Mazoudier v Barclay Gardens Motor Inn (Deregistered)
[2021] NSWPICMP 94
•18 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mazoudier v Barclay Gardens Motor Inn (Deregistered) [2021] NSWPICMP 94 |
| APPELLANT: | Cheryl Ann Mazoudier |
| RESPONDENT: | Barclay Gardens Motor Inn (Deregistered) |
| APPEAL PANEL: | Member R J Perrignon Dr Drew Dixon Dr Mark Burns |
| DATE OF DECISION: | 18 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of whole person impairment (right upper extremity - shoulder); assessed on range of motion basis only; whether assessor erred in failing to assess also on the basis of arthroplasty, and to combine the two assessments; Held- MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Mazoudier, appeals from the Medical Assessment Certificate of Approved Medical Specialist Dr Gliksman, issued on 8 January 2021.
Ms Mazoudier injured her right shoulder on 1 October 1998. After other treatments proved ineffective, she came to reverse arthroplasty of the right shoulder on 22 October 2018 at the hands of orthopaedic surgeon Dr Mison.
The Registrar referred the worker for assessment of:
(a) permanent impairment of the right arm at or above the elbow, in accordance with the Table of Disabilities, and
(b) whole person impairment with respect to the right upper extremity (shoulder), for the purposes of a threshold dispute.
He referred other body parts for assessment as well, which are not the subject of appeal.
Dr Gliksman assessed:
(a) 40% loss of efficient use of the right arm at or above the elbow, in accordance with the Table of Disabilities, and
(b) 10% whole person impairment (right upper extremity - shoulder).
In assessing whole person impairment, Dr Gliksman relied only on restrictions in the range of movement of the right shoulder. He did not make any assessment by reference to the reverse arthroplasty of the right shoulder.
Ms Mazoudier says that he should have assessed by reference to range of motion and by reference to the reverse arthroplasty separately, and combined those assessments in accordance with section 16.7b of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th edition (AMA5) and section 2.14 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines). She appeals from his assessment of whole person impairment on that basis.
She does not allege error in respect of his assessment under the Table of Disabilities.
On 20 April 2021, the delegate was satisfied that demonstrable error was made out, and referred the matter to this Appeal Panel for determination.
PRELIMINARY REVIEW
On 8 June 2021, the Appeal Panel conducted a preliminary review of the original medical assessments in the absence of the parties and in accordance with the Guidelines. Though it identified error in the assessment of whole person impairment dated 8 January 2021, the error was capable of correction without further examination of the appellant.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions are summarised above.
In summary, the respondent employer submits that the Approved Medical Specialist noted that the appellant had come to reverse right shoulder arthroplasty without significant functional improvement, that he was not bound to adopt the same method of assessment as Dr Hopcroft (for the appellant) or Dr Machart (for the respondent), and that he relied on his own findings on examination and clinical experience as he was entitled to do.
REASONING OF THE APPROVED MEDICAL SPECIALIST
The Approved Medical Specialist examined the worker on 8 January 2021. He took a history at [4] of injury to the right shoulder on 1 October 1998, recorded current symptoms and treatment, and noted significant restrictions in terms of daily activities.
On examination of the right shoulder at [5], he noted surgical scarring and mild rotator cuff muscular wasting. He measured and recorded restricted range of movement in the right shoulder, worse than in the left.
At [6] he noted the contents of a significant number of relevant radiological reports, for the most part pertaining to the right shoulder.
At [7] he diagnosed:
‘significant injury to the right rotator cuff occurred as a direct result of the injury event occurring on 1 October 1998, requiring multiple invasive procedures when conservative treatments proved ineffective. This culminated in the procedure of right shoulder reverse arthroplasty, which has not resulted in a significant functional improvement.’
He considered that the condition of the left shoulder resulted from injury to the right shoulder, and denied the existence of any pre-existing condition.
At [10b], he gave the following reasons for his assessment of the right shoulder:
‘Whole Person Impairment Assessments are calculated by the ranges of motion (ROM) methodology contained within AMAV, as regulated by the WCC Guidelines (4th ed).
The right shoulder ROM yields 17% upper extremity impairment (UEI) which equates to 10% WPI.’
At [10c], he discussed the differences between his assessments and those of Dr Hopcroft and Dr Machart among others, but made no mention of the use of reverse arthroplasty as the basis for assessment.
FINDINGS AND REASONS
The sole issue is whether the Approved Medical Specialist was obliged to assess whole person impairment in respect of the right shoulder by reference to reverse arthroplasty, and to combine that with an assessment based on range of motion, as the appellant submits.
Section 2.14 of the Guidelines relevantly provides as follows - emphasis added.
“Most shoulder disorders with an abnormal range of movement are assessed according to AMA5 Section 16.4 ‘Evaluating abnormal motion’. ...
Rare cases of rotator cuff injury, where the loss of shoulder motion does not reflect the severity of the tear, and there is no associated pain, may be assessed according to AMA5 Section 16.8c ‘Strength evaluation’. Other specific shoulder disorders where the loss of shoulder motion does not reflect the severity of the disorder, associated with pain, should be assessed by comparison with other impairments that have similar effect(s) on upper limb function.
As noted in AMA5 Section 16.7b ‘Arthroplasty’, ‘In the presence of decreased motion, motion impairments are derived separately and combined with the arthroplasty impairment’. This includes those arthroplasties in AMA5 Table 16-27 designated as (isolated).
…”
The task of the Approved Medical Specialist was to assess the right upper extremity in accordance with the Guidelines. In the presence of reverse arthroplasty and decreased motion, section 2.14 required him to assess permanent impairment by reference to decreased range of motion, to make a separate assessment by reference to arthroplasty in accordance with AMA 5 Table 16-27, and to combine the impairments. This method was adopted by both Dr Hopcroft in his supplementary report of 5 May 2020, and Dr Machart in his report of 9 July 2020.
As indicated, the Approved Medical Specialist assessed the right shoulder by reference only to range of motion. The failure to assess by reference to arthroplasty, and to combine the two assessments, demonstrates error, requiring that the Medical Assessment Certificate be set aside. That is so, notwithstanding the fact that the Approved Medical Specialist was entitled to make findings on examination as he did, and to use his own clinical judgment.
Neither party alleges any error in Dr Gliksman’s measurements of range of motion. We are satisfied that they are correct.
AMA 5 Table 16-27 prescribes 24% upper extremity impairment (UEI) for an implant arthroplasty, and 30% UEI for a resection arthroplasty.
The appellant has come to an implant arthroplasty of the right shoulder. The appropriate assessment for that is 24% UEI in accordance with Table 16-27.
Combining that with the existing range of motion assessment of 17% UEI yields 37% UEI, which converts to 22% whole person impairment.
The Medical Assessment Certificate of Dr Gliksman, issued on 8 January 2021 with respect to the assessment of whole person impairment, is set aside and replaced with the attached Medical Assessment Certificate.
His Medical Assessment Certificate with respect to the assessment of permanent impairment under the Table of Disabilities, in respect of which no error is alleged, is confirmed.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Gliksman with respect to the assessment of whole person impairment and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| 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) |
| Right Upper | 01/10/98 | Chapter 2; | Chapter 16; | 22 | nil | 22 |
| Left Upper | 01/10/98 | Chapter 2; | Chapter 16; | 4 | nil | 4 |
| Scarring | 01/10/98 | Chapter 14; | 2 | nil | 2 | |
| Total % WPI (the Combined Table values of all sub-totals) | 27% | |||||
R J Perrignon
Member
Dr Drew Dixon
Medical Assessor
Dr Mark Burns
Medical Assessor
18 June 2021
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