Lieng v Blueyco Pty Limited trading as Elf Mushrooms
[2022] NSWPICMP 61
•25 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lieng v Blueyco Pty Limited trading as ELF Mushrooms [2022] NSWPICMP 61 |
| APPELLANT: | Siam Lieng |
| RESPONDENT: | Blueyco Pty Limited trading as ELF Mushrooms |
| APPEAL PANEL: | Member R J Perrignon Dr Margaret Gibson Dr Gregory McGroder |
| DATE OF DECISION: | 25 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of 0% whole person impairment (cervical spine); whether assessor applied incorrect criteria by failing to give reasons for assessing a DRE Category I impairment; whether he formed a view inconsistent with the finding of injury; whether he in fact assessed a DRE Category II impairment; whether the symptoms were inconsistent with a DRE Category I impairment; whether he erred by failing to make allowance for ADL’s; whether he denied the worker procedural fairness; Held- appeal from assessment of cervical spine and right upper extremity; whether assessor erred in failing to assess the left upper extremity (not referred for assessment) after taking a history of symptoms in that body part; whether an appeal lies on the basis that the condition of the worker’s left upper extremity has deteriorated. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Lieng, appeals from the Medical Assessment Certificate of
Medical Assessor Mastroianni dated 17 November 2021.The appellant suffered injury to her cervical spine and right upper extremity as a result of repetitive duties as a mushroom picker. The date of injury was deemed to be 1 March 2018.
By his Medical Assessment Certificate dated 17 November 2021, Dr Mastroianni assessed a 13% whole person impairment (0% cervical spine, 13% right upper extremity - wrist, elbow and shoulder). He assessed the cervical spine as DRE Category I because, on examination, he found inconsistences in range of movement, and was not convinced that pain was present.
The appellant appeals pursuant to section 326(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998, on the basis that Dr Mastroianni’s assessment of the cervical spine demonstrates error, and the application of incorrect criteria.
She also appeals pursuant to section 326(3)(a), on the basis that the condition of her left shoulder, elbow and wrist results from injury and has deteriorated, and requires assessment by the Panel. Dr Mastroianni did not assess the left shoulder, as it was not referred to him for assessment.
The appellant does not allege any error in respect of Dr Mastroianni’s assessment of her right upper extremity.
The Appeal Panel conducted a preliminary review of Dr Mastroianni’s 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 worker submits as follows:
(a) With respect to the cervical spine:
(i)Dr Mastroianni applied incorrect criteria by failing to give reasons for assessing a DRE Category I impairment in respect of the cervical spine. The reasons given by him, namely, that the claimant’s ‘clinical presentation cannot be explained by the underlying condition’ does not satisfy the standards in Wingfoot Australia Partners v Kocak (2013) 252 CLR 480 or Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [30];
(ii)he formed a view inconsistent with the allegation of injury to the cervical spine;
(iii)at [10a] of his reasons, Dr Mastroianni assessed a DRE category II impairment. That is inconsistent with a 0% whole person impairment;
(iv)the symptoms were inconsistent with a DRE category I impairment;
(v)having taken a history at [4], that the applicant ‘manages to do the housework but it is very difficult because of the arm pain’, the Medical Assessor should have made an allowance for activities of daily living, but failed to do so, and
(vi)the Medical Assessor denied the appellant procedural fairness in failing to alert her to a potential finding that her cervical movements were inconsistent, and giving her an opportunity to explain the perceived inconsistencies: Jaksic v Insurance Australia ltd t/as NRMA [2013] NSWSC 1141.
(b) With respect to the left upper extremity, the appellant ‘relies on the left upper extremity (left shoulder, left elbow and left wrist) as a consequential injury’, and complained to the Medical Assessor of symptoms in this body system during physical examination. The Medical Assessor failed to assess the left upper extremity, despite the worker having ‘demonstrated that there is a deterioration of the applicant's left upper extremity as a result of being a consequential injury, in which, her overall impairment is getting worst’ [sic].
The respondent submits, in brief summary, as follows:
(a) With respect to the cervical spine:
(i)the Medical Assessor’s reasons for assessing a DRE category I impairment exposed the path of reasoning to the extent that an appellate body is able to discern whether or not there is error, thus satisfying the test in Wingfoot;
(ii)the Medical Assessor did not decide that there was no injury to the cervical spine. He diagnosed a soft tissue injury, noting the presence of cervical spondylosis;
(iii)the Medical Assessor was entitled to make no allowance for the effects on activities of daily living, in the exercise of his clinical judgment;
(iv)the Medical Assessor had no duty to raise the issue of inconsistency of presentation with the worker, because the principles in Jaksic with respect to procedural fairness apply to assessments under the Motor Accidents Authority Permanent Impairment Guidelines, and not to assessments under the Guidelines: Martinovic v Sydney South West Area Health [2016] NSWWCCMA 131, and
(v)in any event, the range of motion method is not applicable to assessments of the cervical spine: Martinovic.
(b) The body parts referred for assessment did not include the left upper extremity. The Medical Assessor was not permitted to assess the left upper extremity in the absence of a referral of that body part for assessment: Galea v Colourwise Nursery (NSW) Pty Ltd [2019] NSW WCC 362; Matilda Cruises Pty Ltd v Sweeny [2018] NSWWCCPD 37.
Cervical spine - adequacy of reasons
Dr Mastroianni gave the following reasons for assessing a DRE I impairment at [5] - emphasis added:
“She is a lady of stated age who appeared to be in no discomfort as she got up from the waiting room and when coming into the examination room. As she shows her Covid test results and when sitting she demonstrates free neck movements in contrast to formal examination.
Examination of the neck reveals no muscle guarding or muscle tenderness, however she responds to light touch as if she has allodynia in the neck. Axial pressure was positive ++ and placing the hand on the head causes her to shrug the shoulders, flex forward and buckle at the knees. When testing range of movements, she braces herself and very slowly moves the neck. The range of movement is constantly inconsistent in all planes and the range was observed to be normal on a couple of occasions.”
And at [7] - emphasis added:
“Ms Lieng presents with symptom magnification. This was most evident when applying minimal axial pressure by placing my hand on her head. There were inconsistencies when assessing range of movements in the neck.”
And at [10a] -emphasis added:
“In the neck I found no muscle guarding. Although neck movements were restricted, at times she demonstrated normal range of movement. Clinically I am not convinced of localised tenderness in the neck. Her clinical presentation cannot be explained by the underlying condition. In my opinion she best fits the descriptors for DRE Cervical Category II, 0% WPI.”
Dr Mastroianni indicated that he observed free neck movement when moving from the waiting room to the examination room, and while sitting and showing him the results of her COVID test in the examination room. On the other hand, during formal examination, there was bracing, slow movement, and inconsistent range of movement in all planes.
He also noted pain symptoms when placing minimal axial pressure on the worker’s head. Together with the lack of muscle guarding in the neck, this caused him to be satisfied that the worker was magnifying her pain symptoms.
Despite measuring the range of motion of the cervical spine, the Medical Assessor did not use the range of motion method to assess it. He used the DRE method, as required by 4.1 of the Guidelines.
Table 15.5 of AMA5 lists the following criteria for assessing a DRE class I impairment in respect of the cervical spine:
“No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures.”
The Medical Assessor found there was no muscle guarding. He made no findings of neurologic impairment or fractures.
To assess a DRE category I impairment as he did, he must have found, at least by necessary implication, that there was “no significant loss of motion segment integrity” and “no other indication of impairment related to injury or illness”.
His findings with respect to range of motion were relevant to the first issue, and his findings with respect to pain symptoms were relevant to the second. In other words:
(a) he was not satisfied that there was loss of motion segment integrity because of inconsistencies in the range of movement, and
(b) he was not satisfied there was neck pain (an indication of impairment potentially related to injury) because of the lack of muscle guarding.
In our view, his reasons were sufficiently patent to enable an appellate body to discern whether there was error. We are not persuaded that they were inadequate. This ground of appeal fails.
Cervical spine - procedural fairness
The worker appeals on the ground of demonstrable error: section 326(3)(c). The error on which she relies is an alleged failure of the Medical Assessor to alert her to inconsistencies in presentation identified and afford her the opportunity to explain them.
‘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 Medical Assessment Certificate and the document referring the worker for assessment are silent on the issue as to whether the worker was alerted to the inconsistencies. There is no evidence before us to confirm or disprove the allegation.
Whether or not the allegation is correct, it cannot amount to demonstrable error. For that reason, this ground fails.
It is unnecessary to decide whether the medical assessor was required to alert the worker to inconsistencies in presentation and afford an opportunity to explain them, as was the case in Jaksic, which concerned an assessment under the Motor Accidents Authority Permanent Impairment Guidelines.
Cervical spine - other grounds of appeal
The Medical Assessor did not form a view inconsistent with the allegation of injury to the cervical spine. On the contrary, he diagnosed a soft tissue injury to the cervical spine, in the presence of cervical spondylosis. This ground fails.
When read in the context of the Medical Assessment Certificate as a whole, the reference at [10a] to a Category II impairment is a typographical error for Category I. There is no inconsistency with the assessment of a 0% whole person impairment. This ground fails.
The mere fact that the worker alleged there were symptoms in the neck did not compel the Medical Assessor to assess a Category II impairment, in circumstances where he was not satisfied that the symptoms were genuine. This ground fails.
The Medical Assessor took a history of interference with activities of daily living due to pain. For the reasons given above, he did not accept the complaints of pain were genuine. In those circumstances, he was under no compulsion to accept that there should be any allowance for interference with activities of daily living. This ground fails.
Deterioration - left upper extremity
Further and in the alternative, the worker appeals on the basis that there has been a deterioration in her condition since the assessment of Dr Mastroianni, resulting in an increase in the degree of permanent impairment resulting from injury: section 326(3)(a).
She relies on the condition of her left shoulder, left elbow and wrist, which she says resulted from injury to her right shoulder.
Dr Mastroianni took a history at [4] of pain in the left arm due to favouring the injured right arm. However, he did not assess the left upper extremity, because that body part had not been referred to him for assessment. It was not referred for assessment, because the Application to Resolve a Dispute (Form 2) pleaded no allegation of a consequential condition of the left upper extremity.
As it was not referred for assessment, Dr Mastroianni had no power to assess it.
Section 326(3)(a) requires that there be a deterioration in the worker’s condition since the assessment from which appeal is made.
Even if the worker does suffer from a consequential condition of the left upper extremity, as to which we can make no finding, there is no evidence before us that the condition of her left upper extremity has deteriorated since Dr Mastroianni assessed her on 10 November 2021.
There is also no evidence that a claim for compensation for whole person impairment of the left upper extremity has ever been made by the worker or determined by the insurer or the Commission. The letter of claim dated 7 January 2021 relies on the assessment of Dr Dias, who does not assess the left upper extremity. An undated claim form annexed to the Application to Resolve a Dispute alleges an injury to the left hand, but makes no mention of a consequential condition.
For all those reasons, there is no basis for an assessment the left upper extremity by the Panel in order to determine whether there has been a deterioration. This ground fails.
Conclusion
For the reasons given, we are not satisfied that incorrect criteria have been applied, that there was demonstrable error, or that there has been a relevant deterioration in the condition of the left upper extremity.
The appeal is dismissed, and the Medical Assessment Certificate of Dr Mastroianni is confirmed.
0
5
0