Assessor on examination. In those circumstances, it made little sense for the Medical Assessor to say that the examination was consistent and there was no exaggeration. The second error could not be resolved without examination by a medical member of the Appeal Panel and we adopt Medical Assessor Pillemer’s findings as reflecting Ms Li’s impairment on the day of his examination. Importantly, Medical Assessor Pillemer observed that Ms Li’s grip strength with both arms was excellent, confirming that Ms Li did not seek to maximise her disability.
Right upper extremity - elbow
The assessment made by Medical Assessor Pillemer of 11% upper extremity impairment (UEI) should be combined with the Medical Assessor’s assessment in respect of Ms Li’s right elbow about which there was no appeal.
The Medical Assessor said:
“On examining her elbow there was some tenderness in the region of the lateral epicondyle with pain on forced pronation against resistance in that region. There was a full range of elbow movement.”
The Medical Assessor said that the assessment was made in the following way:
“1% whole person impairment has been assigned as there is a full range of elbow movement as outlined by the quoted pie charts. There is clinical signs of lateral epicondylitis of greater than 18 months duration as stipulated in paragraph 2.18 of the Workcover Guide. A 1% whole person impairment therefore applies.”
Paragraph 2.18 provides:
“2.18 This condition is rated as 2% UEI (1% WPI). In order to assess impairment in cases of epicondylitis, symptoms must have been present for at least 18 months. Localised tenderness at the epicondyle must be present and provocative tests must also be positive. If there is an associated loss of range of movement, these figures are not combined, but the method giving the highest rating is used.”
That paragraph shows that the assessment of 1% WPI is in fact 2% UEI which should be combined with 11% UEI for the right shoulder. The resulting impairment is 13% UEI which converts to 8% WPI.
Right upper extremity - wrist
In respect of her right wrist, Ms Li argued that the Medical Assessor was in error for failing to review an ultrasound dated 26 August 2021 and to make an assessment of impairment consistent with those made by Dr Dias and Dr Riley.
The Medical Assessor recorded the history that:
“In cold weather she experiences pain in her right wrist at the back and both sides. This will occur 2-3 times per week and may last for 2-3 hours. It does not appear to be troubled by movement.”
He said that there was no deformity of Ms Li’s wrist and a full range of wrist movement. He set out the reasons for his assessment:
“Stable: yes.
Reference AMA Guide, 5th Edition, section 16.4g page 466. Figure 16-28, page 467, figure 16-31 page 469 and Workcover Guide, chapter 2, page 10-13. Whole person impairment 0%.
Reason for assessment of 0% whole person impairment has been assigned as there is a full range of wrist movement. There is no instability.”
Both Dr Dias and Dr Riley assessed permanent impairment in respect of Ms Li’s right wrist. Their assessments were made because there was a loss of the range of motion on examination.
The role of the Medical Assessor was to make an independent assessment on the day of the examination and not to adopt or choose between the assessments made by other doctors at another time.[4]
[4] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [26], discussing the applicability of Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480.
Dr Dias listed the ultrasound report dated 26 August 2021 in his report dated
7 February 2023 and said that the comments stated “[t]he study demonstrates extensor tendon tenosynovitis.” The report does not appear in the file provided to us.Ms Li’s general practitioner’s notes refer to the results and the diagnosis of extensor tendon tenosynovitis. When setting out the investigations he reviewed, Dr Riley observed that Dr Dias had some additional investigations including the 26 August 2021 ultrasound.
Because the report does not appear in the file and the references to it are not indexed and difficult to locate, it is hard to see how the Medical Assessor could be in error in failing to have regard to it. An assessment of impairment is made on the basis of the loss of the range of motion.
Medical Assessor Pillemer assessed a full range of pain free wrist movements and there is no basis to make an assessment of permanent impairment in respect of Ms Li’s right wrist. That is not inconsistent with the reported result of an ultrasound undertaken two and a half years before because there is time for the condition to have ameliorated in the intervening period.
Cervical spine
The Medical Assessor recorded:
“She experiences pain on the right side of her neck and behind her ear. Pain will occur if she is sitting or standing for long periods and would score 4/10. She always has a low grade discomfort. Pain will be exacerbated by sudden movement of her neck in addition.”
Describing his examination, the Medical Assessor said:
“On examining her neck there was no muscle guarding. There was a full range of neck movement. Flexion/extension was normal, lateral flexion left and right, rotation left and right was normal. Power, tone and sensation in both upper limbs was normal. Biceps, triceps and supinator jerks were present and equal. There was no wasting of the muscles of the upper limb. Both arms measured 26cm in circumference above the olecranon. Both forearms measured 22cm at their widest point.”
The Medical Assessor noted the findings of an MRI scan dated 11 February 2022:
“Conclusion: No definite neural impingement on the right side with moderate right foraminal stenosis at C5/6 from mild uncovertebral hypertrophy and facet arthrosis contacting but not compressing the right C6 nerve. The remaining right cervical foramina are widely patent and there is no central canal stenosis or focal disc protrusion.
Moderate to high grade left foraminal stenosis at C4/5 and uncovertebral hypertrophy and mild facet arthrosis causing slight flattening of the left C5 nerve in the foramen.”
The Medical Assessor diagnosed cervical spine spondylosis but did not assess permanent impairment saying:
“Reason for assessment of 0% whole person impairment has been assigned is there is no muscle guarding, no non-verifiable radicular complaint, no dysmetria, no neurological signs and no bony injury.”
Medical Assessor Pillemer’s findings are set out in his report. We adopt those findings which are consistent with Ms Li’s history. The lack of significant discomfort on the day of the examination does not conflict with the examination findings. Those findings are consistent with the most recent MRI scan.
Medical Assessor Pillemer’s findings support assessment in DRE cervical category II. An allowance of 2% is appropriate given Ms Li’s history as to the impact of the condition on her activities of daily living, resulting in 7% WPI for her cervical spine.
When 8% WPI in respect of Ms Li’s right upper extremity is combined with 7% WPI for her cervical spine, her total WPI is 15%.
For these reasons, we have determined that the MAC issued on 1 November 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
Rosheka Chandra
Dispute Support Officer
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W5362/23 |
Appellant: | WEI ZHONG LI |
Respondent: | Lite n’ Easy Pty Ltd |
Examination conducted by: | Roger Pillemer |
Date of Examination: Attendance: | 18 March 2024 A Mandarin interpreter was present |
The workers medical history, where it differs from previous records.
Please note that I read Ms Li the history given to Dr P Truskett at the time of her examination on 18 September 2023, and she agreed with the history as it was taken at the time.
Additional history since the original Medical Assessment Certificate was performed.
Ms Li continues to complain of discomfort being felt on the right side of her neck and going down her right shoulder region towards her right elbow, and intermittently she still gets discomfort in her right index finger.
On direct questioning she can go for a few hours without any particular discomfort, particularly after she has had a massage. Symptoms can however go as high as 7-8/10.
Symptoms are aggravated by movements of her head and neck or use of her right arm, and even sitting or standing for long can aggravate her symptoms. She does get some relief by having the massages and using her Tiger Oil and heat packs, and taking her tablets. Overall she does not feel that her symptoms have changed in recent times.
On direct questioning there is no numbness or paraesthesias present in her right arm.
Ms Li feels that she is still restricted with regard to her activities, and she does a minimal amount of housework at this stage, only preparing light meals and her husband and daughter do all the heavier activities. She does go shopping with her husband and he does all the carrying and she will only carry a minimal amount on the right side.
She manages with her self-care.
Findings on clinical examination
Ms Li is a slightly built adult female in no obvious discomfort today, who removes her upper garments without excessive elevation of her right arm.
She does have restriction of cervical movement particularly extension, with lateral rotation to the right being more restricted than to the left.
She has a full range of pain free left shoulder movement but does have residual restriction of right shoulder movement.
Right Shoulder Movements
Movement
Range
% Upper Extremity Impairment
Flexion
120°
4
Extension
40°
1
Abduction
100°
4
Adduction
50°
0
Internal rotation
60°
2
External rotation
70°
0
Total
11%
Ms Li complains of discomfort in the subacromial region anterolaterally and there is also discomfort to stressing the biceps tendon. There is positive impingement but satisfactory motor power of her right shoulder girdle muscles.
Ms Li has a full range of pain free elbow and wrist movements, and also a full range of movements of all the digits of both hands.
Reflexes are present and equal, and there was no sensory deficit present, and importantly she has excellent grip strength bilaterally.
There was no particular discomfort in the cervical region today with mild discomfort in her right trapezius area.
Results of any additional investigations since the original Medical Assessment Certificate
Ms Li has not had any further investigations carried out, and as noted previously, ultrasounds suggested full thickness tears in the supraspinatus with these investigations being carried out in August 2016 and February 2019, and an MRI of her right shoulder in January 2019 showed a full thickness tear of the anterior insertional aspect of supraspinatus with early AC joint and glenohumeral joint degenerative changes. There was also tenosynovitis of the long head of biceps.
I note that an MRI of her cervical spine on 11 February 2022 showed moderate to high grade foraminal stenosis at the C4/5 level with moderate foraminal stenosis at the C5/6 level, and no clear evidence of neurological involvement.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5362/23 |
Applicant: | Wei Zhong Li |
Respondent: | Lite n’ Easy (New South Wales) 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 Philip Truskett 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 AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 15.2.19 | Chapter 4, pages 24-29 | Chapter 15 page 392 Table 15-5 | 7% | nil | 7% |
| Right upper extremity (shoulder, elbow and wrist) | 15.2.19 | Chapter 2 pages 10-12 | Chapter 16 pages 433 to 521 | 8% | nil | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
4
0