McCleod v Ready Workforce (A division of Chandler MacCleod) Pty Ltd
[2022] NSWPICMP 219
•17 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | McCleod v Ready Workforce (A division of Chandler MacCleod) Pty Ltd [2022] NSWPICMP 219 |
| APPELLANT: | David McCleod |
| RESPONDENT: | Ready Workforce (A division of Chandler MacCleod) Pty Ltd |
| APPEAL PANEL: | Member Jane Peacock Dr Roger Pillemer Dr Gregory McGroder |
| DATE OF DECISION: | 17 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Cervical Spine assessment; appellant alleged error in the assessment by the Medical Assessor (MA) of the cervical spine as DRE Category I; Appeal Panel found error and appellant re-examined; the assessment of the Appeal Panel was DRE Category II of the cervical spine based upon the criteria in AMA 5 at Page 392, table 15-5 namely; clinical history compatible with a specific injury and asymmetric loss of range of motion; this equates to 5% whole person impairment; there is no allowable additional impairment for ADLs noting that the MA has given ADLs for the lumbar spine; there is no deductible proportion; Held- Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 December 2021 Mr David McCleod (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr Ian Meakin, a MA, who issued a (lead) Medical Assessment Certificate (MAC) on 8 December 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (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.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel found that Dr Meakin had made a demonstrable error in the assessment of the cervical spine.
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.
Further medical examination
Dr Roger Pillemer of the Appeal Panel conducted an examination of the worker on 31 March 2022 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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.
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 matter was referred for medical assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
Date of injury: 28 April 2016
Body parts/systems referred: (a) Cervical spine
(b) Lumbar spine
(c) Left upper extremity (elbow)
(d) Right upper extremity (elbow)
(e) Digestive System (hernia)
Method of assessment: Whole Person Impairment”
Dr Meakin was nominated as the lead assessor with Dr Berry assessing the digestive system.
The MA Dr Meakin as lead assessor issued a MAC certifying as follows:
Name of Medical Assessor
Body Part or System
Date of Injury
Chapter, Page and Paragraph number in NSW workers compensation guidelines
Chapter, Page, Paragraph Figure and Table numbers in AMA5 Guides
% WPI
%WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality
Sub-total/s
% WPI (after any deductions in column 7)
Dr Ian L Meakin
Cervical Spine
28 April 2016
Item 4.27, and Chapter 4, Page 26 - 33
Table 15.5 AMA 5
0%
N/A
0%
Dr Ian L Meakin
Lumbar Spine
28 April 2016
Chapter 4, Pages 26 - 33
Table 15.3 AMA 5
11%
1/10(9.9%)
10%
Dr Ian L Meakin
Left Upper Extremity – Elbow
28 April 2016
Chapter 2 Pages 13 - 15
Chapter 2 of the Guidelines and AMA 5
0%
N/A
0%
Dr Ian L Meakin
Right Upper Extremity – Elbow
28 April 2016
Chapter 2 Pages 13 - 15
Chapter 2 of the Guidelines and AMA 5
0%
N/A
0%
Dr Neil A Berry
Digestive System - hernia
28 April 2016
Chapter 5, Page 33, Table 5.1
3%
N/A
3%
Total % WPI (the Combined Table values of all sub – totals)
13%
The worker appealed. The appeal was limited to a complaint about the assessment of the cervical spine.
In summary, the appellant submitted that the MA erred as follows:
· Finding 0% whole person impairment (WPI) for the cervical spine.
· Failing to have proper regard to the cervical pathology.
· Failing to have proper regard to the reports of Dr Patrick and Dr Sharp.
· Failing to have regard to and apply the criteria in DRE Cervical Category II of AMA 5.
In summary, the respondent submitted that the MA did not make an assessment on the basis of incorrect criteria and nor did he make a demonstrable error and that the MAC should be confirmed.
The Appeal Panel considered that an error had been made in respect of the assessment of the cervical spine because the MA did not properly apply the DRE II criteria for the assessment of the cervical spine.
The Appeal Panel considered that a re-examination was required and Dr Roger Pillemer an MA member of the Appeal Panel was requested to undertake a re-examination. In respect of the re-examination, Dr Pillemer reported to the Appeal Panel as follows:
“REPORT OF THE EXAMINATION BY MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Appellant: David McLEOD
Respondent: Ready Workforce (A Division of Chandler Macleod Pty Ltd)
Examination Conducted By: Roger Pillemer
Date of Examination: 31 March 2022
1. The workers medical history, where it differs from previous records
I read Mr McLeod the history as taken by Dr Meakin (MA) at the time of his consultation on 1 December 2021, and he was quite happy with the history as given.
2. Additional history since the original Medical Assessment Certificate was performed
The main concern for today’s consultation was in regard to Mr McLeod’s cervical spine and he informs me that he does have ongoing constant pain in his neck region, ranging between 4-9/10. At the present time the discomfort radiates to the right side of his jaw and for the past year or so he has been aware of pins and needles and numbness extending down to his right hand and into the fingers of his right hand. All the fingers seem to be involved but particularly the thumb and index finger.
Neck symptoms are described as being constantly present and are aggravated by driving or when he keeps his arms in front of his body for any length of time, or when he does the washing up and particularly with movements of his head and neck, especially rotating to the left. He does get some relief by applying heat and using an icepack, and having a cold shower.
Mr McLeod has had significant ongoing discomfort in his cervical region ever since his original injury in April 2016.
3. Findings on clinical examination
Mr McLeod is a tall, heavily built adult male with a significant increase in his body mass index, particularly centrally. He does have residual restriction of cervical movement with lateral rotation to the left being more restricted than to the right, and extension being moderately restricted today.
He does have a satisfactory range of shoulder movements, developing discomfort at 140° of elevation.
Reflexes were present and equal and good grip strength was present bilaterally.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr McLeod has not had any further investigations carried out since the MAC.”
The Appeal Panel adopts the report and findings of Dr Pillemer.
On the basis of these findings, the proper assessment of the cervical spine is DRE Category II noting the appellant’s asymmetry of movement which was pronounced. The appellant has a history of injury with the severe pain in his neck and restriction of movement.
The assessment of the Appeal Panel is DRE Category II of the cervical spine based upon the criteria in AMA 5 at Page 392, table 15-5 namely, clinical history compatible with a specific injury and asymmetric loss of range of motion. This equates to 5% WPI. There is no allowable additional impairment for ADLs noting that the MA has given ADLs for the lumbar spine. There is no deductible proportion.
The Appeal Panel has placed the appellant in DRE Category II for the reasons given. The Appeal Panel considers that it is important to point out that even based upon the MA’s own report and findings on examination, a finding of DRE II would have been the correct finding for the following reasons:
· The appellant suffered a significant injury falling from a height of five metres.
· He has continued to have significant ongoing problems with his cervical spine which is present almost constantly as acknowledged by the MA.
· The MA has indicated under the heading “Consistency of Presentation” that he believes that the appellant is suffering from symptoms described.
· On the MA’s examination findings, the appellant shows restriction of cervical range to three-quarters, which is significant, despite being symmetrical.
· As stated in the Guidelines “If an assessor is unable to distinguish between two DRE Categories, then the higher of these two categories should apply”.
· Most importantly, the MA has been misled by the criteria suggested in AMA 5 for DRE Category II of the cervical spine which notes (emphasis added): “Findings may include muscle guarding or spasm observed at the time of examination by a physician, asymmetric loss of range of motion or non-verifiable radicular complaints…” Because the MA suggested that he found none of these criteria, he elected to place the appellant in DRE Category I of the cervical spine, and as indicated, other factors need to be considered.
Accordingly the Appeal Panel will certify 5% WPI for the cervical spine as a result of injury on 28 April 2016 which, when combined with the impairment assessments for the other body parts not complained about on appeal, gives a total WPI of 18% as a result of injury on 28 April 2016.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 December 2021 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
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the lead Medical Assessment Certificate of Dr Meakin 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 NSW workers compensation guidelines | Chapter, Page, Paragraph Figure and Table numbers in AMA5 Guides | % WPI | %WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 7) | |
| Cervical Spine | 28 April 2016 | Item 4.27, and Chapter 4, Pages 26-33 | Table 15.5 AMA 5 | 5% | N/A | 5% | |
| Lumbar Spine | 28 April 2016 | Chapter 4, Pages 26-33 | Table 15.3 AMA 5 | 11% | 1/10(9.9%) | 10% | |
| Left Upper Extremity – Elbow | 28 April 2016 | Chapter 2 Pages 13-15 | Chapter 2 of the Guidelines and AMA 5 | 0% | N/A | 0% | |
| Right Upper Extremity – Elbow | 28 April 2016 | Chapter 2 Pages 13-15 | Chapter 2 of the Guidelines and AMA 5 | 0% | N/A | 0% | |
| Digestive System - hernia | 28 April 2016 | Chapter 5, Page 33, Table 5.1 | 3% | N/A | 3% | ||
| Total % WPI (the Combined Table values of all sub – totals) | 18% | ||||||
Jane Peacock
Member
Dr Roger Pillemer
Medical Assessor
Dr Gregory McGroder
Medical Assessor
17 May 2022
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