Markovic v Boss Civil (Aust) Pty Ltd
[2021] NSWPICMP 81
•1 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Markovic v Boss Civil (Aust) Pty Ltd [2021] NSWPICMP 81 |
| APPELLANT: | Vinko Markovic |
| RESPONDENT: | Boss Civil (Aust) Pty Ltd |
| APPEAL PANEL: | Member Deborah Moore Dr Mark Burns |
| Dr J Brian Stephenson | |
| DATE OF DECISION: | 1 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant referred to Medical Assessor (MA) for assessment of cervical spine and both upper extremities; appellant challenged the assessment by the MA of 0% WPI for the cervical spine on the basis that the MA failed to apply the correct criteria in respect of his assessment of the cervical spine; Panel agreed with the MA who found no clinical features to support an assessment of DRE Category II; he looked at the range of motion, and also said that there were no symptoms in the upper extremities that would emanate from the cervical spine; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 February 2021 Vinko Markovic lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 January 2021.
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 although one was requested, no reasons were given as to why this was necessary. Having carefully considered all of the evidence, we are satisfied that we have sufficient evidence before us to enable us to determine the 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 in two respects, namely in failing to disclose his precise measurements regarding the active range of movement in the cervical spine, and in failing to apply the correct criteria in respect of his assessment of the cervical spine.
There is no challenge to the assessments with respect to the upper extremities.
In reply, 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 respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of the right upper extremity (shoulder), left upper extremity (shoulder) and cervical spine resulting from an injury on 13 January 2016.
The MA noted that the appellant had been employed by the respondent as a formworker and carpenter for a number of years and sustained the injuries as a result of the nature and conditions of his employment.
He then documented his treatment, past and present, the results of various investigations, and the effects of his injuries on his activities of daily living.
As regards current symptoms, the MA noted: “Mr Markovic continues to describe discomfort in his posterior cervical neck which he believes is separate from his [shoulders]…”
Findings on examination, relevant to the issue in dispute were noted as follows:
“On examination of the cervical spine, there is no palpable evidence of paravertebral muscle spasm of guarding. He can demonstrate a symmetrical active range of motion to two-thirds of normal range in all planes including flexion and extension and lateral flexion and rotation to the right and left. Mr Markovic points to the posterior cervical neck as the site of discomfort on terminal range.”
After detailing and commenting on the investigations he had, the MA summarised the injuries and diagnoses, commenting that “Mr Markovic was most helpful at the time of today’s physical examination and history taking.”
The MA assessed 0% WPI in respect of the cervical spine, adding:
“At the time of today’s assessment, there is a symmetrical active loss of range of motion of the cervical spine in all planes, with no palpable evidence of paravertebral muscle spasm of guarding. There are no symptoms in the upper extremities that would emanate from the cervical spine. There is no loss or asymmetry of reflexes or evidence of muscle weakness or reproducible sensory loss that can be anatomically localised to an appropriate spinal nerve distribution. There is no asymmetrical muscle wasting that cannot be explained by the applicant’s right-handedness. There are imaging studies that are consistent with the clinical symptom of cervical neck pain.
The definition of radiculopathy as set out in Item 4.27 of the current guidelines is not met, with this definition requiring two or more of a list of clinical signs to be present. Therefore…the applicant demonstrates a DRE Cervical Spine Impairment Category 1- 0% WPI…”
The MA then turned to consider the other medical opinions, stating:
“I read with interest the report of Dr Robert Breit…He noted that there was not neurological impairment of the upper extremities. He noted some asymmetry of cervical neck range of motion, but did comment on the ability of Mr Markovic to rotate his head without difficulty in both directions when looking around the room when exiting his surgery. ..
I reviewed a report prepared by Dr James Bodel…He noted an asymmetrical range of motion of the cervical neck but no neurological impairment in the upper extremities on the right or left side…”
Dealing with the first ground of appeal, Chapter 4.13 of the Guidelines specifically states that “the range-of-motion (ROM) method is not used.” Chapter 4.17 states:
“The preferred method for recording ROM is as a fraction or percentage of the range or loss of the range. For example, either ‘cervical movement was one half (or 50%) of the normal range of motion’ or ‘there was a loss of one half (or 50%) of the normal range of movement of the cervical spine.’”
In this case, the MA recorded: “He can demonstrate a symmetrical active range of motion to two-thirds of normal range in all planes including flexion and extension and lateral flexion and rotation to the right and left” consistent with the requirements of the Guidelines referred to above.
As regards the second ground of appeal, the appellant submits that “his injury, history and clinical presentation should have been rated under DRE Category 2 rather than DRE 1.”
The appellant concedes that:
“DRE 2 is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE 2 and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement.”
An MA is required to make an assessment at the time of the examination.
In this case, the MA found no clinical features to support an assessment of DRE Category II. He looked at the range of motion, noting that “there is a symmetrical active loss of range of motion of the cervical spine in all planes.” He also said: “There are no symptoms in the upper extremities that would emanate from the cervical spine.”
In short, the assessment by the MA on the day of his examination was in our view entirely consistent with an impairment rating of DRE Category I.
It is interesting that Dr Breit’s conclusion of DRE II is inconsistent both with his clinical examination and his observations of the appellant’s range of neck movement when he was leaving Dr Breit’s surgery.
Dr Bodel observed some muscle guarding at the time of his assessment on 10 July 2020, which was clearly not present at the time the appellant was assessed by the MA. Dr Bodel also observed “a slight restriction of neck flexion, extension and rotation in all directions…” consistent with DRE I.
The task of an MA is to assess impairment, not symptoms or disability, and in a case such as this, that assessment is most properly arrived at by reference to the range of motion of the cervical spine in all planes demonstrated on examination.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 January 2021 should be confirmed.
0