Marneni v Programmed Skilled Workforce Ltd
[2022] NSWPICMP 405
•17 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Marneni v Programmed Skilled Workforce Ltd [2022] NSWPICMP 405 |
| APPELLANT: | Sowjanya Marneni |
| RESPONDENT: | Programmed Skilled Workforce Pty Ltd |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 17 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - The appellant appealed the 0% whole person impairment (WPI) assessment; Medical Assessor assessed via Zoom; Panel wished to re-examine but impossible because appellant was in India and couldn’t return because she didn’t have a visa; Panel determined only way to proceed was on all the evidence before us; Panel satisfied appellant had genuine complaints; Held – Medical Assessment Certificate revoked and 14% WPI assessed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 June 2022 Sowjanya Marneni (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 May 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).
RELEVANT FACTUAL BACKGROUND
At our preliminary assessment on 11 August 2022 the Panel concluded that the appellant should be re-examined. We stated then:
“The Panel has determined that the MA’s assessment via Zoom (because the appellant was in India) was inappropriate because it did not allow for a full examination. Physical examination is required in order to test, for example, reflexes, sensory loss, or motor power…
The Panel requests that the appellant’s solicitor provide information as to when the appellant is likely to return to Sydney so that an appointment can be arranged.
Until that information is provided, the Panel is unable to arrange a further examination.”
We were subsequently advised that the appellant was unable to return to Sydney apparently because she did not have a visa.
The Panel met again on 30 September 2022 to discuss the matter further.
The Panel concluded that a further Zoom assessment would not be of assistance for the reasons stated in our preliminary review.
Accordingly, the Panel has determined that we must simply proceed with the appeal on the basis of all the evidence we have before us.
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 failing to apply the Guidelines to assess whole person impairment, and failed to provide adequate reasons for his decision.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the left upper extremity (shoulder) and cervical spine resulting from an injury on
29 August 2019.The MA obtained the following history:
“Miss Marneni was loading pallets with boxes which were thought to weigh around 4kg each. She was doing this for a long period of time and as she did so, she experienced aches and pains in her neck (mostly on the left side) and her left shoulder complex.
She saw her doctor. She was able to continue working, although was on reduced duties.
Eventually she ceased this work, although was able to continue with her Master’s degree in Information Technology which she completed towards the end of 2019.
She returned to Hyderabad in India around August 2021.
She advised that she was continuing with her own Theraband exercises. It was difficult to establish how much of these she was doing, although I gained the impression that it would range between a couple times a week up to maybe five times a week. There does not appear to have been any further progression or modification of her home-based exercising since she left Australia.
She described that she had been reviewed by a local Orthopaedic Surgeon whom she last saw about two months ago. She was placed on medication, which she believes was a muscle relaxant. So far as I could establish there was no plan for further clinical review. She mentioned that it was quite difficult to get in to see specialists due to the delay caused by the COVID-19 pandemic. She confirmed that she had received double vaccinations for this but that boosters were generally not given where she now lives unless there are specific increased risk factors.”
The MA added:
“She continues with her own very modest stretch and exercise regime using Therabands and also takes muscle relaxants.
She advised that her condition now has increased since she left Australia. She has pain in her left shoulder complex with reduced movement and power.
This results in difficulty with sleep.
Her activities of daily living are restricted. She finds difficulty with dressing and also help with doing her hair. Her mother assists with these issues…
At present she is doing no work. She described that she did relatively little computer work since she feels that this hurts her left shoulder complex.
She is able to drive but does not drive at present. Her only hobby is reading. Physically she will do a little walking but only for about ten minutes at a time.
She does very limited housework. In discussing this with her at some length, it looks as though her mother does just about everything. Occasionally she will do a little lightweight shopping.”
Findings on physical examination were reported as follows:
“As advised, Ms Marneni was seen by Zoom. It had previously been requested that she should be attired in a singlet so that her shoulders could be easily observed, together with their associated movements. Ms Marneni had complied with this earlier request. She did not appear to be in obvious discomfort, although complained frequently of increasing aches and pains.
Cervical Spine. She described pain in the left side of the para-cervical musculature radiating down towards her left shoulder in the trapezius distribution. I asked her to cautiously press against this and she described that this caused mild tenderness. In pressing against the posterior part of her cervical spine with the fingers of her right hand, I gained the impression that this did not cause a significant focus of tenderness.
Movement of her head and neck was reduced. On forward flexion, extension and also lateral rotation to each side, her range of movement was grossly reduced to half of the normal range.
Rotation to each side was further reduced to one-third of the range. With no disrespect at all to Miss Marneni, who came across as a very decent young lady, I gained the impression that there was quite a lot of voluntary restriction in this demonstration of (lack of) movement.
Upper Limbs. It had also been requested that this Zoom assessment should be conducted over a laptop computer to facilitate the best possible observation (rather than the use of a mobile telephone). Again, Miss Marneni had complied with this request. Nevertheless, it was quite difficult to visualise all components of her upper limbs together. In altering position, it was possible to identify that she had a completely full and normal range of movement of the elbows, wrists, hands and all digits. She also confirmed that rubbing each hand with the digits of the other hand did not identify any specific neurological phenomenon. By inspection, there was no muscle wasting.
The shoulder movements were more difficult to demonstrate, although it is believed that with asking her to position herself with each side separately facing her computer, I believe a fairly reasonably accurate range of movement was identified. The six standard movements were employed. She was easily able to carry out a full range of movement with the right upper extremity.”
The MA then commented upon the radiological material stating:
“05/12/19 Cervical spine No significant features.
10/12/19 Left shoulder Mild sub-acromial bursitis.”
The MA then summarised the injuries and diagnoses as follows:
“Miss Marneni sustained what appears to have been a relatively mild muscular strain condition of her left trapezius muscle mass in late August 2019. This is getting on for the best part of three years ago.
Her clinical management has remained conservative. No significant pathological features were ever identified, either clinically or radiologically.
Her clinical management was conservative and progressed from standard physiotherapy procedures towards her own self-managed stretch and exercise regime using Therabands.
Despite the virtual complete absence of significant pathological features, her symptomatic condition had increased while she remained in Australia and before she returned to India. The reasons for this remain completely unclear, although at least four clinically trained personnel have identified psychological yellow flags and features of abnormal illness behaviour. She described that since leaving Australia her condition has deteriorated further although no reason for this has been identified.
At this assessment, although it was conducted by Zoom between Sydney and Hyderabad in India, her range of movement of her head and left shoulder complex was significantly reduced. In discussing her circumstances with her, there continuing treatment (including her self-managed regime) seems to be quite minimal and her activities of daily living almost non-existent with a very high level of dependency on her mother.”
As regards consistency of presentation, the MA said:
“This was difficult. Although Miss Marneni came across as a very pleasant young lady, this presentation was amply accompanied by extensive abnormal pain behaviour and she remains very pain and disability focused. Without wishing to be disrespectful (in any way at all to Miss Marneni) or to over-dramatise the situation, I gained the fairly strong impression that her current presentation and the way she conducts herself is verging on being almost tragic with what appears to be minimal determination to do almost anything to try to improve her condition, both physically and with respect to the future concerning a career and furthermore, with absolutely no increase at all in attempts to improve her activities of daily living with a very high dependency on her mother.”
The MA assessed 0% WPI in respect of the cervical spine and 0% WPI in respect of the left upper extremity (shoulder).
He added:
“Although Miss Marneni demonstrated reduced range of movement of her neck and her left shoulder in elevation at this Zoom assessment, I am completely unable to convince myself that this represents a realistic demonstration of pathology. If we consider the original injury, this was determined to be nothing more than a relatively mild muscle strain of the trapezius muscle complex on the left side. This anatomically extends from the lateral side of the neck down towards the shoulder complex. Therefore, it is understandable that there would be aches and pains associated with the neck and associated with the shoulder complex.
Nevertheless, detailed assessment by an Orthopaedic Surgeon (Dr Frank Machart on two occasions), a Neurologist (Dr Ross Mellick on two occasions) and a Sports Medicine Physician (Dr Ron Muratore) together with continuing assessment by Physiotherapist, Eugene Lee demonstrated essentially normal movement of the neck and left shoulder complex with the rather implausible development of increasing reduction in left shoulder movement many months later with no further history of deterioration of the left shoulder complex. Therefore, her reduced range of movement cannot be taken as representative of objectively defined pathology when such has never been significantly identified.”
In commenting upon the other medical opinions, the MA said:
“Specialist Orthopaedic Surgeon, Dr Frank Machart in his two reports of 07/04/20 and 13/07/21, Specialist Sports Medicine Physician, Dr Ron Muratore in his report of 03/02/20 and Specialist Neurologist, Dr Ross Mellick in his two reports of 07/04/20 and 12/10/20, together with the report of Physiotherapist, Eugene Lee of 28/01/20 have not defined any significant pathological feature of her cervical spine or her left shoulder complex. Abnormal illness behaviour has been identified with “yellow flags” and it has been succinctly described that her level of symptoms and disability are disproportionate (and extremely excessive) to the degree of injury and any objectively defined pathology.
Specialist Orthopaedic Surgeon, Dr James Bodel in his report of 22/01/21 calculates a whole person impairment of the cervical spine of 7% and of the left upper extremity also of 7%. Whilst Dr Bodel had the benefit of a full physical examination (which I did not), his impairment assessment is nevertheless based on restricted movement without identification of any significant pathological feature.”
The appellant makes the following submissions:
(a) despite the fact that there had been a binding determination of injury and there was evidence of abnormality in both body regions, the MA determined the issue of impairment in those body parts on the basis that there was no injury;
(b) the MA made a demonstrable error in concluding: “Her reduced range of movement could not be taken as representative of objectively defined pathology when such has never been significantly identified”;
(c) the MA failed to consider the evidence contained with the Application to Resolve a Dispute including radiology assessment with regards to the left shoulder which found pathological change which undermined his determination regarding causation (of which he was not required to make);
(d) a left shoulder ultrasound (30 September 2019) identified clear pathology which was not considered by the MA: “Moderate subdeltoid fluid collection, mild bursitis in the left sternoclavicular joint thickened of the left trapezius muscle indicating spam/ mycosis”;
(e) the MA failed to consider the applicant’s statement that she did not suffer from any pre- existing conditions or restrictions in her neck or left shoulder prior to sustaining her work related injury or that the work was repetitive in nature which resulted in the accepted injury;
(f) the MA failed to provide the foundation of his reasoning regarding (Dr Bodel’s opinion) which he rejected outright;
(g) the MA fell into error by not providing the basis for his reasoning regarding rejecting the reduction in the range of movement of the neck and left shoulder, and
(h) the MA does not say what if any inconsistency tests he used, in coming to his conclusions that the reduced range of movement was not reflective of the injury.
In brief submissions the respondent said that no errors had been made by the MA and that there were no grounds for appeal.
As indicated earlier, we are required to make a decision regarding impairment to the best of our ability.
The MA found no impairment in relation to the cervical spine and left upper extremity (shoulder), suggesting that in his opinion there was no objective pathology at either site, and that her signs and symptoms were not genuine. In reaching his conclusions he used the reports of Drs Machart, Muratore, and Mellick, as well as those of a physiotherapist, to support his opinion.
Those opinions suggested either abnormal illness behaviour or ‘yellow flags’.
The findings of the abovementioned specialists were in our opinion the opposite of ‘yellow flags’, noting the full range of cervical movement as well as left shoulder movement that was found on many occasions, which is the exact opposite of someone with abnormal illness behaviour.
In our view, Ms Marneni more likely than not has a genuine underlying problem which has simply not been identified, with symptoms being very suggestive of a brachial plexus lesion on the left side for the reasons suggested.
The most significant clinical finding would be sensory loss, and yet none of the doctors have clearly stated that sensory testing was in fact carried out.
It was not possible to make a diagnosis in the absence of a full clinical examination, which would include sensory testing. Given the Zoom assessment, this was not possible.
It is the opinion of the Appeal Panel that the only satisfactory way to reach a firm conclusion in this matter, would be for a re-examination to be carried out by one of the members of the Appeal Panel.
As this is not possible, and noting that it is to everyone’s advantage that this matter be settled, the Panel has reached the conclusion to the best of our ability, on the available evidence.
For the reasons suggested above, while it is certainly possible that there is abnormal illness behaviour present, in our opinion it is more likely than not, that Ms Marneni has genuine complaints, and that a firm diagnosis has simply not been achieved.
We have therefore accepted the figure of 14% WPI as suggested by Dr Bodel. This figure would reflect the extent of Ms Marneni’s symptoms and limitations if these were genuine.
As noted in the Guidelines, when there is doubt as to the correct DRE Category, it is suggested that the higher rating be given, that is, giving the injured worker the benefit of the doubt.
We are satisfied then that the assessment of Dr Bodel is a fair assessment of Ms Marneni’s impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 May 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W698/22 |
Applicant: | Sowjanya Marneni |
Respondent: | Programmed Skilled Workforce 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 Medical Assessor Tim Anderson 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) |
| 1. Left upper extremity (shoulder) | 29/08/19 | Chapter 2 | Figures 16-40, 16-43 & 16-46. Pages 476, 477 & 478 Table 16-3. Page 439 | 7% | Nil | 7% |
| 2. Cervical spine | 29/08/19 | Item 4.34 and Item 4.35 on Page 28 | Table 15-5 on Page 392 of AMA5. | 7% | Nil | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0