Loizou v Maddocks Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Loizou v Maddocks Pty Ltd [2022] NSWPICMP 387
APPELLANT:	Joanne Loizou
RESPONDENT:	Maddocks Pty Ltd
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Dr David Crocker
MEDICAL ASSESSOR:	Dr Drew Dixon
DATE OF DECISION:	6 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Medical Assessor (MA) provided Medical Assessment Certificate (MAC) even though he found that one impairment required further investigation; Panel conducted re-examination and requested magnetic resonance imaging (MRI) scan; right shoulder impairment was capable of assessment; MA did not add component for impact of cervical spine injury on activities of daily living; no error when impact was result of shoulder injury; matter for clinical judgement; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 May 2022 Joanne Loizou lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 April 2022.
Ms Loizou relies on the following ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We have conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Loizou was employed by Maddocks Pty Ltd (Maddocks) as a legal secretary. On 20 July 2018 she fell while descending stairs after a work function and hit her right knee, the right side of her head, her right shoulder, right hip and upper back. She believes that she might have briefly lost consciousness. She returned to the office to collect her belongings, feeling unwell. She fell backwards while climbing stairs and put her left arm out to stop her fall, feeling a pop, as though her shoulder had dislocated. Over the next week, Ms Loizou went to Westmead Hospital Emergency Department on two occasions.
Ms Loizou underwent treatment and continued to work until August 2020. She is not working at present.
Ms Loizou claimed permanent impairment compensation in respect of her left upper extremity, right upper extremity, cervical spine and thoracic spine. The Medical Assessor said that Ms Loizou required re-investigation for the right shoulder. He therefore only assessed permanent impairment in respect of the other body parts referred to him. He placed her in DRE Cervical Category II and assessed 5% whole person impairment (WPI). He assessed 0% WPI in respect of the thoracic spine and left upper extremity and no appeal is brought in respect of those assessments.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that Ms Loizou should undergo a further medical examination because the Medical Assessor failed to assess all of the body parts referred to him. If the Medical Assessor considered that the impairment was not fully ascertainable in respect of the right upper extremity, it was a demonstrable error to assess WPI. It was not possible to determine the appeal without an examination.
Dr Dixon of the Appeal Panel conducted an examination of the worker on 8 September 2022 and reported to the Appeal Panel. A copy of his report is attached to these reasons as is the report of the MRI scan of Ms Loizou’s right shoulder and elbow dated 22 August 2022.
Pursuant to s 324(b) of the 1998 Act, we directed that Ms Loizou undergo an MRI scan of her right shoulder and take the scan and report to the examination with Dr Dixon and she did so. Neither party raised any issue about that direction.

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.
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 we have considered them.
Mr McManamey of counsel prepared submissions for Ms Loizou. He submitted that the Medical Assessor’s finding with respect to her right arm was, in effect, a statement that the Medical Assessor did not consider that the degree of permanent impairment was fully ascertainable. Despite that, he issued a MAC certifying 5% WPI. As there can be only one assessment of permanent impairment, it follows that if one body system cannot be assessed, the impairment cannot be ascertained.
Mr McManamey also said that the Medical Assessor was in error in not making an allowance for the impact on the activities of daily living (ADL) when assessing Ms Loizou’s cervical spine. He said that it is irrelevant that her ability to perform ADLs is also restricted by the injury to her right arm. Citing Murphy v Allity Management Services Pty Ltd[1] (Murphy), he said it was sufficient if the neck condition materially contributed to the impact on ADLs. He noted the history obtained by Dr Lai that Ms Loizou is limited in heavy domestic chores and at the gym. He noted that Ms Loizou identified her neck as restricting her ability to perform yard work and household duties. Mr McManamey said that the MAC should be revoked and that a new certificate should state that there was 7% WPI as a result of the cervical spine and state that the degree of permanent impairment cannot be fully ascertained.
[1] [2015] NSWWCCPD 49.
In reply and in submissions prepared by its solicitor, Ms Turnbull, Maddocks conceded that there was a demonstrable error with respect to the right upper extremity.
With respect to ADLs, Maddocks said that it was open to the Medical Assessor to find that the impact on Ms Loizou’s ADLs was due to the injury to her right arm, noting that paragraph 1.24 of the Guidelines provides that the impact of an injury on ADL is not considered in assessments of the upper and lower extremities. Maddocks submitted that the tasks identified – such as drying hair and cooking, were more indicative of an impact from the right shoulder than the neck.

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[2] 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.
[2] [2006] NSWCA 284.

Right upper extremity (shoulder)

The Medical Assessor set out Ms Loizou’s present symptoms:
“Ms Loizou confirmed that she is no longer working. She continues to have pain in her right flank which is aggravated by sitting and twisting and manipulating a mouse or carrying out any other right arm activities. The patient told me that her right shoulder has become more painful. Ms Loizou now has pain in the elbow and the right arm is weak. She cannot even lift a jug of fluid without holding it with the other hand.
In terms of her neck and thoracic spine, she continues to have pain in the neck and in the right flank.”
The Medical Assessor described his examination of Ms Loizou’s upper extremities:
“Left Upper Extremity: -The patient demonstrated a near normal range of movement in the left shoulder. There was no wasting, swelling or limitation of the shoulder. The elbow, wrist and hand were normal.
Right Upper Extremity: - There was a restriction of all movements at the shoulder with pain on posterior and anterior aspects of the shoulder. The patient also complained of pain in the elbow, although there was a normal range of movement and the patient complained of weakness but no sensory changes. The range of movement for the right shoulder is attached in the worksheet.”
He saw an MRI of the left shoulder dated 7 March 2020 which he said showed “mild acromioclavicular joint arthropathy but no evidence of a rotator cuff injury.” He said:
“The patient has sustained soft tissue injuries to the neck and thoracic spine. She has had a dislocation injury to the left shoulder which has improved and she has continuing problems with the whole of the right arm which requires investigation.”
The Medical Assessor said:
“The patient has continuing problems with the right upper extremity including pain and restriction of movement at the right shoulder and also has problems at the right elbow and also weakness in the right hand.
Ms Loizou needs to be re-investigated for the right shoulder and arm and to perform neurological studies prior to an assessment is to be made for the right upper extremity.
I have therefore assessed the patient for her cervical spine, thoracic spine and left upper extremity and the patient has a Total Whole Person Impairment of 5%.”
The independent medical examiners for each party were satisfied that they were able to prepare assessments of permanent impairment. Dr Lai prepared a report dated 6 October 2020 based on an examination undertaken by video link. He assessed 1% WPI in respect of Ms Loizou’s right upper extremity as part of an assessment of 17% WPI.
Dr Rimmer assessed Ms Loizou, also by telehealth, and prepared a report dated 21 September 2021 for Maddocks’ insurer. He diagnosed resolved soft tissue injuries to each of her right and left shoulders and did not consider that further investigations were required. He assessed 0% WPI as a result of the right shoulder injury.
Because other practitioners had been able to assess Ms Loizou’s shoulder, the Medical Assessor was required to carefully consider whether it was possible to make the assessment and whether further information was required. If further information was required, it was open to him to obtain it.
Section 324 of the 1998 Act provides:
“324 Powers of medical assessor on assessment
(1)     The medical assessor assessing a medical dispute may—
(a)consult with any medical practitioner or other health care professional who is treating or has treated the worker, and
(b)call for the production of such medical records (including X-rays and the results of other tests) and other information as the medical assessor considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and
(c)require the worker to submit himself or herself for examination by the medical assessor.
(2)     …
(3)     This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part.
(4)     A medical assessor hearing the appeal or who is assessing the matter by way of further assessment has all the powers of a medical assessor under this section on an assessment of a medical dispute.”
The Medical Assessor considered that neurological studies were required because of weakness in Ms Loizou’s right hand. His examination findings do not support the need for those studies. He noted that Ms Loizou complained of weakness but there were no sensory changes. The Medical Assessor did not say that he observed wasting in her hand or loss of reflexes. Dr Dixon did not observe wasting or neurological deficits and grip strength was preserved.
The MRI scan dated 22 August showed mild to moderate epicondylitis in Ms Loizou’s right elbow which the radiologist, Dr Srivastava, did not consider was a result of trauma. She did not claim compensation in respect of her right elbow nor was it the subject of referral to the Medical Assessor. Dr Srivastava considered that Ms Loizou had mild to moderate subacromial/subdeltoid bursitis and mild acromio-clavicular osteoarthritis. He did not observe a discrete rotator cuff tear.
The observations on the MRI scan of Ms Loizou’s right shoulder are consistent with the mechanism of injury and consistent with Dr Dixon’s clinical examination. Dr Dixon assessed 14% upper extremity impairment as a result of the shoulder injury which equates to 8% WPI and we adopt his findings.

Cervical spine

Ms Loizou’s complaint with respect to the assessment of her cervical spine is that the Medical Assessor did not make an allowance for the impact of the injury on her activities of daily living.
Paragraphs 1.24 and 1.25 of the Guidelines highlight the varying methods of assessment of the body systems covered:
“Many tables in AMA5 (eg in the spine section) give class values for particular impairments, with a range of possible impairment values in each class. Commonly, the tables require the assessor to consider the impact of the injury or illness on activities of daily living (ADL) in determining the precise impairment value. The ADL which should be considered, if relevant, are listed in AMA5 Table 1–2 (p 4). The impact of the injury on ADL is not considered in assessments of the upper or lower extremities.
The assessment of the impact of the injury or condition on ADL should be verified, wherever possible, by reference to objective assessments – for example, physiotherapist or occupational therapist functional assessments and other medical reports.”
The Guidelines provide in paragraphs 4.33 and 4.34:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.
The following diagram should be used as a guide to determine whether 0%, 1%, 2% or 3% WPI should be added to the bottom of the appropriate impairment range. This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury.”
A diagram follows and paragraph 4.35 reads:
“Increase base impairment by:
3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
Paragraph 4.36 states that for a single injury where more than one region of the spine has been injured, “the effect of the injury on ADL is assessed once only.”
The Medical Assessor noted that Ms Loizou lives in an apartment and “has no requirement for any outside activities.” He assessed the impairment of her cervical spine in DRE Cervical Category II and allowed 5% WPI. He said:
“I am making no addition for the impact of the injury on the activities of daily living as this is due to her right arm. The patient therefore has a Total Whole Person Impairment for the cervical spine of 5%.”
In her statement dated 15 December 2021, Ms Loizou said:
“I have become increasingly reliant on my family to support me and complete many of my household duties. My daughters now complete many of my duties including cooking, cleaning, washing the clothes and vacuuming. I have also lost a lot of strength in my right arm where I constantly feel like I could drop objects. My injuries have had a significant impact on my life and my ability to live it normally.”
Ms Loizou speculated as to the difficulty she would have if called on to work in a garden. She said:
“Prior to my injury, I would have been able to complete yard work without difficulty. Since the injury, I would now struggle to push and pull a lawn mower without placing a strain on my midback and neck. Bending, squatting and kneeling aggravates the pain in my mid-back and neck, which would make it difficult to tend to a garden. I struggle to lift even light objects and would find it difficult to hold heavy equipment that would place significant tension on my neck when supporting its weight.”
Dr Lai allowed 2% for the impact of the cervical spine injury on ADLs, though, as noted above, he assessed only 1% WPI in respect of the right shoulder injury.
Ms Loizou’s most significant complaints as recorded by Dr Rimmer were in respect of the function of her right shoulder, with pain radiating to her neck.
As Maddocks noted, Ms Loizou’s general practitioner Dr Lim said in August 2020 that the impact of the injury on ADLs was in drying her hair and in cooking.
In light of those histories, it was appropriate for the Medical Assessor to consider if there should be an increase in the assessment of Ms Loizou’s cervical spine for the impact on ADLs as paragraph 1.24 of the Guidelines directed him to do. The Medical Assessor said that the impact on Ms Loizou’s ADLs was a result of her right shoulder injury and not her cervical spine. We agree with his assessment, noting that Ms Loizou’s neck injury would be likely to impact on her sleep and her ability to drive and to look up.
Mr McManamey relied on Murphy to argue that an assessment of the impact on ADLs was appropriate if the cervical spine injury made a material contribution to that impact. The determination of medical disputes may involve questions of causation.[3] Murphy concerned the liability of an employer to pay reasonably necessary medical expenses in the context of a work injury and subsequent fall in a supermarket. Roche DP said that
“… The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).
[3] Bindah v Carter Holt Harvey Woodproducts Pty Ltd [2014] NSWCA 264, at [110].
If the Medical Assessor found that the cervical spine materially contributed to the impact on ADLs then it would have been appropriate to make an assessment. However, that does not mean that he was bound to do so, nor is it obvious that Ms Loizou’s neck condition must contribute to the impact on ADLs. The reference in paragraph 1.25 to verification of the impact based on objective assessments confirms that the allowance is not appropriate in every case. The extent of the allowance under paragraph 4.35 is a matter for clinical judgement as is whether to make an allowance at all. The Medical Assessor did not err in failing to do so.

For these reasons, the Appeal Panel has determined that the MAC issued on 8 April 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

M1-W6598/21 Joanne Loizou

Examination Date: 8 September 2022

Medical Assessor Panel Member: Dr Drew Dixon

Additional history since the original Medical Assessment Certificate was performed

Nil

Findings on clinical examination

The claimant was 175cm tall and weighed 95kg.

There was stiffness of the cervical spine with flexion decreased by one quarter associated with pain on neck extension which was decreased by one third. Lateral rotation was decreased by one quarter bilaterally and lateral flexion to the right was decreased by one third, due to pulling pain of the left trapezius muscle and lateral flexion to the left was decreased by one quarter. There was tenderness of the right trapezius muscle and tenderness of the supraclavicular brachial plexuses and tenderness in the biceps groove of the right shoulder.

There was restriction in elevation of her right shoulder with flexion 100 degrees, abduction 80 degrees, extension 30 degrees, adduction 30 degrees, external rotation 70 degrees and internal rotation 40 degrees.

She had a full range of motion of the left shoulder.

There was tenderness of the biceps in the right trapezius muscle and there was some tenderness of the trapezius muscle extending over the scapula. Shoulder girdle power was grade 4 out of 5 on the right and grade 4 plus out of 5 on the left. She had tenderness in the medial axillary wall. There was no apparent instability of the shoulders today on apprehension testing but she did complain of some forward tilt of the shoulder while sitting and there was a slight droop on examination. There was no wasting of the right upper extremity and no neurological deficit of either upper limb. Thenar power and intrinsic power of the right and left hand were grade 5 out of 5 and grip strength on the right was grade 4 plus out of 5 and on the left grade 5 out of 5. She had some tenderness at the lateral epicondyle with a negative provocation test and mild tenderness of the right olecranon area.

Results of any additional investigations since the original Medical Assessment Certificate

MRI of the right shoulder on 19 August 2022 showed subacromial bursitis with mild AC joint OA but no discrete rotator cuff tear and no fracture or joint effusion.

MRI of the right elbow on 19 August 2022 showed lateral epicondylosis.

Whole Person Impairment

That for the right shoulder for forward flexion of 100 degrees is 5% UEI, that for the active abduction of 80 degrees is 5% UEI, that for extension of 30 degrees is 1% UEI and that for adduction of 30 degrees is 1% UEI and that for external rotation of 70 degrees is 0% UEI and that for internal rotation of 40 degrees is 3% UEI. This gives a total of 15% UEI which equates to 9% whole person impairment.

When this is combined with the impairment for the cervical spine (DRE Category II, 5% WPI), it gives a total of 14% whole person impairment.

She has reached maximum medical improvement.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W6598/21
Applicant:	Joanne Loizou
Respondent:	Maddocks 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 Neil Berry 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 WorkCover Guides	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	20 July 2018	Chapter 4	Chapter 15 page 392 Table 15.5 DRE Category II	5	0	5
Thoracic spine	20 July 2018	Chapter 4	Chapter 15 page 398 Table 15.4 DRE Category I	0	0	0
Left Upper Extremity (shoulder)	20 July 2018	Chapter 2	Chapter 16 Figure 16.40 page 476 Figure 16.43 page 477 Figure 16.46 page 479	0	0	0
Right Upper Extremity (shoulder)	20 July 2018	Chapter 2	Chapter 16 Figure 16.40 page 476 Figure 16.43 page 477 Figure 16.46 p479	9	0	9
Total % WPI (the Combined Table values of all sub-totals)					14%

[2022] NSWPICMP 387

6 October 2022