Mercer v Kurumbul Pty Ltd
[2022] NSWPICMP 94
•22 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mercer v Kurumbul Pty Ltd [2022] NSWPICMP 94 |
| APPELLANT: | Allan James Mercer |
| RESPONDENT: | Kurumbul Pty Ltd |
| APPEAL PANEL: | Member Carolyn Rimmer Dr John Brian Stephenson Dr Gregory McGroder |
| DATE OF DECISION: | 22 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Assessment of cervical spine and upper extremities; appellant submitted that Medical Assessor (MA) failed to perform a proper examination and assessment of the left shoulder as the MA found that there was a chronic pain condition and inconsistent presentation; Held- Appeal Panel did not accept that there was no evidence available for a calculable impairment of the left shoulder; MA erred in not providing adequate reasons; worker re-examined, and Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 December 2021 Allan James Mercer (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Lewington, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 10 November 2021.
The respondent to the appeal is Kurumbul Pty Ltd (the respondent).
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· 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 reissued on 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
In these proceedings, the appellant is claiming lump sum compensation in respect of the right upper extremity, and cervical spine as a result of the injury on 11 July 2014 and in respect of a consequential condition to the left upper extremity (shoulder).
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated 15 July 2021, the matter was referred to the MA, Dr David Lewington, for assessment of whole person impairment (WPI) of the cervical spine and right upper extremity as a result of the injury on 11 July 2014.
The MA examined the appellant on 8 November 2021. He assessed 7% WPI of the cervical spine, 0% WPI of the left upper extremity and 2% of the right upper extremity. The Combined Total WPI was 9% as a result of the injury on 11 July 2014.
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.
The appellant requested that he be re-examined by a MA, who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the MAC contained a demonstrable error and there was insufficient evidence on which to make a determination.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) Supplementary statement of Allan James Mercer dated 7 December 2021.
The appellant sought to rely on this additional evidence on the basis that it related to the conduct of the MA during the examination on 8 November 2021 and the assessment provided by the MA in the MAC dated 10 November 2021.
The appellant submitted that the supplementary statement of Allan James Mercer was not available before the medical assessment and could not reasonably be obtained before as it relates directly to the assessment performed by the MA on 8 November 2021.
The respondent submitted the appellant’s supplementary statement dated 7 December 2021 did not fall within “additional relevant information” pursuant to S 327(3)(b) of the 1998 Actand should not be admitted into evidence.
The respondent argued that the supplementary statement of the appellant should not be admitted into evidence given the matters raised therein related to the way in which the MA carried out his examination, rather than information of a medical kind or which is directly related to the decision required to be made by the MA. In particular, the respondent disputed that there was any evidence to support the appellant’s assertion that the MA did not use a goniometer or inclinometer to assess range of motion in the upper extremities during his examination. Further, the MA’s physical findings in relation the left shoulder were recorded in the MAC, which confirmed that he examined this body part.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC 10798-04). In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
The issue concerning “additional relevant information” which is a separate ground of appeal under s 327(3)(b) was addressed by Hoeben J in Petrovic v BC Serv No 14 Pty Limited t/as Broadlex Cleaning Services [2007] NSW SC1156. Hoeben J held that a statutory declaration addressing the way in which an Approved Medical Specialist (AMS) carried out his examination was not “additional relevant information” as it was not information of a medical kind or which directly related to the decision made by the AMS. At [31], Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs327(3)(b).’
32. It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
Hoeben J did note that once the matter came before an Appeal Panel, the matter in the statutory declaration could be considered by the Appeal Panel.
The Appeal Panel accepted that the statement, in so far as it related to events that occurred in the examination by the MA, could not reasonably have been obtained before the MA’s assessment.
Although the statement of the appellant came within the literal definition of “fresh evidence” as referred to in s 328(3), the Appeal Panel decided to disregard that evidence since it was quite contrary to the purpose of the 1998 Act. The Appeal Panel does not understand the intention of the legislature to be that such criticisms of an MA ought to be admitted as fresh evidence. The Appeal Panel believes that the purpose of the legislation is to give some prima facie credence to the opinion of a MA in situations where he has examined the client and all the competing medical views. The system would not be able to operate properly if the MA’s view could be overturned merely because of some untested documentary evidence as to the events that occurred during the examination. Further, it should also be noted that the applicant’s evidence concerning the conduct of the MA during the examination on 8 November 2021 would have little, if any, probative value. The Appeal Panel decided that the statement of the applicant was not evidence of such probative value that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) the statement of Allan James Mercer dated 7 December 2021.
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 Stephenson of the Appeal Panel conducted an examination of the appellant worker on 30 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.
The appellant’s submissions include the following:
(a) the assessment was made on the basis of incorrect criteria in relation to the level of impairment of the left upper extremity;
(b) the MA failed to perform a proper examination to determine the appellant’s level of impairment due to the use of incorrect criteria and that constituted a demonstrable error;
(c) the conclusion reached by the MA in relation to the left upper extremity was at odds with his own findings upon examination as well as the available medical evidence;
(d) there is no dispute regarding the assessment of impairment level of the cervical spine assessed by the MA;
(e) when assessing impairment of the upper extremities that a MA must refer to chapter 16 of AMA 5. Specifically, range of motion (ROM), a goniometer or inclinometer must be used where clinically indicated as according to the Guidelines;
(f) at page 4, paragraph 7 of the MAC, the MA noted the diagnosis:
‘Soft tissue injury to the right shoulder on 11 July 2014 and associated bursitis/impingement with subsequent development of neck pain and left shoulder pain. Chronic pain syndrome’;
(g) at page 6, paragraph 1 of the MAC, the MA noted:
‘Clinically, I did not consider that range of movement was a valid parameter of impairment and was at odds with the demonstrable pathology and that the medical evidence appears insufficient to verify an impairment of such a large magnitude exists’;
(h) at page 7, paragraph 9 of the MAC, the MA noted: ‘There is no available evidence for a calculable impairment for the left shoulder’.
(i) the MA diagnosed the appellant as suffering from chronic pain syndrome which was outside of the parameters of the referral made by the Personal Injury Commission. The MA was asked to assess the appellant’s level of impairment as per the terms of the referral which stated the body parts referred were the cervical spine, left upper extremity and right upper extremity;
(j) in Sofija Necak v Lemhay Pty Ltd [2021] NSWWCCMA 23 at paragraph 34, the Medical Appeal Panel discussed the issue of how an AMS is to approach an assessment of a worker’s permanent impairment where there was inconsistency in a worker’s presentation as follows:
‘the Guidelines at [1.36] provide instruction to an AMS as to how to approach an assessment of the degree of a worker’s permanent impairment where there is inconsistency in a worker’s presentation. Simply put, an AMS must draw upon the totality of their clinical skill and judgement to provide an assessment of the degree of a worker’s permanent impairment where the worker’s presentation is inconsistent…’;
(k) at paragraph 35, the Medical Appeal Panel states:
‘Consequently, in the Appeal Panel’s view, the AMS has not applied the correct criteria to assess the degree of the appellant’s impairment from her injury. Furthermore, by simply not assessing any of the matters that were referred to the AMS for assessment, the AMS has made an error and consequently the MAC contains a demonstrable error’;
(l) where there was inconsistency in a worker’s presentation it was necessary for the MA to draw upon the totality of their clinical skill and judgement to provide an assessment of a worker’s permanent impairment on the evidence available. The MA has not provided an assessment of the appellant’s degree of permanent impairment in relation to the left shoulder;
(m) the MA was not asked to comment on whether the impairment could be assessed by way of reference to a chronic pain condition. He was asked to assess the impairment relating to the left shoulder. This constituted error and is a demonstrable error;
(n) the MA was provided with the available evidence including the reports of Dr Andrew Porteous and the report of Dr Vijay Panjratan. Whilst there was evidence to suggest that the appellant suffered from a history of chronic pain in the right shoulder, there was no dispute that his injuries to his right and left upper extremities resulted in a level of impairment;
(o) Clinical History of Development of Left Shoulder Pain – In the appellant’s statement at page 3 of the Application to Resolve a Dispute (ARD), paragraphs 29 to 32 set out the development of the appellant’s left shoulder injury as follows:
‘Following the injury and right shoulder surgery, I began to favour my left arm and left shoulder… After the incident, I was unable to sleep on my right-hand side due to my right shoulder injury and I was unable to sleep on my back as I would experience pressure and pain in my right shoulder. I would always sleep on my left-hand side. However, I would often wake up with a sore neck, sore left shoulder and sore left hip after sleeping on my left hand-side for an extended period of time.’
(p) at page 539 of the ARD, Dr Mozafari noted: ‘ L hip pressure pain, sleep on left side.’;
(q) at page 652 of the ARD, Dr John Christie noted:
‘I think his symptoms relate primarily to his shoulder and he may be getting some neck pain as a secondary effect from the altered posture that he has developed…’;
(r) this was supported by the reports of Dr Porteous and Dr Panjratan, who both provided WPI assessments of the left upper extremity. At page 11, paragraph 14, Dr Porteous noted: ‘ The chronic right shoulder pain restricts left shoulder movement. There is a 22% UEI of a 13% WPI on the right and a 12% UEI or a 7% on the left’. Dr Panjratan, in his report dated 19 December 2019, provided his assessment of the appellant’s level of impairment of the left upper extremity based on the range of motion which resulted in the appellant being assessed as suffering from 7% WPI according to Table 16.3, page 439 of the AMA 5. At page 14, paragraph 2, Dr Panjratan noted: ‘he Claimant’s left shoulder injury ‘results from’ a consequential condition. This is due to the right shoulder being rendered almost useless and reliance of the left shoulder’;
(s) the MA failed to assess the impairment relating to the left shoulder. This was a demonstrable error;
(t) due to the MA’s diagnosis of chronic pain syndrome, the MA failed to perform a proper examination of the appellant’s left upper extremity and that constituted a demonstrable error;
(u) at page 6, paragraph 13 of the MAC, the MA noted:
‘If, in spite of 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.’;
(v) as previously stated, the MA was provided with the medical evidence in the form of the reports of Dr Porteous and Dr Panjratan. The MA had sufficient evidence to verify that impairment existed and failed to perform the physical examination required to provide an assessment of the level impairment of the left upper extremity. The MA therefore relied on an incorrect criterion and the MAC contained a demonstrable error, and
(w) the Appeal Panel should issue a new MAC issued taking into account the appropriate ratings in accordance with chapter 16 of the AMA 5 so the MAC appropriately reflects the worker’s degree of impairment due to his work injuries.
The respondent’s submissions include the following:
(a) the respondent disputed that MA’s assessment was made on the basis of incorrect criteria and/or contained a demonstrable error;
(b) section 2.5 of the Guidelines, which relevantly provide:
‘… • If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Guidelines.
• If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.’
(c) given the inconsistencies in the appellant’s presentation upon examination as noted by the MA, it was open to the MA to refrain from using range of motion to assess impairment of the left upper extremity;
(d) section 1.36 of the Guidelines, which provides as follows: ‘AMA5 (p 19) states:
‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their 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 observation or 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.’;
(e) the MA’s assessment of nil impairment for the left shoulder was consistent with s 1.36 as the MA clearly identified and explained the evidentiary and clinical basis to support that there was insufficient evidence to verify that impairment of a certain magnitude existed;
(f) the respondent disputes the appellant’s submission that the MA assessed his degree of impairment by reference to his chronic pain condition, given the clear and extensive reasoning provided by the MA for his assessment of nil impairment in relation to the left shoulder. Specifically, it was open to the MA to assess nil impairment on the basis of his objective findings upon examination, clinical skill and judgment, the available medical evidence and the use of his discretion as permitted by paragraph 2.5;
(g) the respondent further disputes that the MA’s diagnosis of Chronic Pain Syndrome constitutes a demonstrable error as it did not interfere with his application of ss 1.36 and 2.5 of the Guidelines in relation to assessment of impairment for the left shoulder;
(h) the appellant has failed to make out a ground of appeal under s 327(3);
(i) the appellant submitted that the MA failed to perform a proper examination of the appellant’s left upper extremity due his diagnosis of Chronic Pain Syndrome and this constitutes a demonstrable error;
(j) the respondent relies on its submissions above and disputes that the MA’s diagnosis of Chronic Pain Syndrome constituted a demonstrable error to the extent that it did not interfere with his application of ss 1.36 and 2.5 of the Guidelines when assessing impairment of the left upper extremity;
(k) the respondent repeats its submission that the operation of s 1.36 of the Guidelines did not preclude the MA from finding nil assessable impairment in relation to the left shoulder;
(l) the appellant has failed to establish that the MA’s assessment contains a demonstrable error or was based on incorrect criteria in respect of any of the appellant’s Grounds of Appeal, and
(m) the appeal should be dismissed and the MAC issued by the MA dated 10 November 2021 confirmed.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the delegate has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In this matter, the delegate has determined that he is satisfied that a ground of appeal under s 327(3 (d) is made out in relation to the MA’s application of s 323 of the 1998 Act.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Medical Assessment Certificate
Under “Present symptoms” the MA wrote:
“Mr Mercer reports severe and disabling pain affecting his neck and right more than left shoulder regions.
He describes right anterior shoulder pain which feels like ‘knots’. He describes right shoulder blade pain that feels at times like ‘a steak knife sticking in’ and neck pain that at times feels like he was ‘hit with an axe’. There is also variable squeezing sensation ‘like a G clamp.’ Aching extends down the right arm with intermittent ‘bolts’. There is some tingling involving mainly all of the fingertips of the right hand and thumb.”
Under “Physical Examination Findings” the MA wrote:
“In regards to all range of movement testing the patient was advised to do their best but within their own limitations of pain and comfort levels.
Mr Mercer exhibits marked pain behaviour on attempted active movement of the arms or neck. He holds his right arm semi cradled against his body
All neck movements are markedly restricted symmetrically and accompanied by grimaces and sighing. There was a visible and palpable guarding.
There is no focal neurological deficit on examination of the upper limbs with deep tendon reflexes being depressed bilaterally, power globally reduced due to pain inhibition, and pinprick sensation assuming a non-dermatomal distribution with reduction over the upper arm, normal over the forearm and reduced overall of the fingertips but not thumb.
There was mild wasting consistent with disuse over the right deltoid. I did not feel there was significant wasting over the shoulder girdle regions or upper limbs otherwise. Girth.
measurements over the upper arms were 34 cm bilaterally and over the forearms 31 cm bilaterally.
Movement of the elbows bilaterally, wrist bilaterally and hands bilaterally were somewhat inconsistent but achieving within normal limits with some effort.
Shoulder movements bilaterally were inconsistent in range of motion and this was particularly evident on the left side when observed dressing and undressing where shoulder elevation was markedly more than when formally tested. Right shoulder flexion was between 10 to 20 degrees, extension 10 to 20 degrees, abduction 10 to 30 degrees, adduction 0, internal rotation 30 degrees and external rotation minimal. Left shoulder movements were variable but flexion approximately 90 degrees
(becoming full at other times), abduction approximately 90 degrees (becoming full at other times) and internal rotation and external rotation variably reduced by 20 to 50 degrees.
There was no sudomotor of vasomotor changes in the upper limbs to suggest a CRPS.”
Under “Summary of injuries and diagnoses” the MA wrote:
“Summary of injuries and diagnoses:
Soft tissue injury to the right shoulder on 11 July 2014 and associated bursitis/impingement; with subsequent development of neck pain and left shoulder pain. Chronic pain syndrome.
Depression.
Consistency of presentation:
There was marked pain behaviour and significant inconsistency in upper limb range of
movements bilaterally.”
Under “Reasons for Assessment”, the MA wrote:
“Impairment Upper Limbs
There is no calculable impairment for elbows, wrists and hands.
Range of movement of both shoulders were significantly inconsistent. There were
inconsistencies in range of movement. I felt that this was clinically consistent with self-limiting pain behaviour in keeping with a chronic pain syndrome.
The WCC Guides 4th Edition, Chapter 1, Page 7, Paragraph 1.36 as well as AMA 5,
Chapter 2, Page 19, Paragraph 2.5c states ‘these measurements, such as one that checks the individual's range of motion are good but imperfect indicators of people's effort. The assessor must use their entire range of clinical skill and judgement when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of 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’.
With respect to the upper limb the WCC Guides, 4th Edition, Page 10, Paragraph 2.5 states ‘if there is such inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation.’
Clinically, I did not consider that range of movement was a valid parameter of impairment and was at odds with the demonstrable pathology and that the medical evidence appears insufficient to verify an impairment of such a large magnitude exists.
This is not to suggest that the patient does not have significant pain or disability in relation to his chronic pain state but rather this is better considered and explained under “chronic pain” as outlined in Chapter 17 of WCC Guides, 4th Edition (Rev Mar 2021). In addition to Chapter 17 of the WCC Guides, 4th Edition (Rev Mar 2021) a Chronic Pain Syndrome is defined as ‘chronic pain associated with significant psychosocial dysfunction’ (WHO ICD-10-CM Code G89.4; A.M.A 4, Page 9 and A.M.A 5, Chapter 2, Page 20, Paragraph 2.5e). It is characterized by an exacerbation and perpetuation of pain symptoms and related disability due to a complex interplay of physical, psychological and social factors.
I note that Dr Osborne, treating orthopaedic surgeon wrote on 28 May 2015, ‘I am very happy to say that his range of motion is now normal but unfortunately he has still significant pain in the shoulder. Examination today shows him to have marked pain with any attempts of range of motion, however through the pain I am able to get glenohumeral external rotation to 40 degrees, abduction to 90 degrees, and forward elevation to 170 degrees.’
I note that the M.R.I arthrogram taken 8 October 2015 was normal. I note that Dr Osborne, treating orthopaedic surgeon wrote on June 23, 2016, ‘I have reviewed his MRI arthrograms today and they confirm an intact Rotator Cuff and pristine glenohumeral cartilage surfaces. There is no evidence of a subacromial bursitis or capsulitis and no evidence of arthritis. I can see no osseous abnormalities to account for his pain.’
Dr Osborne added, ‘he essentially has a chronic regional pain syndrome which is being managed by John Prickett [pain physician].’ Note that this should not be confused with complex regional pain syndrome (and for which there is no available evidence).
I note Dr Osborne, treating orthopaedic surgeon, wrote on August 10, 2017, ‘there is no mechanical source of his pain that I could address surgically.’
Ultrasound of the right shoulder taken 5 May 2015 was reported to be normal apart from some acromial bursitis with impingement. Arthroscopy operation report on 26 November 2014 identified normal findings apart from an inflamed bursa.
Paragraph 2.2 of the Guides specifies that anatomical impairment forms the basis for upper extremity assessment. In terms of objective anatomical impairments, I have assessed that there is evidence of shoulder impingement on the right side which is dealt with under Paragraph 2.16 of WCC Guides, 4th Edition (Rev Mar 2021) at 2% W.P.I. I note this 2% usually applies in situations where there is no restricted motion. However, there is no objective patho-anatomical or mechanical reason for restricted motion and to the extent that such exists it is in keeping with chronic pain as dealt with in Chapter 17.
There is no available evidence for a calculable impairment for the left shoulder.”
In commenting on other medical opinions, the MA wrote:
“Dr Porteous, orthopaedic surgeon medicolegal report 25 September 2019: assessed cervical spine DRE Category II, 5% WPI and 2% ADL contribution; right shoulder motion impairment 13% WPI and left shoulder motion impairment 7% W.P.I. Total of 25% WPI. No deductible proportion.
I similarly assessed 7% WPI for cervical spine but due to inconsistency of upper limb
movements, do not agree with the IME’s impairments for the shoulders.
Dr Panjratan, orthopaedic surgeon medicolegal report 19 December 2019: the IME assessed a total of 12% WPI.
The IME does not offer cervical spine WPI or corresponding ADL contribution based on his view of causation. The IME writes, ‘The condition of the neck cannot be explained in terms of the injury. I do not consider it work-related’. I would comment that causation has been predetermined by the Workers Compensation Commission and must be assessed by a M.A.
On today’s examination 7% WPI for cervical spine.
The IME awarded 7% WPI for the left shoulder based on another assessor’s findings at a different examination and time. The IME writes, ‘I would accept the movements of Dr James Powell who examined him last year’. This method of assessment is not open to an MA. Any valid impairment assessment must be performed by that assessor and occur ‘on the day’.
The IME awards 5% WPI for the right shoulder based on inconsistent presentation. On today’s examination I have assessed 2% WPI based on inconsistent presentation and in relation to the objective demonstrable findings”.
Assessment of left upper extremity
The Appeal Panel reviewed the evidence in this matter.
In the appellant’s statement dated 14 April 2021 (page 3 of the ARD, paragraphs 29 to 32) he set out the development of the left shoulder injury as follows:
“Following the injury and right shoulder surgery, I began to favour my left arm and left shoulder… After the incident, I was unable to sleep on my right-hand side due to my right shoulder injury and I was unable to sleep on my back as I would experience pressure and pain in my right shoulder. I would always sleep on my left-hand side. However, I would often wake up with a sore neck, sore left shoulder and sore left hip after sleeping on my left hand-side for an extended period of time.”
In his clinical records (page 539 of the ARD), Dr Mozafari noted on 14 November 2017: “… L hip pressure pain, sleep on left side.”
In a report dated 26 September 2017 (page 652 of the ARD), Dr John Christie noted: “I think his symptoms relate primarily to his shoulder and he may be getting some neck pain as a secondary effect from the altered posture that he has developed…”.
In a report dated 16 September 2019, Dr Porteous noted: “… The chronic right shoulder pain restricts left shoulder movement. There is a 22% UEI of a 13% WPI on the right and a 12% UEI or a 7% on the left”.
Dr Panjratan, in his report dated 19 December 2019, provided an assessment of the appellant’s level of impairment of the upper extremities based on the range of motion which resulted in the appellant being assessed as suffering from 7% WPI in the left upper extremity and 13% WPI in the right upper extremity. Dr Panjratan noted: “The Claimant’s left shoulder injury ‘results from’ a consequential condition. This is due to the right shoulder being rendered almost useless and reliance of the left shoulder”.
The appellant submitted that the assessment was made on the basis of incorrect criteria in relation to the level of impairment of the left upper extremity. In particular, the appellant argued that the MA failed to perform a proper examination to determine the appellant’s level of impairment due to the use of incorrect criteria and that constituted a demonstrable error. Further, the appellant argued that the conclusion reached by the MA in relation to the left upper extremity was at odds with his own findings upon examination as well as the available medical evidence.
The appellant also submitted that the MA has not provided an assessment of the appellant’s degree of permanent impairment in relation to the left shoulder, and due to the MA’s diagnosis of a chronic pain condition, he failed to perform a proper examination of the appellant’s left upper extremity which was a demonstrable error.
The Appeal Panel accepts that where there was inconsistency in a worker’s presentation it was necessary for the MA to draw upon the totality of their clinical skill and judgement to provide an assessment of a worker’s permanent impairment on the evidence available.
The Appeal Panel accepted that there were some inconsistencies noted in the examination by the MA and also in the examination by Dr Panjratan. However, the Appeal Panel noted that the inconsistencies in the examination by the MA related to both shoulders. Further, Dr Panjratan, despite the inconsistencies, was able to make an assessment of impairment.
The MA did make an assessment of impairment in the right shoulder (by way of analogy) and assessed 2% WPI for the right shoulder but made no assessment in respect of the left shoulder. The Appeal Panel considered that the MA did not adequately explain why, when there were inconsistencies relating to both shoulders, he could not make an assessment of the left shoulder, having done so in the right shoulder. The MA said that the appellant had a chronic pain condition and referred to chapter 17 of the Guidelines (which only applies to the assessment of complex regional pain syndrome), when there was no suggestion in the MAC or in any of the medical reports or other evidence that the appellant had a complex regional pain syndrome. The Appeal Panel did not accept that there was no evidence available for a calculable impairment particularly in circumstances where an assessment was made of the right shoulder but not the left shoulder. The MA did not provide adequate reasons to explain the method he adopted in terms of the assessment of the shoulders and the different approach taken in the assessment of the right shoulder and in the assessment of the left shoulder.
The Appeal Panel also considered that due to the MA’s diagnosis of chronic pain syndrome, the MA failed to perform a proper examination of the appellant’s left upper extremity and that constituted a demonstrable error.
The Appeal Panel concluded that it was necessary for the appellant worker to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Dr Stephenson re-examined the appellant on 30 March 2022. Dr Stephenson provided the following report:
1. The worker’s medical history, where it differs from previous records
In this review there is additional radiology and further reference to the arthroscopic procedure of Dr Don Osborne, Orthopaedic Surgeon. In the MAC in Reasons for Assessments, page 6 and 7, the medical assessor stated “Clinically, I do not consider range of movement was a valid parameter of impairment and was at odds with the demonstrable pathology and that the medical evidence appears insufficient to verify an impairment of such a large magnitude exists.” (emphasis added)
At page 7, fourth paragraph, the MA stated the MRI arthrogram taken 8 October 2015 was normal and stated “I noted that Dr Osborne – wrote on June 23, 2016, “I have reviewed his MRI arthrograms today and they confirm an intact rotator cuff and pristine glenohumeral cartilage surfaces. There is no evidence of a subacromial bursitis or capsulitis and no evidence of arthritis. I see no osseous abnormalities to account for his pain”.
Dr Osborne noted “he essentially has a chronic regional pain syndrome which is being managed by Dr Prickett (pain physician).”
The cervical spine assessment was not appealed. At page 4 of the MAC, section 6, Details and Dates of Special Investigations now will be regarded as new radiology evidence as it is not reported on by the medical assessor and his summary of the radiology reports needs to be revised to give a more accurate record.
Now the full report of the right shoulder arthroscopic acromioplasty of 20 November 2014 must be accounted for. The MA at page 2 states “arthroscopy was normal apart from bursitis”.
In my opinion, the presence of bursitis is not a normal condition and its presence is referred to in other radiology reports I have referred to below. Once Dr Osborne did report right shoulder arthroscopic acromioplasty 26 November 2014, the fact that an acromioplasty was undertaken means there must have been impingement with a hooked acromion which was converted to a flat acromion as recorded. Dr Osborne stated synovium normal but he was referring to the glenohumeral joint or shoulder joint proper. At the end of the report, he records “a large amount of inflamed bursa was noted. Acromioplasty was performed with conversion to type 1 (flat) acromion”.
Referring to the Details and Dates of Special Investigations, this needs additional information.
The MA does record at 6, paragraph ii, ultrasound right shoulder 5 May 2015 is reported to show no rotator cuff pathology, features of subacromial bursitis and impingement.
Now referring to the documents, page 70, the report of ultrasound right shoulder reads as follows: “no rotator cuff pathology is identified”. There is no comma where the MA added features of subacromial bursitis and impingement, therefore his reference reads “ultrasound right shoulder 5 May 2015 is reported to show no rotator cuff pathology, features of subacromial bursitis and impingement”. What the report actually reads, conclusion: “No rotator cuff pathology is identified”. There are scanned features of subacromial bursitis, as evidenced by subacromial subdeltoid bursal thickening and anterior bursal impingement demonstrated on dynamic assessment. Dr Thackeral, Radiologist. (emphasis added)
There was also an ultrasound of the right shoulder not reported in the MAC, that of 23 July 2014. Comment: Subacromial bursitis with impingement. Dr Fernando, Radiologist.
An ultrasound right shoulder of 23 July 2014 showed subacromial bursitis with impingement and the medical assessor did refer to that, paragraph v, section 6.
Another ultrasound report that of 23 November 2018, report of Dr Janke, Radiologist: “Globally restricted movement and pain without sonographic evidence of subacromial impingement raising the likelihood of capsular contracture/capsulitis”.
An x-ray right shoulder 23 November 2018, conclusion: Probable capsulitis. Rotator cuff intact. Dr Janke.
2. Additional history since the original Medical Assessment Certificate was performed
No additional history.
3. Findings on clinical examination
There was measurable restriction of active range of motion both shoulders assessed with reference to AMA-5 Chapter 16, Page 476-479. Figure 16-40 to Figure 16-46. Conversion table Page 439, Table 16-3. Assessment is for both shoulders.
Right Shoulder
Range of Motion
Upper Extremity Impairment
Abduction
70°
5%
Adduction
40°
0%
Flexion
60°
8%
Extension
30°
1%
External Rotation
60°
0%
Internal Rotation
90°
0%
The 14% upper extremity impairment converts to 8% WPI for right shoulder.
Left Shoulder
Range of Motion
Upper Extremity Impairment
Abduction
90°
4%
Adduction
40°
0%
Flexion
90°
6%
Extension
50°
0%
External Rotation
60°
0%
Internal Rotation
90°
0%
The 10% upper extremity impairment left shoulder converts to 6% WPI.
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional ones. I have referred to the corrected reports and the reports not referred to by the Medical Assessor.
CONCLUSION
Right shoulder gains 8% WPI. Left shoulder gains 6% WPI. Cervical spine gains 7% WPI.
The combination of 8 with 7 with 6 right shoulder, cervical spine and left shoulder gains a 19% WPI. There is no deductible proportion.
The Appeal Panel has adopted the report and findings of Dr Stephenson.
The Appeal Panel was satisfied that Dr Stephenson found a measurable restriction of active range of motion in both shoulders which he assessed with reference to AMA 5 chapter 16, pages 476-479, Figure 16-40 to Figure 16-46. Further, the Appeal Panel was satisfied that the ROM measurements at examination could be used as a valid parameter of impairment evaluation.
The Appeal Panel has therefore assessed 7% WPI for the cervical spine, 6% WPI for the left upper extremity and 8% WPI for the right upper extremity as a result of the injury on 11 July 2014. No appeal was made in respect of the assessment by the MA of the cervical spine. While the appellant’s submissions focused on the assessment of the left upper extremity, the appellant did submit that the MA failed to perform a proper examination to determine the appellant’s levels of impairment. The appellant also submitted that the Appeal Panel should issue a new MAC taking into account the appropriate ratings in accordance with chapter 16 of AMA 5 so that the new MAC issued appropriately reflected the appellant’s degree of impairment due to his work injuries.
In Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 Garling J considered that the Appeal Panel had to assess in accordance with the Guidelines. Garling J said:
“59. Having found error in the MAC issued by the AMS, the Appeal Panel revoked the MAC and determined for itself that the plaintiff’s whole person impairment relating to the left lower extremity was 10%. It did so in a shorthand way. That shorthand way was to adopt the assessment of the AMS because no party had challenged it. This shorthand way, whilst arguably permissible, did not relieve the Appeal Panel from its statutory obligation to conduct its assessment according to law.
60. In particular, the Appeal Panel was required to have regard to the provisions of s 322(1) of the 1998 Act in reviewing the AMS’ medical assessment. Those provisions require an assessment of the degree of permanent impairment of an injured worker ‘… to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose’. (emphasis in original)
61. That law required the Appeal Panel to apply the Guides, which as I have already explained adopt Table 17-33 of AMA-5. As is evident in [45] above, that Table does not permit an assessment of 10% whole person impairment of the left lower extremity. The fact that there was no appeal against that specific assessment by the AMS is beside the point. Once the Appeal Panel determined to set aside the MAC, it was required to undertake a fresh assessment of the plaintiff’s whole person impairment in accordance with the Guides”.
In this matter, the Appeal Panel found a demonstrable error in the MAC and determined that the MAC be set aside. The Appeal Panel was required to undertake a fresh assessment of the appellant’s WPI in accordance with the Guidelines. The Appeal Panel has made such an assessment of whole person impairment on the basis of a clinical assessment of the appellant by Dr Stephenson, the relevant medical history and all the available relevant medical information, including the imaging scans referred to by Dr Stephenson in his re-examination report above, in accordance with Part 1.6 of the Guidelines.
The Appeal Panel has therefore assessed 7% WPI for the cervical spine, 6% WPI for the left upper extremity and 8% WPI for the right upper extremity. This results in a total impairment of 19% WPI as a result of the injury on 11 July 2014.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 November 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 Medical Assessment Certificate of Dr David Lewington 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.Cervical Spine | 11 July 2014 | Chapter 4, Page 26, Table 4.1, Pages 27-28 Paragraphs 4.33 to 4.36 | Chapter 15, Page 392, Table 15-5 | 7% | 0% | 7% |
| 2.Left upper extremity | 11 July 2014 | Chapter 2, Page 11, paragraphs 2.14 - 2.16 Page 12- Paragraph 2.20 and Page 10 paragraph 2.5 | Chapter 16, Page 475, Figure 16-40, Page 477, Figure 16/43 Page 479 Figure 16-46 | 6% | 0% | 6% |
| 3.Right upper extremity | 11 July 2014 | Chapter 2, Page 11, paragraphs 2.14 - 2.16 Page 12- Paragraph 2.20 and Page 10 paragraph 2.5 | Chapter 16, Page 475, Figure 16-40, Page 477, Figure 16/43 Page 479 Figure 16-46 | 8% | 0% | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
Carolyn Rimmer
Member
John Brian Stephenson
Medical Assessor
Gregory McGroder
Medical Assessor
22 April 2022
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