Mabbett v IW4U Employment Services Pty Ltd
[2023] NSWPICMP 41
•15 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mabbett v IW4U Employment Services Pty Ltd [2023] NSWPICMP 41 |
| APPELLANT: | Tyson Mabbett |
| RESPONDENT: | IW4U Employment Services Pty Ltd |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Robin Fitzsimons |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 15 February 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appellant submitted the Medical Assessor erred with respect to his findings regarding range of movement of the left upper extremity; Panel found no error; appellant’s treating doctor’s assessment inconsistent with the evidence; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 October 2022 Tyson Mabbett (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr John Hugh O’Neill, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 September 2022.
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,
· 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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
EVIDENCE
Documentary 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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred with respect to his findings regarding range of movement of the left upper extremity.
In reply, IW4U Employment Services Pty Ltd (the respondent) submits that no errors were made.
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 [2006] NSWCA 284 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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the left upper extremity resulting from an injury on 10 April 2018.
The MA obtained the following history:
“Mr Mabbett forcibly pulled a pallet off a stack. When he did so a paling came loose and a nail protruding from that paling forcefully penetrated the lateral and distal aspect of Mr Mabbett’s left forearm, just above the wrist. Mr Mabbett said a first aid person removed the nail.
Mr Mabbett attended the Fairfield District Medical Centre where he was seen by Dr Fernandopulle. She noted ‘difficulty flexing wrist. No sensory loss’. She applied a dressing and gave a tetanus toxoid injection.
At review by Dr Fernandopulle on 17 April 2018, it was again noted Mr Mabbett ‘complained of difficulty flexing left wrist. Movement restricted by pain. No sensory loss’.
Mr Mabbett was seen by Dr Wong (GP) on 18 April 2018. It was noted ‘he cannot flex wrist but can extend’. Dr Wong referred Mr Mabbett to Professor Gumley (hand surgeon).
At initial consultation on 11 May 2018, Professor Gumley stated ‘he has some discomfort on tendon motion. He does have a very sensitive radial sensory nerve just proximal and ulnar to the initial penetrating injury. If this remains very tender and sensitive, exploration for possible radial sensory nerve injury may be required’. Professor Gumley arranged an MRI scan but I could not find a report amongst documents.
At review on 23 May 2018, Professor Gumley said ‘unfortunately the (MRI) report is not finalised as yet. Nevertheless, clinically he continues to have features of partial radial sensory nerve laceration with a distinctly positive Tinel's sign over a point adjacent to the nail skin penetration and along the line of its course. His adjacent extensor tendon function is intact. I have recommended surgical exploration’.
At review on 27 June 2018, Professor Gumley stated ‘Tyson's radial nerve irritation continues. He has a distinctly positive Tinel's sign just proximal and dorsal to the nail penetration site, indicative of a radial sensory nerve injury’.
Exploration under anaesthetic was undertaken on 29 June 2018.
At consultation on 12 July 2018, Professor Gumley stated ‘at his surgery a partial nerve injury was noted that required a combination of suture closure and nerve wrap. It is hoped this will give him appropriate improvement of his nerve-related pain’.
At review on 9 August 2018, Professor Gumley stated ‘his sensation has improved to the dorsum of the first web space and despite a fairly widespread area of sensitivity to gentle touch over the skin on the radial aspect of his distal forearm, this appears to have diminished compared to preoperatively’.
At review on 7 September 2018, Professor Gumley noticed ‘some recurrence of the numbness in his first web space dorsally. This particular nerve, once injured, has a difficult biological profile and it is possible he will retain impaired function and pain on contact to the region. I would suggest he be considered for a retraining programme by his Insurer’.
At review on 13 December 2018, Professor Gumley stated ‘in addition to his radial sensory neuritis based upon the penetrating injury at work, he has developed ongoing cubital tunnel syndrome likely related to altered arm posture during the recovery’.
Professor Gumley arranged upper limb nerve conduction studies which were undertaken at Macquarie Neurology on 8 October 2018. The study was normal and ‘in summary, there is no evidence of median, ulnar or radial neuropathy’.
A further nerve conduction study was undertaken in Western Australia by Dr Knezevic, neurologist, on 6 December 2019. This was also a ‘normal study’ and in particular, ‘left superficial radial response was normal’.
Mr Mabbett said he returned to work the day after the injury but was only able to perform light duties and he had to cease work after a week or so. He has not worked from that time to the present.
I asked Mr Mabbett if surgery had been helpful. He replied ‘yes and no’. He said prior to the surgery he had not been able to open the fingers of the left hand and he noticed more movement immediately after the operation. He said there was no improvement in pre-operative ‘burning and numbness’ which he felt had been present from just distal to the penetrating injury to the webspace between the left thumb and index finger.
Mr Mabbett originally came from Western Australia and returned there at Christmas 2019… He said he spent his time trying to write with his non-dominant right hand and performing exercises with his left hand. He tried to help his parents around their house.”
Present symptoms were noted as follows:
“Mr Mabbett told me he had ‘no strength to grab things’ with his left hand. He said he couldn’t flex the fingers of the left hand and could only close them by using his right hand to do so.
He said now he could not stretch out the left arm because if he tried to do so he would develop ‘burning’ from the left elbow down to the hand and this would be followed by ‘pins and needles’. Symptoms could last for ten minutes.
I specifically asked him if he had altered sensation in the original area of supposed sensory loss and he said there were ‘pins and needles’ from the region of the injury down along the radial aspect of the left wrist to the junction of the web space between the left thumb and index finger. He said that from time to time there could also be ‘burning’ in that area. This would be unprovoked and would usually last for a number of minutes.
Mr Mabbett said he took Lyrica 75mgs at night to help with sleep.
He said he occasionally also used Panadol and Nurofen.”
Findings on physical examination were reported as follows:
“There were no obvious dystrophic features in the left hand compared to the right.
Right upper limb movement and power were normal.
When Mr Mabbett tried to abduct his left arm to 70° he felt ‘burning’ from just distal to the left elbow down into the hand.
Mr Mabbett could not fully flex or extend his left elbow because attempts to do so also produced ‘burning’ from just distal to the left elbow down into the left hand.
Mr Mabbett could make only minimal flexion and extension movements of the left wrist because attempts to do so caused ‘burning’.
Mr Mabbett was able to almost fully extend the fingers of the left hand.
Mr Mabbett could not flex the left thumb at all and there was reduced flexion at the left index and middle fingers but almost full flexion at the left ring and little fingers when he was asked to make a fist. Attempted movement caused ‘burning’.
I could not sensibly test power of the left upper limb given these findings but there was no muscle atrophy.
Upper limb deep tendon reflexes were symmetrically depressed or absent.
Two-point discrimination was easily perceived at 5mm separation over the pads of the right index and little fingers but he had no idea about proprioception on those fingers on the left hand. There was general blunting of pinprick involving the distal two-thirds of the left forearm and all of the hand except for a strip of preserved pinprick sensation along the medial aspect of the left forearm.”
In summarising the injuries and diagnoses, the MA said:
“Doctors at the Fairfield District Medical Centre documented no sensory deficit in the immediate aftermath of the penetrating injury by a nail on 10 April 2018.
In contrast, at initial consultation on 11 May 2018, Professor Gumley felt there was sensitivity and diminished sensibility in the territory of the left superficial radial nerve.
According to the medicolegal report of 28 August 2019, Professor Gumley stated that at surgery on 29 June 2018 there was ‘evidence of a partial injury or division to the radial sensory nerve at the left wrist with three vesicles demonstrating exposed endoneurium’. Microsurgical repair was undertaken.
Mr Mabbett subsequently complained of more extensive ‘burning’ in the left forearm and hand with restricted movement of the whole of the left upper limb.
I note there have been variable findings on different physical examinations since surgery.
It is interesting that at no stage prior to surgery did Professor Gumley talk about restricted movement of the left hand or wrist.
Nerve conduction studies undertaken on two occasions following surgery showed no abnormality and particularly no reduction in amplitude of the left superficial radial nerve compared to the right.
Examination here today showed marked limitation of movement at the left shoulder, elbow, wrist and the fingers of the left hand as a consequence of the ‘burning sensation’ which extended throughout the distal two-thirds of the left forearm and hand at the time of examination.
No anatomical basis for the clinical findings were apparent.
Having made this point, I accept that Professor Gumley’s surgery did result in surgical ‘injury’ to the left superficial radial nerve and I would give Mr Mabbett the benefit of the doubt that following surgery he has had some altered sensation from the level of the penetrating nail injury down to the webspace between the left thumb and index finger.”
The MA added: “As stated above, I note there have been distinct inconsistencies in physical findings at the time of examination by various doctors since the injury.”
The MA explained his reasons for his assessment as follows:
“I accept that at least at the time of surgery, there was an injury to the left superficial radial nerve.
As per the Guidelines, I began assessment of impairment of the left superficial radial nerve using AMA5, Table 16.15, p492. There is a maximum 5% upper extremity deficit for sensory loss in the territory of the left radial nerve.
Clinical assessment of any possible sensory loss was extremely difficult in this case because of the non-anatomical sensory findings and the unexplained limitation of left upper limb movement. I also had to take into account the normality of left radial sensory conduction on two nerve conduction studies. There can be pain arising from injury to the left radial nerve even in the presence of normal nerve conduction studies and Professor Gumley did have to undertake neurolysis of the left superficial radial nerve.
Taking all this into account and using AMA5, Table 16.10, p482, I thought there was abnormal sensation with severe pain that prevented all activity. I awarded 100% sensory deficit due to abnormal sensations and severe pain preventing activity.
100% of 5% is 5%.
Using AMA5, Table 16.3, p439, I noted that 5% upper extremity impairment equated to 3% whole person impairment.
I have therefore generously suggested that Mr Mabbett has 3% whole person impairment as a consequence of the penetrating injury and surgery to the left superficial radial nerve.”
The MA then turned to consider the other medical opinions and said:
“I strongly disagree with the view of Professor Gumley that there was 37% whole person impairment and I say this because Professor Gumley’s findings have not been supported by any anatomical basis for the stated impairment.
I agree with Dr Machart (orthopaedic surgeon) who stated in his report of 28 November 2019 that ‘the extent of the reported symptoms now is in excess of the objectively defined pathology’.
My assessment of whole person impairment due to the left superficial radial nerve trauma was in agreement with that of Dr O'Sullivan (neurologist) who performed a video medicolegal examination and report on 8 February 2022 and felt there was 3% whole person impairment.”
The appellant makes the following submissions:
(a) The MA takes a history of the appellant worker’s restricted range of motion (as noted by other doctors).
(b) On examination, the MA records a restricted range of motion in:
(i)abducting the left arm;
(ii)flexing or extending his left elbow;
(iii)flexing or extending his left wrist;
(iv)extending the fingers of his left hand, and
(v)flexing the fingers on his left hand.
(c) The MA summarises: ‘examination here today showed marked limitation of movement at the left shoulder, elbow, wrist and the fingers of the left hand as a consequence of the ‘burning sensation’ which extended throughout the distal two-thirds of the left forearm and hand at the time of examination.
(d) He states ‘No anatomical basis for the clinical findings were apparent’, and continues to conclude that the surgery performed by Dr Gumley resulted in an injury to the left superficial radial nerve – explaining the altered sensation, and justifying the assessment of impairment under section 16.5 of the AMA 5.
(e) The MA has not, however, considered any explanation of the restricted range of motion separate to any peripheral nerve disorder – in particular, the possibility that the restricted range of motion arises from the cubital tunnel syndrome, as assessed by A/Prof Gumley.
(f) The MA’s suggestion that A/Prof Gumley’s impairment assessment is ‘not supported by any anatomical basis’ is incorrect.
(g) In his medico-legal report dated 28 August 2019, A/Prof Gumley records a restricted range of motion in the left upper extremity, and explains that his physical findings are perhaps consistent with ‘secondary cubital tunnel syndrome related to prolonged elbow flexion and positioning following his injury’. (Emphasis added.)
(h) Part 1.9 of the Guidelines requires the MA to ‘use the method that yields the highest degree of permanent impairment’, where there is more than one method that can be used.
(i) The MA ought to have given consideration to the appellant worker’s range of motion impairment in addition to the sensory impairment found, by reference to the cubital tunnel syndrome.
(j) In his report of 8 February 2022, Dr Dudley O’Sullivan for the insurer was unable to ‘substantiate that there would be any impairment with regard to the range of motion of his left elbow, his left wrist, fingers and thumb when [he] made the assessment via video’.
(k) He does not suggest that the appellant worker was not experiencing a restricted range of motion, just that he could not substantiate the assessment made ‘via video’. It is reasonable therefore to conclude that the audio-visual platform restricted Dr O’Sullivan’s ability to assess any impairment of our client’s range of motion.
(l) The MA had the benefit of an in person assessment, and was able to identify a restricted range of motion on examination. The MA should, therefore, have been capable of confirming the cubital tunnel syndrome diagnosis and considering whether this was the cause of the Appellant Worker’s impaired range of motion.
To begin with, we note that Mr Mabbett apparently had multiple nerve conduction studies, but none of those studies have been included in the documentation before us. Dr O’Sullivan referred to a total of four nerve conduction studies. The results of the two studies provided are clear evidence regarding the absence of a significant ulnar nerve lesion.
Having said that, the MA clearly noted those studies in his history taking, noting in particular that “Professor Gumley arranged upper limb nerve conduction studies which were undertaken at Macquarie Neurology on 8 October 2018. The study was normal and ‘in summary, there is no evidence of median, ulnar or radial neuropathy’.”
He also referred to “A further nerve conduction study undertaken in Western Australia by Dr Knezevic, neurologist, on 6 December 2019. This was also a ‘normal study’ and in particular, ‘left superficial radial response was normal’.”
There can be many causes for ulnar nerve dysfunction. As we understand the appellant’s submissions, it is suggested that the cubital tunnel syndrome diagnosis was the cause of Mr Mabbett’s impaired range of motion.
The MA clearly considered the potential diagnosis of cubital tunnel syndrome, but having regard to his findings on examination, particularly the marked limitation of movement in the whole left upper extremity, and all the evidence before him, he concluded that there was no anatomical basis for those findings.
The MA clearly explained his reasons for his assessment when he said:
“Having made this point, I accept that Professor Gumley’s surgery did result in surgical ‘injury’ to the left superficial radial nerve and I would give Mr Mabbett the benefit of the doubt that following surgery he has had some altered sensation from the level of the penetrating nail injury down to the webspace between the left thumb and index finger.”
The MA considered all potential diagnoses but also commented upon the “distinct inconsistencies in physical findings at the time of examination by various doctors since the injury.”
Although not bound by other medical opinions, we note that the MA’s assessment was consistent with the opinions of both Dr Machart and Dr O’Sullivan. We also add that there was no concern expressed by Dr O’Sullivan as to any difficulties he experienced in his video assessment, which we would have expected were that the case.
The high assessment provided by Dr Gumley was based on restricted range of motion which was unsupported by the imaging and findings on examination by both the MA and the other specialists we have mentioned.
The appellant’s submission that the MA failed to consider whether Mr Mabbett’s restricted range of motion could “possibly” arise from the cubital tunnel syndrome is without foundation given all the evidence to which we have referred.
Chapter 1.6 of the Guidelines sets out the principles of assessment. The importance of the exercise of clinical judgment by the MA in the process of assessment was reported by the Supreme Court in Glenn William Parker vSelect Civil Pty Limited [2018] NSWSC 140:
“In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 where it stated at [33]: ‘the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face…”
For these reasons, we do not accept that the MA erred in his assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 September 2022 should be confirmed.
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