Mercy Connect Ltd v Kiely
[2022] NSWPICMP 316
•5 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mercy Connect Ltd v Kiely [2022] NSWPICMP 316 |
| APPELLANT: | Mercy Connect Pty Ltd |
| RESPONDENT: | Rachelle Marscelle Kiely |
| APPEAL PANEL: | Member Brett Batchelor Medical Assessor Roger Pillemer Medical Assessor Greg McGroder |
| DATE OF DECISION: | 5 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal by employer on grounds that assessment of Medical Assessor Anderson (MA) was made on the basis of incorrect criteria; the Medical Assessment Certificate (MAC) dated 11 January 2022 contained a demonstrable error; the appellant submitted having regard to the significant discrepancy on the ranges of motion assessed in respect of the respondent worker’s injured right shoulder, between both the independent medical examiners retained by the parties on the one hand and the ranges of motion assessed by the MA on the other, there was a demonstrable error in the MAC; in the circumstances, the MA should have used a method of assessing the right shoulder other than the range of motion method; the appellant also submitted that the MA was in error in not making a 1/10th deduction pursuant to section 323 of the Workers Compensation Act 1998 (1998 Act); from his assessment of whole person impairment (WPI) both on respect of the right shoulder and the respondent’s injured cervical spine; the Appeal Panel found that, having regard to pre-existing problems in the respondent’s right shoulder appearing from the clinical notes of the general practitioner the MA should have made a section 323 of the 1998 Act deduction from the assessment of WPI as a result of injury to the right shoulder; the respondent was examined by a member of the Appeal Panel using the range of motion method; the Panel held was the correct method of assessment of the right shoulder; this resulted in similar ranges of motion to those found by the two independent medical examiners engaged by the parties; a 1/10th section 323 of the 1998 Act deduction was made from the assessment of WPI as a result of injury to the right shoulder found by the member of the Appeal Panel on his examination of the respondent; there was no challenge to the MA’s assessment of WPI as a result of injury to the cervical spine; Held – found that no section 323 of the 1998 Act deduction should be made from the assessment of WPI as a result of such injury; MAC revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 February 2022 Mercy Connect Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 January 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, 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 (the 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).
RELEVANT FACTUAL BACKGROUND
On 19 April 2011 the respondent worker (the respondent/Ms Kiely) suffered injury in the course of her employment with the appellant as a residential care co-ordinator. Ms Kiely was attacked by a client of the appellant in an office when the client attempted to stab her with a set of keys and threw her against a wall and bulkhead. She suffered injury to her right shoulder and neck.
The respondent initially was treated by her general practitioner, Dr Glen Mobilia, who referred her to a psychologist for treatment of the deterioration in her mental health she sustained as a result of the attack, and to Dr Brett Todhunter, pain management specialist, for treatment of pain resulting from her physical injuries. In 2019 Ms Kiely came under the care of Dr Matthew Howard, specialist shoulder surgeon, who carried out an arthroscopic procedure on the right shoulder. Dr Howard removed calcific deposits from the right shoulder and debrided the shoulder. Ms Kiely was subsequently treated conservatively with the use of cortisone injections and nerve blocks. There has been no significant improvement in her condition. She has not returned to work.
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 Panel found error in the MAC of
Dr Anderson in that he did not make a deduction from his assessment of 16% whole person impairment (WPI) as a result of injury to the right shoulder on 19 April 2011. Due to the significant differences in ranges of movement recorded by the independent medical examiners, Dr Doig engaged by the respondent and Dr Nair engaged by the appellant, and the MA, the Panel was of the view that Ms Kiely should undergo a further medical examination.
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Pillemer of the Panel conducted an examination of the worker on 20 June 2022 and reported to the 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 Panel. In summary they are as follows.
Appellant
Ground 1 of the appeal
The appellant notes that the MA assessed the respondent utilising the range of motion (ROM) method which yielded 26% upper extremity impairment. The appellant also notes that the MA achieved considerably greater WPI due to the gross restriction that Ms Kiely demonstrated in comparison with the movements achieved by the two other specialists. The appellant submits that the MA has fallen into error in accepting his assessment results for range of movement of the shoulder.
The appellant submits that this error is evident with the ROM achieved by the MA which resulted in 26% upper extremity impairment (UEI). In circumstances where two qualified assessors both yielded exactly the same result, the appellant submits that error should be inferred when these are compared with the grossly more restricted ROM achieved by the MA.
The appellant also submits that, other than noting that his assessment was greater than those achieved by Dr Doig and Dr Nair, the MA did not otherwise record in the MAC what methods, if any, were utilised to ensure the accuracy of his assessment. It is not apparent whether repeat testing was performed.
The appellant submits that the MA did not consider whether the chronic pain condition that he had earlier identified affected his assessment result, nor whether he used passive ROM to confirm his result, in accordance with [2.5] of the Guidelines.
Accepting that the MA is not bound by the findings of other assessors, the appellant submits that, in circumstances where two separate assessors provided identical ROM results and his note that his assessment were ‘considerably greater’:
(a) the assessment of the MA was not an accurate reflection of the ROM of the right shoulder, and
(b) the MA should not have adopted the ROM method as there was inconsistency between his result and those of Dr Doig and Dr Nair. The appellant refers to [1.36] and [2.5] of the Guidelines.
The appellant submits that the MAC should be revoked and that 16% UEI, or 10% WPI, should be applied to the right shoulder as assessed by Dr Doig and Dr Nair. Otherwise an alternative assessment method as provided under AMA 5 should be applied to assess the right shoulder.
Ground 2 of the appeal
The appellant submits that the MA made a demonstrable error in failing to consider relevant evidence, in the form of the clinical notes of the general practitioner, and in failing to apply a deduction for pre-existing injury, abnormality or condition under s 323 of the 1998 Act.
The appellant notes that in the MAC the 16% WPI assessed by the MA was in respect of a frank injury sustained on 19 April 2011, and that he made no deduction therefrom. In reaching that conclusion that appellant notes that the MA in response to the question “Details of any previous or subsequent accidents, injuries or conditions:” replied, “No previous conditions have been identified”.
On pp 5 and 6 of the MAC the appellant notes that the MA stated “…there has been no previous condition”, and concluded that “There has been no pre-existing condition which would necessitate any deduction”. The appellant submits that these conclusions were contrary to the evidence before the MA, and were in error.
The appellant refers to the entries in the clinical notes of Dr Mobilia attached to the Reply, covering the period from 9 September 2009 to 18 June 2010 containing references to right shoulder pain, injections into the shoulder, capsulitis/bursitis in the right shoulder and radiological investigation of the shoulder.
The respondent refers to the reports of Dr Nair in evidence dated 17 May 2021 (x2) and
15 June 2021, noting that the doctor applied a 1/10th deduction under s 323 of the 1998 Act in his third report after he had been supplied with the clinical material supplied by the general practitioner. This one tenth deduction was applied by Dr Nair to assessment of WPI of both the right shoulder and the cervical spine.In respect of the opinion of Dr Doig in his report dated 5 February 2021, the appellant notes that the doctor made no deduction for any pre-existing condition, but that it is not apparent from the report if he reviewed the clinical notes of the general practitioner. Dr Doig also recorded in his report the respondent’s history to him that she denied any previous problems or injuries to the anatomical areas he was examining.
The appellant submits that the evidence plainly demonstrates a pre-existing injury, abnormality of condition, and that the condition appears to have been chronic in nature.
The appellant submits that the MA has not referred, at all, to the clinical material, noting that on p 1 of the MAC the listed documents that were considered particularly relevant to the assessment did not include the clinical notes. The appellant submits that this evidence was either overlooked or not properly considered.
The appellant submits that the MRI of the right shoulder dated 11 May 2011 (one month post injury) revealed subacromial bursitis, that same condition recorded in the clinical notes of
29 September 2009.The MA’s statement on p 3 of the MAC that no previous conditions had been identified was, according to the appellant, patently incorrect as a matter of fact, and not consistent with the clear pre-existing conditions recorded in the clinical material.
The appellant submits that the MA fell into demonstrable error in failing to make a deduction under s 323 of the 1998 Act, and that a deduction of 1/10th should be made both in respect of the assessment of WPI as a result of injury to the right shoulder and the cervical spine.
Respondent
In reply, the respondent submits that Ground 1 of the appeal is not made out, and that there is no demonstrable error in Dr Anderson’s acceptance of the ROM assessment. There was no failure to identify inconsistency or unreliability in the assessment, or in failing to modify the assessment to account for inconsistency.
The respondent submits that the assessment of Dr Anderson was not based on incorrect criteria by failing to modify the ROM assessment. The respondent ultimately submits that the choices made by the MA were open to him in the exercise of his clinical judgement and that he demonstrated his compliance, and familiarity, with the Guidelines.
The respondent submits that the Guidelines make clear that a MA is required to assess the claimant as they are on the day of the assessment, and that Dr Anderson did this. He performed a detailed clinical assessment and utilised the ROM method as prescribed by the Guidelines. He recorded the results of his physical examination, referred to dates of special investigations performed and appropriately determined the ROM, the corresponding upper extremity impairment and WPI percentage. Dr Anderson failed to identify inconsistency in assessment.
The respondent notes that a MA is not bound by the decisions of a previous medical practitioner, and recognised the discrepancy between his ROM values compared with those of the two specialists who had previously examined and reported on her. This did not constitute a finding of inconsistent presentation, but a finding as to why his WPI rating varied from the other medical professionals.
The respondent submits that there was no need for the MA to modify his assessment because of suggested inconsistency in accordance with [1.36] and [2.5] of the Guidelines.
In respect of the chronic pain condition, the possibility of which was raised by Dr Anderson, the respondent submits that the doctor clearly excluded a diagnosis of Complex Regional Pain Syndrome. The assessment was performed on the basis of ROM of the upper extremity, and there was no link to pain.
The respondent draws attention to the passage of time between the assessments performed by Dr Doig on 27 January 2021, Dr Nair on 6 May 2021, and the MA on 6 December 2021. There was a lapse of seven months between the assessment of Dr Nair and Dr Anderson.
The respondent refers to the ‘presumption of regularity’ which attends administrative action of the type undertaken by the MA, and refers to the following cases in which the presumption is discussed:
(a) Jones v The Registrar of the Workers Compensation Commission[1];
(b) Bojko v ICM Property Services Pty Ltd[2], and
(c) Andrew Gollan v Scott Brown t/as Brownie’s Brick & Block[3].
[1] [2010] NSWSC 481.
[2] [2009] NSWCA 175.
[3] [2017] NSWWCCMA 78.
The respondent submits that Dr Anderson has taken a comprehensive history, conducted a clinical examination and recorded his findings on that examination, and explained the basis on which he did not agree with the impairment ratings found by the medico-legal specialists. This includes, according to the respondent, a presumption that the MA has ensured the accuracy of his assessments. The MAC also clearly demonstrates compliance with [1.47] of the Guidelines.
The respondent submits that Ground 1 of the appeal is not made out.
Similarly the respondent submits that Ground 2 of the appeal is not made out. With reference to the submission that Dr Anderson did not have appropriate regard to the clinical notes of the general practitioner, the respondent draws attention to [2] of the MAC in which the MA says that he states that the documents referred by the Commission were studied in detail. The respondent also refers to [9] of the MAC containing the MA’s statement as to his detailed review of the file, noting that the general practitioner’s notes were part of the documents referred by the Commission.
The respondent refers to the following authorities in respect of the requirements of the s 323 deduction for pre-existing conditions:
(a) Cole v Wenaline Pty Ltd[4];
(b) Ryder v Sundance Bakehouse[5], and
(c) Cullen v Woodbrae Holdings Pty Ltd[6].
[4] [2010] NSWSC 78.
[5] [2015] NSWSC 526.
[6] [2015 NSWSC 141.
The respondent submits that the clinical notes are not sufficient to ground a finding that there was a pre-existing condition or establish whether, if there was such a condition, it contributed to the impairment that was being assessed.
The respondent submits that the clinical notes do not confirm a formal diagnosis of subacromial bursitis, are vague in this regard and cannot ground a formal finding that there was a pre-existing condition that contributed to the current impairment. The respondent also submits that the clinical notes do not demonstrate that she was suffering from a chronic condition in her right shoulder.
The respondent submits that the finding of the MA that there was no pre-existing condition was open to him, and there is no demonstrable error established.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. (see Siddik v Workcover Authority of NSW[7] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[8]).
[7] [2008] NSWCA 116.
[8] [2013] NSWCA 1792.
In Campbelltown City Council v Vegan[9] 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.
[9] [2006] NSWCA 284.
Ground 1 of the appeal
The appellant submits that the MA fell into error in accepting his assessment results for ROM, and refers to the assessments of Dr Doig in his report dated 5 February 2021[10], and
Dr Nair in his reports dated 17 May 2021 (x2) and 5 June 2021[11]. As noted above, the appellant submits that either the assessments of Dr Doig and Dr Nair of 16% UEI should be accepted, or alternatively, an assessment method as provided under the AMA 5 Guides should be applied to assess the right shoulder.[10] Appeal Papers (AP) p 150.
[11] AP pp 156-162.
The Panel does not accept that an assessment method other than that used by Dr Doig,
Dr Nair and the MA should be used to assess the right shoulder. These doctors were correct in using the ROM method of assessment.The introduction to Ch 2 of the Guidelines provides that AMA 5 Ch 16 applies to assessment of permanent impairment of the upper extremities, subject to the modification set out therein. Paragraph [2.5] of the Guidelines states that:
“2.5 Range of motion (ROM) is assessed as follows:
· A goniometer or inclinometer must be used, where clinically indicated.
· Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
· If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation.
· 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 Introduction.
· 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.”
In making the submission referred to in [18] above, the appellant refers to [1.36] of the Guidelines in addition to [2.5].
Paragraph [1.36] of the Guidelines (Inconsistent presentation) is as follows:
“1.36 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.”
Paragraph [1.6] of the Guidelines is as follows:
“1.6 The following is a basic summary of some key principles of permanent impairment assessments:
a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
·whether the condition has reached Maximum Medical Improvement (MMI)
·whether the claimant’s compensable injury/condition has resulted in an impairment
·whether the resultant impairment is permanent
·the degree of permanent impairment that results from the injury
·the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality,
·if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.
b. Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.
c. In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated. If, in an unusual situation, a related injury/condition has not previously been identified, an assessor should record the nature of any previously unidentified injury/condition in their report and specify the causal connection to the relevant compensable injury or medical condition.
d. The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought – see also paragraphs 1.43 and 1.44 in the Guidelines.”
Paragraph [2.3] of the Guidelines is as follows:
“2.3 Assessment of the upper extremity mainly involves clinical evaluation. Cosmetic and functional evaluations are performed in some situations. The impairment must be permanent and stable. The claimant will have a defined diagnosis that can be confirmed by examination.”
The MA clearly recorded the results of the physical examination of the respondent, referred to the results of special investigations and determined the ROM he found on examination. He referred to the gross restriction of movement he found in comparison with the movements achieved by Dr Doig and Dr Nair in explaining why he differed from them in his assessment of UEI. In giving his assessment of permanent impairment Dr Anderson clinically assessed the respondent as she presented to him on the day. The doctor did not record any inconsistency of presentation.
In these circumstances the Panel finds that the MA was correct in assessing permanent impairment using active ROM measurements.
However, the Panel found error in the MAC in that the MA did not make a deduction from his assessment of 16% WPI as a result of injury to the right shoulder on 19 April 2011. That issue is discussed hereunder with reference to Ground 2 of the appeal. The Panel therefore determined that the respondent should undergo a further examination by a member of the Panel. Dr Pillemer conducted this examination on 20 June 2022. His report is as follows:
“REPORT OF THE EXAMINATION BY MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: M1-W5233/21
Appellant: Mercy Connect Ltd
Respondent: Rachelle Marscelle KIELY
Examination Conducted By: Roger Pillemer
Date of Examination: 20 June 2022
Ms Kiely attended with her husband today, having flown to Sydney from Albury.
1. The workers medical history, where it differs from previous records
I read Ms Kiely the history taken by the MA on 6 December 2021, noting her original injury on 19 April 2011 with significant ongoing symptoms in her neck and right shoulder region, and her right arm ever since then. As noted she has not gone back to gainful employment since her injury and has had various forms of treatment including injections, tablets and physiotherapy, but with no improvement in her symptoms. She came to surgery on her right shoulder region on 14 September 2019 with some initial improvement but then her symptoms deteriorated to what they were prior to the surgery.
She has also had a number of nerve blocks without any long lasting effect.
With regard to her present symptoms, these were very briefly stated in the report, and as will be noted below there are a number of additional symptoms that have been gone into. Ms Kiely once again denied previous problems with her neck or shoulder region or right arm.
She agreed that she did have a ‘mental health component’ and she informs me that she has been diagnosed with PTSD and is under the care of a psychiatrist for this.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Kiely informs me that she does have significant ongoing problems and feels that her symptoms are getting worse with time. The discomfort is felt in the right side of her neck, trapezius and shoulder area, and extends down her right arm and into the fingers of her right hand mainly involving the thumb, index and middle finger. She describes the neck and arm symptoms as being constantly present whereas the pins and needles and numbness in her hand tend to be intermittent. She does tend to drop things during the day.
Importantly Ms Kiely feels that all her symptoms are related and when her trapezius and shoulder symptoms are aggravated, so are the symptoms in her right hand.
On direct questioning she can go for possibly an hour without any significant symptoms if she is simply relaxing, but any movements of her arm will aggravate her symptoms, particularly elevation or internal rotation. She does get relief by resting and taking tablets.
As far as treatment is concerned, she continues to take Panadeine Forte and Largactil for her migraines, and also takes Endep at night, and has recently been given sleeping tablets by her treating psychiatrist. She stopped the physiotherapy which was simply aggravating her symptoms.
As far as general health is concerned, she says her ‘mental health component’ described in the MAC has been diagnosed as post-traumatic stress disorder (PTSD) and as mentioned she is under psychiatric care for this.
With regard to her limitations, Ms Kiely confirms that she can only drive short distances and has to have a cleaner in to assist with cleaning the house, and what would normally take her one hour now takes her four hours of housework, and she will have to ‘stop and start’. She is unable to hang washing and simply has to use a clothes horse. Her husband helps her with the shopping and pushing the trolley. She struggles with her self-care particularly activities such as washing her hair.
3. Findings on clinical examination
On examination Ms Kiely is an adult female with a mild to moderate increase in her body mass index and importantly presents in an open and straight-forward fashion.
She has difficulty removing her upper garments, avoiding elevation of her right arm, and does show some restriction of cervical movement particularly extension, with lateral rotation to the left being more restricted than to the right.
She does have residual restriction of right shoulder movement.
Right Shoulder Movements
Movement
Range
Flexion
80°
Extension
30°
Abduction
80°
Adduction
30°
Internal rotation
70°
External rotation
70°
Ms Kiely has satisfactory power of all muscle groups related to her shoulder.
Reflexes are all present, but importantly her right biceps jerk is diminished compared to the left side.
Most importantly Ms Kiely has diffuse hypoaesthesia to pinprick extending from the base of her neck on the right side, down the lateral aspect of her right arm and forearm, and involving the thumb, index, middle and ring fingers, but with distinctly normal sensation of her little finger and the medial aspect of her right arm.
In addition she has clear cut-off points over the anterior and posterior axial lines on her chest wall, and the sensory changes are distinct and present with repeated testing.
Please note that the sensory changes are in keeping with a traction injury of the upper and middle trunks of her brachial plexus with sparing of the lower trunk.
Importantly in addition there was very satisfactory grip strength present bilaterally, being slightly weaker on the right side. There was no muscle wasting to circumferential measurement.
4. Results of any additional investigations since the original Medical Assessment Certificate
Ms Kiely has not had any further investigations carried out since she had the Medical Assessment Certificate.”
The Panel accepts this report of Dr Pillemer issued following his examination of the respondent on 20 June 2022.
The “Right Shoulder Movements” recorded by Dr Pillemer result in a UEI of 15%, calculated as follows:
Movement
Range
% Upper extremity impairment
Flexion
80°
7
Extension
30°
1
Abduction
80°
5
Adduction
30°
1
Internal rotation
70°
1
External rotation
70°
0
Total
15%
In accordance with Table 16-3 of AMA 5, 15% UEI is equivalent to 9% WPI.
Ground 2 of the appeal
The appellant submits that there should be a 1/10th deduction applied pursuant to s 323 of the 1998 Act both in respect of the assessment of the right shoulder and cervical spine.
Right shoulder
Dealing firstly with the right shoulder, the Panel notes that the respondent informed Dr Doig, that she did not have any previous problems with her shoulder. In his principal report dated 17 May 2021 Dr Nair recorded “Nil relevant” past medical history. In his first supplementary report, dated 17 May 2021, Dr Nair did not make any deduction from his assessments of both the right shoulder and cervical spine “…as there was no evidence of a clinically significant pre-existing condition”.[12] At [19] of its submissions the appellant notes that a further report was requested from Dr Nair, specifically drawing his attention to the clinical material from the general practitioner, Dr Mobilia, summarised at [17] of the submissions. The second supplementary report of Dr Nair dated 15 June 2021 is in evidence[13]. It is not clear from the copy of the document in the AP as to what documents the doctor was supplied with. Nevertheless in answer to a question [1] in the supplementary report dated
15 June 2021: “Does that evidence suggest that there is in fact a pre-existing injury, abnormality of condition present in the worker’s right shoulder and/or neck?”, the doctor replied:“The information that I have been furnished with does suggest that clinically significant pre-existing conditions were present prior to the subject Incident. This was not volunteered to me when I obtained a history from Ms Kiely on 6 May 2021.”
Dr Nair went on to state that, with the new information at hand a 1/10th deduction for both the cervical spine and shoulder are appropriate.
[12] AP p 161.
[13] AP 162.
The MA recorded in the MAC that “No previous conditions have been identified” in response to the request for “Details of any previous or subsequent accidents, injuries or conditions”.[14]
[14] AP p 34.
When Ms Kiely was examined by Dr Pillemer he recorded “Ms Kiely once again denied previous problems with her neck or shoulder region or right arm”.
Notwithstanding these denials, it is quite clear from the clinical notes of Dr Mobilia covering the period from 9 September 2009 to 18 June 2018[15] that the respondent experienced considerable problems with her right shoulder over that period. These are summarised as follows:
[15] AP pp 229-232.
(a) 9 September 2002: “right shoulder capsulitis/bursitis”;
(b) 17 September 2009: “Pain has subsided when on these medications, coming in next week for steroid inj into shoulder”;
(c) 29 September 2009 includes reference to steroid injection into right shoulder and a diagnosis of right shoulder capsulitis/bursitis;
(d) 8 October 2009: notes refer to “Capsulitis – shoulder”;
(e) 29 October 2009: notes include reference to intra articular injection to right shoulder;
(f) 16 December 2009: notes refer to right shoulder pain and request for diagnostic imaging of the shoulder;
(g) 14 January 2010: notes refer to ongoing pain in the right shoulder;
(h) 21 January 2021: reason for visit is recorded as shoulder pain, and
(i) 1 June 2010: “shoulder pain” is recorded.
Having regard to this record of a lengthy history of right shoulder problems pre-dating the subject of injury, and the content of the clinical notes, the Panel is firmly of the view that a deduction should be made for a pre-existing condition. The respondent submits that the MA had access to the file referred to him which included the clinical notes of Dr Mobilia. However he does not specifically refer to those notes. The Panel does not accept the submission of the respondent that the clinical notes are not sufficient to ground a finding that there was a pre-existing condition, or establish, if there was a pre-existing condition, it contributed to the impairment that was being assessed by the MA. Notwithstanding the absence of radiological investigations that pre-date the subject injury, the Panel accepts the clinical notes provide a sufficient basis for the conclusion that Ms Kiely was suffering from a pre-existing condition in her right shoulder which contributes to the permanent impairment assessed after the injury of 19 April 2011.
The appellant submits that the deduction should be 1/10th which is the figure accepted by the Panel.
Cervical spine
The appellant does not take issue with the assessment of the MA of 7% WPI as a result of injury to the cervical spine on 19 April 2011, but submits that there should be a deduction therefrom of 1/10th of that figure. It bases this submission on the report of the MRI scan of the cervical spine dated 26 May 2011[16], noted by the MA in the “Details and Dates of Special Investigations” in the MAC to reveal “Degenerative changes in the lower segments”. The “Impression” in the report on the scan is as follows:
“Grossly normal MRI examination of the cervical spine. There is a shallow
posterior disc bulge located at the C3-C4 level measuring up to 0,2cm in
diameter and a questionable small left sided posterior osteophyte emanating
from the superior endplate of C3.”
[16] AP p 166.
The appellant also relies upon the entry in the clinical notes of Dr Mobilia dated
18 June 2011[17] recording “assaulted at work struck neck”. Dr Mobilia prescribed Endone and Panadeine Forte. There is no other reference to this neck injury in the AP.[17] AP p 229.
The Panel does not accept that there should be a deduction from the assessment of 7% WPI made by Dr Anderson. The findings of degenerative change on the MRI dated
26 May 2011 are no more than one would expect of a person aged 47 years. There is no other evidence to indicate that there should be a deduction for any previous injury, or pre-existing condition or abnormality.
Resolution of the appeal
Section 328(2) of the 1998 Act states that an appeal is to be by way of review of the original medical assessment but is limited to the grounds of appeal on which the appeal is made. This subsection was considered by the Court of Appeal in Queanbeyan Racing Club Ltd v Burton[18]. At [26] Basten JA stated:
“26 Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made.”
[18] [2021] NSWCA 304.
His Honour said at [33]:
“33 To suggest that once the Panel has determined to set aside the certificate, it was ‘required to undertake a fresh assessment of the plaintiff’s whole person impairment in accordance with the Guides’ is also erroneous. The fact that the Panel decided to set aside the certificate did not expand the scope of its appeal function: rather, setting aside the certificate was the necessary consequence of the proper exercise of the appeal function.”
At [46], his Honour concluded that the Appeal Panel in that case was required to give the grounds of appeal their ordinary meaning, in accordance with the understanding of the medical experts. He held that the primary judge did not err in concluding that the Appeal Panel would have erred had it sought to identify an error “of its own”, not being the error particularised in the grounds of appeal. Leeming JA and McCullum JA agreed with the reasons of Basten JA.
Notwithstanding the findings on examination of Dr Pillemer that the sensory changes are in keeping with a traction injury of the upper and middle trunks of her brachial plexus with sparing of the lower trunk, the Panel is obliged to determine the appeal on the basis of the grounds on which it is brought.
The Panel finds that the respondent has 9% WPI as a result of injury to the right upper extremity on 19 April 2011, from which there must be a deduction of 1/10th thereof. That results in 8% WPI (rounded). The respondent has 7% WPI as a result of injury to the cervical spine on 19 April 2011 from which there should be no deduction. Utilising the Combined Table values, a final assessment of 14% WPI is obtained.
For these reasons, the Panel has determined that the MAC issued on 11 January 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W5233/21 |
Applicant: | Rachelle Marscelle Kiely |
Respondent: | Mercy Connect Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | 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) |
| Cervical spine | 19 April 2011 | Ch 4 p 24. | p 392 T 15-5 | 7 | 0 | 7 |
| Right upper extremity | 19 April 2011 | Ch 2 p 10 | p 476 F 16-40 p 477 F 16-43 p 479 F 16-46 p 439 T 16-3 | 9 | 1/10th | 8 |
| Total % WPI (the Combined Table values of all sub-totals) | 14 | |||||
0
7
0