Lowing v Staff Australia Payroll Services Pty Limited
[2023] NSWPICMP 351
•24 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lowing v Staff Australia Payroll Services Pty Limited [2023] NSWPICMP 351 |
| APPELLANT: | April Eva Lowing |
| RESPONDENT: | Staff Australia Payroll Services Pty Limited |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 24 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Worker alleged error in mistakes by the Medical Assessor (MA) in recording the findings of an independent medical examination (IME) which led to a failure to engage with the evidence; in asserting that the movements of her upper extremities were “normal and equivalent” rather than recording the degree of movement; and in conducting an inadequate examination; Held – on a fair reading of the Medical Assessment Certificate (MAC) the MA was thoroughly conversant with the worker’s medical case; the reference to “normal” movement established that there was no restriction of movement for the purpose of establishing whole person impairment (WPI) in accordance with American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) and the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th ed 1 March 2021 (Guidelines); and the panel found no basis for the assertion of an inadequate examination; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 May 2023, April Eva Lowing (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 14 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 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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 grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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
The appellant was employed by Staff Australia Payroll Services Pty Limited (the respondent) to work in packing duties at the Woolworths distribution centre at Minchinbury. She states that this work involved “repetitive and strenuous lifting of heavy weights and boxes containing retail items”. Over several months prior to 12 April 2018, the appellant developed widespread pain in her hands, wrists, arms, and neck. She ceased work at that time and sought treatment from Dr Michael Chan, a general practitioner.
When her symptoms did not improve with conservative treatment, Dr Chan referred the appellant to several specialists for treatment including Dr Yeoh, an orthopaedic surgeon, Dr Kevin Boundy, a sports physician, Dr Andrew Jordan, a rheumatologist, and Dr Paul Teychenne, a neurologist.
Dr Boundy initially raised the possibility that the appellant might suffer from fibromyalgia. He suggested that she be referred to a rheumatologist. After excluding a number of other causes, Dr Jordan also expressed the opinion that the appellant suffered from “fibromyalgia with a more localised presentation”.
On 12 March 2021, the appellant saw Dr Frank Machart, an orthopaedic surgeon, at the request of her solicitors. He found it difficult to establish a precise diagnosis. Nonetheless, he expressed the opinion that the appellant suffered an:
“…occupational repetitive strain injury to upper limbs and right shoulder impingement symptomatic, and symptoms extending into the cervical spine.”
Dr Machart expressed the opinion that the appellant suffered 16% whole person impairment (WPI). This consisted of 7% WPI for the cervical spine, 5% WPI for the right upper extremity, and 4% WPI for the left upper extremity.
On 6 September 2021, the appellant saw Dr Terry Kwong, a consultant physician and rheumatologist at the request of her solicitors. He expressed the opinion that the appellant had specific localised diagnoses, which explained her pain. They were a cervical strain; subacromial bursitis and tendinopathy of the right shoulder; chronic lateral epicondylitis of the right elbow; de Quervain’s tendonitis of the right wrist; chronic lateral epicondylitis of the left elbow; and chronic tenosynovitis and de Quervain’s tenosynovitis of the left wrist. He was of the opinion that she suffered 15% WPI of which 7% related to the cervical spine, 5% to the right upper extremity and 4% to the left upper extremity.
The respondent also referred the appellant to a rheumatologist, Dr Loretta Reiter. In a report dated 23 January 2019, Dr Reiter expressed the opinion that the appellant suffered fibromyalgia and that her previous employment was not the main contributing factor to that disease.
Dr Reiter saw the appellant again by tele-health on 9 May 2022. In a report of 13 May 2022 she reiterated her opinion that the appellant suffered fibromyalgia. She specifically stated that the appellant had not suffered a cervical injury and that her neck symptoms were solely due to fibromyalgia.
Dr Granot, a neurologist, saw the appellant at the request of the respondent’s solicitor on 2 May 2022. After reviewing the entirety of her medical history including the reports of Dr Machart and Dr Kwong and all of the relevant investigations, he expressed the opinion that the appellant had not suffered an injury to her cervical spine arising out of or in the course of her employment. He thought there was no evidence either clinically or on investigation of a neurological basis for her pain syndrome. Accordingly, he thought there was no basis upon which to “ascribe maximum medical improvement”.
Dr Diebold, an orthopaedic surgeon, saw the appellant at the request of the respondent’s solicitor. He was unable to make a diagnosis which could explain the appellant’s pain. He also expressed the opinion that the appellant did not suffer a neck injury in the course of her employment.
At a conference before a Member of the Personal Injury Commission on 16 December 2022, it was agreed that the appellant suffered 6% WPI as a result of a secondary respiratory system (sleep disorder). It was also agreed that the worker did not suffer an incomplete cervical cord lesion as a result of a work injury. The appellant withdrew her claim in respect of the neck and right shoulder. However, there remained a medical dispute between the parties as to the extent of the appellant’s WPI in respect of both the left and right upper extremities (elbows, forearms, wrists and hands). That dispute It was remitted to the President for referral to an MA.
In due course, a delegate of the President referred the dispute to Dr Anderson. It is from his MAC that the appellant brings this appeal.
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.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the worker to undergo a further medical examination by a Member of the Panel.
The Panel noted that the appellant’s solicitor specifically sought a re-examination by a Member of the Panel. However, as the Panel has not found either demonstrable error or the application of incorrect criteria in the MAC, a further examination is inappropriate. The case law instructs that a further medical examination should only take place when there is either a finding of error or the admission of fresh evidence.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full, but have been considered by the Appeal Panel.
In summary, the appellant alleged three broad errors. First, the MA’s summary of Dr Kwong’s report was inaccurate and a misrepresentation of his findings and assessment. Specifically, the MA “only mentioned the chronic epicondylitis”, whereas Dr Kwong had assessed impairment in the appellant’s wrists. This error was compounded as the MA did not set out the findings of Dr Machart.
It followed that the MA was:
“…under the misapprehension that all of the doctors considered that the worker has fibromyalgia and not a work-related condition which has caused the impairment”.
Secondly, the appellant submitted that the MA failed to engage with all of the evidence before him. This reflected an incorrect assumption that she had been diagnosed with an “intrinsic condition, and that she was only presenting with pain”.
Thirdly, the appellant submitted that the MA’s physical examination was “cursory at best”. His reporting that the appellant moved elbows, wrists, hands and all digits in a symmetrical fashion throughout normal range was said to be “meaningless”.
The appellant continued:
“It can readily be seen that the examinations of the wrists by both Dr Machart and Dr Kwong elicited ‘symmetrical and equivalent’ findings in respect of flexion and extension, resulting in identical assessments. Furthermore, it is not clear what ‘normal range’ means. There were no measurements recorded by the MA, unlike the other assessors.”
The appellant continued:
“It is respectfully submitted that the reasons provided by the MA are also inadequate as they do not provide any information as to what the actual measurements were in respect of flexion and extension. This is critical because this is where both Dr Machart and Dr Kwong found impairment.
The failure to conduct the examination in accordance with the guidelines by properly recording the findings is both a demonstrable error and the application of incorrect criteria.”
The respondent denied that the MA had erred in his assessment of the appellant. He was not, as the appellant alleged, under the misapprehension that the appellant only suffered from a non-work-related condition namely fibromyalgia, he specifically found that there was evidence of moderate lateral and medial epicondylitis of the right elbow and lateral epicondylitis of the left elbow.
Rather than state that all the doctors considered that the appellant had fibromyalgia, he stated that a number of specialists had diagnosed this condition by way of a summary of the evidence before him.
Further, there was a good deal of evidence in the medical cases of each party that the appellant did suffer a fibromyalgia. In particular, the respondent refers to the opinions of Dr Jordan, the treating rheumatologist and Dr Boundy, the sports medicine physician. The respondent continues:
“The MA has appropriately read the evidence and has considered the overwhelming evidence in support of fibromyalgia but at no stage does he say that all doctors made this findings.
As discussed above, the MA found evidence of epicondylitis and assessed impairment the same.”
In respect of the assertion that the MA erred in failing to record actual measurements, the respondent submitted:
“The appellant’s basis for this submission is without merit, and the MA has explained his findings for range of motion observing the range for the upper extremities was not restricted. The appellant is merely cavilling with the clinical judgement of the MA, rather than submitting an error has been committed.”
The respondent submitted that if the MA found restrictions of bilateral wrists or elbows he would have recorded those findings in the MAC.
In respect of the allegation that the MA failed to properly engage with all of the evidence, the respondent notes that the MA referred specifically to the opinions of Dr Kwong and Dr Machart both of whom assessed impairment. While the MA referred to these opinions, it was clear that he did not accept their opinions.
Finally, the appellant refers to the decision of Malpass JA in Mahenthirarasa v State Rail Authority of New South Wales & Ors,[1] where his Honour said:
“A demonstrable error would essentially be an error for which there is no information or materials for the finding made – rather than a difference of opinion.”
[1] [2007] NSWSC 22.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This sub-section was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales,[2] Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
[2] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Ltd V Kocak[3] that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[3] [2013] HCA 43 ((30 October 2013) (Wingfoot).
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation Legislation; see, for example, El Masri v Woolworths Ltd.[4]
[4] [2014] NSWSC 1344 (26 September 2014).
There are two errors in the MAC. First, as the appellant asserts, the MA’s “comments” on the report of Dr Kwong are inaccurate or incomplete. He simply records “Chronic epicondylitis 1% WPI” whereas Dr Kwong had found tenosynovitis in both the appellant’s wrists and assessed WPI for both elbows and wrists. Secondly, the MA incorrectly ascribed the diagnosis of fibromyalgia to Dr Kwong. While Dr Kwong refers to Dr Jordan making that diagnosis, he does not express the opinion that the appellant suffers fibromyalgia in the opinion section of his report. Rather, he diagnosed localised pathology in the appellant’s wrists and elbows, and at other sites not referred for assessment. The question arises whether these comments vitiate the MA’s determination of the appellant’s WPI and thus give rise to a demonstrable error.
The appellant argued that as a result of these mistakes in the MA wrongly assumed that the appellant had a non-work-related condition which was responsible for her impairment. But the MA’s findings do not bear out this criticism. By his MAC, the MA recorded the results of his physical examination as follows:
“Cervical spine. There was no specific focus of pain or tenderness. The movements of forward flexion and lateral rotation to each side was slightly reduced to two-thirds of the normal range. Extension and lateral extension to each side were further reduced to half the normal range.
She had a normal range of movement of the shoulders. Movement of the elbows, wrists, hands and all digits was symmetrical, equivalent and easily throughout the normal range.
The carpal tunnel decompression scars over the volar surface of each wrist had healed well. On the right side there was a faint (very faint) positive Tinel’s sign. The left side was completely normal.
Cautiously conducted forearm provocation testing for muscle, nerve and tendon demonstrated continuing epicondylitis on the medial and lateral side of the right elbow and the lateral side of the left elbow.
No other features were identified. The upper limbs were neurologically intact. There was no alteration of temperature, sweating, colour or nail growth.”
Plainly, the MA examined both the appellants elbows and wrists to ascertain whether there was localised pathology at those sites. At the right wrist, he was able to elicit a positive Tinel’s which was clinical evidence of the appellant’s prior carpal tunnel syndrome. At the elbows on both sides he conducted provocation testing which demonstrated bilateral epicondylitis. He attributed these conditions to the appellant’s employment. These findings, and the comprehensive nature of the MA’s examination, are completely inconsistent with an a priori assumption that the appellant’s symptoms were entirely explicable on the basis of fibromyalgia or a non work-related condition.
Secondly, in his summary of injuries the MA did not assume that it was unrelated to work. Rather, he recorded the medical opinion that work may have been “the trigger” for the onset of fibromyalgia. The MA gave the following summary of injuries and diagnoses:
“Ms Lowing gives a history of experiencing aches and pains in her upper limbs which came on fairly forcefully in mid-March 2018. At the time she was working arduously in a Woolworths distribution warehouse. Her tasking was to load cartons of stock on to pallets. The maximum weight of cartons was often up to 22kg. The hours were long. She developed pain in her hands and forearms. She was unable to continue with this work. Extensive investigations demonstrated relatively minor physical conditions. It was identified that her condition was due to the development of ‘fibromyalgia’. Extensive review by rheumatological, neurological and orthopaedic specialists has indicated that this condition is not due to her work but is intrinsic to her. Nevertheless, her occupation may have been the ‘trigger’ that started off the pain condition. At this assessment she had a chronic pain condition which has continued since the development of this situation. There was also evidence of mild to moderate chronic lateral epicondylitis bilaterally and medial epicondylitis of the right elbow. There were no neurological features.” (Panel’s Italics)
While he recorded the history from the medical evidence, his diagnosis was not an unambiguous acceptance of fibromyalgia. Rather, he found a “chronic pain condition” and localised epicondylitis.
Thirdly, contrary to the appellant’s submissions, it is quite clear that the MA had read the reports of Dr Kwong and Dr Machart. He recorded that Dr Machart diagnosed a chronic strain associated with the appellant’s occupation and opined that she had WPI at both the wrists and the elbows. Thus, the MA was conversant with the general thrust of the appellant’s medical case and that these medical practitioners found limitation on movement at the wrists, and in the case of Dr Kwong, at the elbow. He was cognisant of their opinion that these restrictions gave rise to WPI.
It follows that the appellant’s argument that MA acted under a misapprehension that the worker had fibromyalgia and no work-related condition must fail. For similar reasons the panel is not persuaded that the MA did not engage with the evidence. He was cognizant of the worker’s claim of permanent impairment based on local pathology at the wrist and elbow. He was undoubtedly conversant with the worker’s medical history. However, on his examination he was unable to find evidence of the pathology or restriction of movement at the wrist on which the appellant’s claim for permanent impairment was founded.
It is not the task of the MA to adjudicate on the medical debate in the case. Rather, in accordance with the reasoning in Wingfoot it was his role to carry out a medical examination and give an opinion on the basis of his medical expertise. The MA adequately performed that function.
The third alleged error commences with an assertion that the MA’s physical examination “was cursory at best”. There is no basis in the MAC for that assertion. The appellant is silent on what further examination should have been carried out by the MA. In the opinion of the medical practitioners on the panel, the extracts set out above suggest a thorough physical examination.
The other aspect of this alleged error is that the MA’s reference to normal movements through a symmetrical range is “meaningless”. But it is crystal clear that the MA found that the appellant had a full and equivalent movements at the wrist and elbow in each upper limb. Where he found restriction of movement the MA recorded it. Thus, on examination of the neck, he recorded that both flexion and lateral rotation were reduced to 2/3 normal range and extension and lateral extension were reduced to half normal range.
Self-evidently, he did not record restriction of movement at the wrist and the elbow because there was none to record. In the absence of both a restriction of movement and clearly identifiable pathology, he could not certify permanent impairment in accordance with AMA 5 and the Guidelines. There is no demonstrable error or the application of incorrect criteria.
As the respondent argues, many of the treating medical practitioners referred to full or normal examinations of the upper limbs. Dr Yeoh, the treating orthopaedic surgeon, found a full range of movement of the appellant’s upper limbs shortly after she ceased work. He diagnosed pain syndrome as did Dr Boundy and Dr Jordan. Thus, the MA’s determination is consistent with the entirety of the treating medical evidence. In the context of the history which goes back several years only Dr Kwong found significant restriction of movement and signs of tenosynovitis at the appellant’s wrists.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 April 2023 should be confirmed.
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