Marqus v Sky High Contracting Pty Ltd
[2023] NSWPICMP 608
•23 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Marqus v Sky High Contracting Pty Ltd [2023] NSWPICMP 608 |
APPELLANT: | Nahi Marqus |
RESPONDENT: | Sky High Contracting Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 23 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant worker assessed as having 0% whole person impairment for injury to the left shoulder and cervical spine; findings of inconsistent presentation by the worker; consideration and application of clause 1.36 of the Guidelines (inconsistent presentation); whether adequate reasons provided by Medical Assessor (MA) and whether the worker was afforded procedural fairness during examination; no demonstrable error or assessment made on the basis of incorrect criteria by the MA; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 September 2023 the appellant, Nahi Marqus, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 August 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 (the 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 worker, Nahi Marqus, was working in the course of his employment as a formworker with the respondent employer, Sky High Contracting Pty Ltd, on 7 April 2020 when he lost his balance when moving a screen and fell from the first floor landing onto the left side of his body. He sustained an injury to his neck and left shoulder.
The appellant was taken by car to Westmead Hospital and understands that he sustained a dislocation of the left acromioclavicular joint. His left arm was put in a sling and he returned home.
The appellant underwent a MRI scan of the left shoulder on 24 April 2020 which reported evidence of recent injury to the acromioclavicular joint with fluid around the lateral third of the clavicle entering the acromioclavicular joint. No fracture was identified.
The appellant was referred to Dr Low, shoulder, knee and trauma surgeon. In a report dated 19 January 2022, Dr Low wrote that the MRI scan was unclear and he could not identify the precise cause of the appellant’s persistent shoulder pain. Dr Low arranged for a further MRI scan to be performed on the left shoulder.
That further MRI scan of the left shoulder was performed on 25 January 2022. The report from that scan identifies mild subscapularis and supraspinatus tendinosis with mild subdeltoid bursitis.
There is no further report from Dr Low in the material before the Personal Injury Commission.
In a statement dated 16 June 2023, the appellant states that he has “ongoing problematic symptoms with my neck, shoulder and arm on the left-hand side”.
The appellant made a claim for 17% whole person impairment (WPI) as a result of the injury sustained on 7 April 2020 which is based upon an assessment made by Dr Bodel, orthopaedic surgeon, in a report dated 6 October 2022 of 11% WPI of the left shoulder and 7% WPI of the cervical spine.
Dr Bodel noted significant prominence of the outer end of the clavicle in the region of the acromioclavicular joint on the left side. He considered there was clinical evidence of an acromioclavicular joint Grade III dislocation. Dr Bodel also found restricted range of shoulder movement on the left side. The assessment of 11% WPI of the left shoulder was based on 10% impairment of the left upper extremity due to restricted range of motion and 19% impairment of the left upper extremity due to joint impairment.
Dr Bodel found asymmetry of movement and guarding of the neck and placed the appellant in DRE Cervical Category II (being 5% WPI) with a further 2% WPI for the effects of the injury to the cervical spine upon the appellant’s Activities of Daily Living.
Dr Y K Lee, orthopaedic surgeon, provided a report at the request of the respondent dated 28 March 2023.
Dr Lee found that there was no tenderness in the cervical spine, and he could not test for muscle power and reflexes because the appellant complained of too much pain. Dr Lee found tenderness at the suprascapular and thoracic outlet region of the left shoulder, but he states that he could not test the range of movement of the left shoulder because the appellant refused to move his arms because of severe pain.
Dr Lee concluded that the appellant seemed not to be having proper treatment because of his poor command of English. Dr Lee suspected that the appellant suffered from a brachial plexus injury resulting in thoracic outlet syndrome and recommended that the appellant see a neurologist to exclude this particular injury.
Dr Lee concluded that the appellant had not reached maximum medical improvement because his left upper extremity symptoms were fluctuating and the appellant was much worse when Dr Lee saw him in March 2023 compared to the consultation which the appellant had with Dr Bodel in October 2022.
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 not necessary for the appellant to undergo a further medical examination because, for the reasons explained below, it has found that the Medical Assessor assessed the appellant’s permanent impairment based on correct criteria and the MAC did not contain a demonstrable error.
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.
Medical Assessment Certificate
The Medical Assessor records that the appellant said he was unable to undress himself and asked the Medical Assessor to do it for him. The Medical Assessor declined this request and offered to the appellant that he return on another day with his mother so that she could undress him. The Medical Assessor writes that the appellant then proceeded to undress himself very slowly and keeping his left arm purposefully and continually by his side.
The Medical Assessor found that the appellant was unable to affect any active movement in any joint of his left upper extremity from the left glenohumeral joint to the joints of the fingers and thumb. The Medical Assessor writes that any attempted passive range of motion assessment which he conducted brought forth complaints of severe pain by the appellant. The Medical Assessor concluded that these reactions were consistent with severe allodynia.
The Medical Assessor found both of the appellant’s acromioclavicular joints to be of the same shape and size. He found both acromioclavicular joints to be intact and stable on palpation.
The Medical Assessor found that active range of motion of the appellant’s cervical spine was grossly restricted towards the left side but normal to the right side. He found that during the informal part of the consultation that the appellant’s active neck movements were within the DRE Category I criteria.
The Medical Assessor writes:
“Today’s physical examination was severely curtailed by marked inconsistencies.
I drew his attention to the discrepancy that his cervical spine had a normal free flowing repetitive range of motion during the informal aspects of the examination as opposed to the marked restriction accompanying the formal requests for movement.
He told me that this was due to the fact that he was thinking about his left shoulder”.
The Medical Assessor has made an assessment of 0% WPI for both the left upper extremity and cervical spine.
The Medical Assessor states in his ‘Reasons for Assessment’ that there is a well-documented history of a traumatic injury affecting the appellant’s left shoulder and cervical spine, but there is no radiological evidence of an ongoing injury to the left acromioclavicular joint. He states that the MRI scan report of the left shoulder dated 24 April 2020 notes that the acromioclavicular joint remains intact and there is no internal derangement within the shoulder joint itself. He states that the fluid around the acromioclavicular joint is consistent with a strain and it would be reasonably expected for there to be a full and uneventful recovery within four weeks of the work injury.
The Medical Assessor also notes that there have been no radiological investigations of the cervical spine.
The Medical Assessor concludes:
“In essence, there is a marked disconnect between the symptoms as presented today, and the signs that are available to physical examination. That is to say, the extent of the injury complaints is not compatible with the available clinical evidence”.
The Medical Assessor states that he referred to paragraph 1.36 of the Guidelines which deals with inconsistent presentation. The Medical Assessor then writes:
“Based upon my training, education and experience, and the available medical evidence today, I am satisfied that the impairment of a certain magnitude, is compatible with a 0% WPI assessment for both the left shoulder and the cervical spine”.
The Medical Assessor also states that he did consider whether Complex Regional Pain Syndrome (CRPS) should apply in his assessment of impairment, but he could find no evidence of vaso motor, motor trophic or pseudomotor oedema changes which might be applied to that particular condition.
The Medical Assessor referred to the reports of Dr Low, Dr Bodel and Dr Lee. He states that he preferred his own physical examination findings, clinical assessment and conclusion over that of Dr Bodel.
Other parts of the MAC 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 have been considered by the Appeal Panel.
The appellant’s submissions
The appellant submits the following grounds of appeal can be found in the MAC:
(a) a demonstrable error by the failure to provide adequate reasons;
(b) a demonstrable error by the failure to afford procedural fairness, and/or
(c) incorrect criteria being applied by the failure to assess CRPS.
The appellant submits that the Medical Assessor has not explained the path of reasoning to the conclusions which he makes. The Medical Assessor states he preferred his own physical examination findings, clinical assessment and conclusion over that of Dr Bodel, but does not explain why.
The appellant submits that the Medical Assessor’s conclusion that there is no radiological evidence of ongoing injury is at complete odds with the MRI scans, the most recent of which shows rotator cuff tendinopathy and subdeltoid bursitis.
The appellant submits that he was not given any or any adequate opportunity to deal with issues and inconsistencies throughout the assessment. The MAC does not reveal that the Medical Assessor properly put the inconsistencies he found on his examination to the appellant.
The appellant submits that continuing with the assessment without addressing those inconsistencies has grave consequences for him because he has only one opportunity to be assessed by a Medical Assessor. The appellant submits that this amounts to a denial of procedural fairness and relies upon decisions of Jaksic v Insurance Australia trading as NRMA [2013] NSWSC 1141 (Jaksic) and Currie v Motor Accidents Authority of New South Wales [2013] NSWSC 83 (Currie).
The appellant submits that the Medical Assessor acted outside of his expertise in providing an opinion on CRPS.
The respondent’s submissions
The respondent submits that the findings and assessment of the Medical Assessor were soundly made and were open to him based upon his clinical examination of the appellant on the day which he presented for assessment, his clinical judgement, and the relevant history and medical evidence before him.
The appellant submits that the Medical Assessor has set out a path of reasoning to the extent that it satisfies the test in Wingfoot Australia Partners v Kocak [2013] HCA 43 (Kocak), which has been applied to medical assessments under the New South Wales workers compensation legislation.
The respondent submits that the Medical Assessor had regard to the MRI scans and it was open to conclude that there is no radiological evidence of any ongoing injury to the left acromioclavicular joint.
The respondent submits that the Medical Assessor correctly applied paragraph 1.36 of the Guidelines which deals with inconsistent presentation.
The respondent submits that the Medical Assessor did question the appellant about inconsistencies. In the alternative, it submits that whether the appellant was alerted to inconsistencies on examination does not affect the ultimate assessment.
The respondent also submits that the principles in Jaksic with respect to procedural fairness apply to motor accidents legislation and not to assessments under workers compensation legislation.
The respondent submits that is open to the Medical Assessor to consider the diagnosis of CRPS, but that ultimately the Medical Assessor’s views on CRPS had no bearing on the outcome of the assessment of WPI.
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 Medical Assessor found that the appellant was unable to affect any active movement in any joint of his left upper extremity from the left glenohumeral joint to the joints of the fingers and thumb. The Panel considers that there are very few neurological or musculoskeletal conditions, such as either a brain or spinal injury or a brachial plexus lesion on the left side, that would cause the extensive loss of range of movement found on examination by the Medical Assessor. There is no suggestion of any such conditions in the medical material which has been provided for this assessment.
The presentation of the appellant to the Medical Assessor is in marked contrast to findings made by the appellant’s physiotherapist, Roger Berbari, in clinical notes in the months following the work injury. Mr Berbari records on 5 May 2020, which is less than a month after the injury, that the appellant had 100 degrees of shoulder flexion and full range of movement of the elbow.
Mr Berbari records just nine days later on 14 May 2020 that the appellant has 180 degrees of movement of the shoulder, which is a full range of movement for the shoulder. Dr Sadek records on the same day that the appellant “is keen to go back on pre-injury duties trial” and “he is better, less pain and ROM left shoulder is near mormal”.
The Panel therefore considers that the Medical Assessor correctly identified the appellant as having an inconsistent presentation. Clause 1.36 of the Guidelines quotes from page 19 of AMA 5 as follows:
“‘….The assessor must use the entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observational test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing’. This paragraph applies to inconsistent presentation only”.
The Panel considers that the Medical Assessor has properly described and explained the modification in his assessment of WPI in response to the inconsistent presentation of the appellant which has led to assessments of 0% WPI for both the left upper extremity and cervical spine.
In regard to the left upper extremity, the Medical Assessor found that both acromioclavicular joints were intact and stable to passive assessment. The Medical Assessor observed no evidence of wasting or asymmetry of the shoulder girdle muscles when he viewed the appellant from behind.
The Medical Assessor views the MRI scan report of the left shoulder dated 24 April 2020 and notes that the acromioclavicular joint remains intact and there is no internal derangement within the shoulder joint itself. He also concludes from the report that fluid around the acromioclavicular joint is consistent with a strain from which it would be reasonably expected that there to be a full and uneventful recovery within four weeks of the work injury. Although not specifically referred to by the Medical Assessor, this conclusion is consistent with the contemporaneous clinical notes for treatment of the left shoulder in the weeks following the injury.
The Panel therefore considers that the Medical Assessor has formed a proper basis for, and has properly explained, his assessment of 0% WPI of the left shoulder and rejects the submission made by the appellant that the Medical Assessor has not explained his path of reasoning.
The Panel also considers that the reports of mild subscapularis and supraspinatus tendinosis with mild subdeltoid bursitis in the MRI scan report dated 25 January 2022 involve mild pathology which have no impact on the assessment of WPI made by the Medical Assessor. Furthermore, there is no medical evidence which links that reported pathology to an otherwise intact acromioclavicular joint. The Panel therefore rejects the submission made by the appellant that the Medical Assessor’s conclusion that there is no radiological evidence of ongoing injury is at complete odds with the MRI scans.
In regard to the cervical spine, the Medical Assessor found on examination that active range of motion of the appellant’s cervical spine was grossly restricted towards the left side but observed during the informal part of the consultation that the appellant’s active neck movements were within the DRE Category I criteria. The Panel considers that the Medical Assessor has given proper consideration to these inconsistencies and the available medical evidence in reaching the conclusion that the extent of the appellant’s complaints are not compatible with the available clinical evidence and the appellant can be assessed as having 0% WPI of the cervical spine.
The High Court in Kocak (French CJ, Crennan, Bell, Gaegler and Keane JJ agreeing) said at [47] of the function of a Medical Panel:
“….is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The Panel concludes that the Medical Assessor has applied his own medical experience and expertise in considering the inconsistencies in the appellant’s presentation, the radiological evidence made available to him, and the opinions of Dr Bodel and Dr Lee, in the assessments which he has made of permanent impairment.
The Panel rejects the appellant’s submission that an alleged failure to allow him to respond to inconsistencies found by the Medical Assessor during the assessment amounts to a failure to afford procedural fairness to the applicant. The decisions of Jaksic and Currie which have been referred to in the appellant’s submissions relate to guidelines for permanent impairment for motor accidents which occurred between 5 October 1999 and 30 November 2017. Those guidelines specifically require that “inconsistencies must be brought to the injured person’s attention” (clause 1.41 of the Motor Accident Permanent Impairment Guidelines). There is no similar provision in the Guidelines for the assessment of permanent impairment in workers compensation claims.
The Medical Assessor can consider whether there are other conditions which might be the cause of symptoms which a worker presents with. The Medical Assessor gave consideration to whether the appellant has suffered CRPS because of observations he made on examination of the appellant of marked allodynia. However, there is a “very specific and prescriptive criteria for CRPS” (Fagan J in Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 at [5]) and the Medical Assessor found that there were no other signs and symptoms for CRPS which are set out in Chapter 17 of the Guidelines for there to be a finding that the appellant has CRPS.
The Panel does not find that the assessment was made on the basis of incorrect criteria or that the MAC contains a demonstrable error. The MAC issued on 11 August 2023 is confirmed.
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