Mertoa v Hunt Civil Pty Ltd
[2021] NSWPICMP 149
•16 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mertoa v Hunt Civil Pty Ltd [2021] NSWPICMP 149 |
| APPELLANT: | Junior Merota |
| RESPONDENT: | Hunt Civil Pty Ltd |
| APPEAL PANEL: | Member Carolyn Rimmer Dr John Brian Stephenson Dr Gregory McGroder |
| DATE OF DECISION: | 16 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant sustained injury to the right shoulder and developed Chronic Regional Pain Syndrome which Medical Assessor (MA) assessed at 60% WPI; MA then deducted one-tenth pursuant to section 323 in respect of impairment from a fall some months after the work injury; Held- MA erred in making a deduction pursuant to section 323 for a subsequent injury; Panel not satisfied that any impairment was caused in the fall; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 July 2021 Junior Merota (the appellant) made an application to appeal against a medical assessment (the appeal) to the Personal Injuries Commission (the Commission). The medical assessment was made by Dr Mohammed Assem, Medical Assessor (the MA) and issued on 7 June 2021.
The respondent to the appeal is Hunt Civil Pty Ltd.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· 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 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 an injury to the right upper extremity as a result of the injury on 27 September 2019.
In the Amended Referral for Assessment of Permanent Impairment to a Medical Assessor dated 31 May 2021, the matter was referred to the MA, Dr Mohammed Assem, for assessment of whole person impairment (WPI) of the right upper extremity as a result of the injury on 27 September 2019.
The MA examined the respondent on 2 June 2021. He assessed 60% WPI of the right upper extremity and deducted 1/10th pursuant to s 323 of the 1998 Act for pre-existing injury, condition or abnormality. Therefore, the total assessment was 54% WPI in respect of the injury on 27 September 2019.
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 did not request 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 not necessary for the appellant worker to undergo a further medical examination because there was sufficient evidence on which to make a determination.
EVIDENCE
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.
Medical Assessment Certificate
The parts of the medical certificates given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a) Ground 1 - the MA erred in his application of s 323 of the 1998 Act on the basis of a ‘subsequent’ rather than pre-existing injury;
(b) Ground 2 - the MA failed to adequately explain or explain at all the reasoning by which he determined that the subsequent injury has contributed (or is contributing) to the present degree of impairment;
(c) in respect of Ground 1, the MA applied a s 323 deduction for a purported subsequent injury. Garling J in Johnson v NSW Workers Compensation Commission [2019] NSWSC 347 (Johnson) at [68] held that s 323 cannot be used for the purpose of reducing assessable impairment for the effects of a subsequent injury;
(d) the deduction (one-tenth of 60% or 6% WPI) should not have been made and accordingly the resulting WPI was arrived at by way of error. The MAC should be revoked and a new MAC issued assessing 60% WPI;
(e) in respect of Ground 2, the MA noted that the appellant was admitted to Westmead Hospital following a fall on 17 January 2020. The appellant told the MA that he had landed on his right shoulder. The MA wrote:
“The radiological findings after the fall would suggest that he sustained a
significant injury to his right shoulder and possibly dislocated his right shoulder.
As it was difficult or costly to determine whether the fall contributed to his shoulder impairment or the subsequent development of CRPS, a one-tenth deduction was applied.”
(f) on 17 January 2020, the appellant collapsed on the street after attending physiotherapy, this being the fall subject of the MA’s one-tenth deduction;
(g) the MA in answer to Question 11 of the standard MAC wrote he “fell onto his right [shoulder] … was not related to the work injury.” The finding that the fall was not related to the work injury was a conclusion reached by the MA impermissibly, since it was not explained why the fall was unrelated;
(h) the MA had taken an account on page 2 of the MAC of the appellant falling after physiotherapy but omitted (or did not take) the history of the appellant that he was reliant on a walking stick, had developed bilateral swelling of his legs, had developed sores on his feet that were painful, and was becoming dizzy. These symptoms had developed after the appellant’s sepsis and right shoulder ‘washout’ surgery;
(i) the MA noted the relationship between the episode of collapse/fall after a treatment related physiotherapy but neglected to comment on whether or not there was a causal relationship between the exercises performed in therapy and the collapse;
(j) there was at least a strong prima facie case for the fall to be considered causally related to the injury by way of an unbroken chain of causation;
(k) in Government Insurance Commissions v Oakley [1990] WASC 12, Malcolm CJ identified three categories of causation in which subsequent injury is related to the initial one for which liability is established. In the appellant’s case, the first of the three must apply:
“(1) Where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;”
(l) it was necessary for the MA to attempt to explain why the subsequent injury (fall) had contributed to the degree of total impairment. He appeared to admit and accept it would be difficult and costly to do so. It was in fact essentially immaterial that there was a subsequent injury, given the nature of the CRPS condition the MA did find, and the extent to which the appellant’s arm was simply unusable anyway;
(m) in the present instance, the MA concluded that the appellant had ‘no functional use of his right arm’ and that ‘there is no meaningful function with his injured right arm and severe pain on pressure’, and that the injury is comparable to the degree of impairment relating to amputation;
(n) the MA was required to explain the reasoning by which he concluded that the injury had caused some additional impairment of the equivalent-to-amputation dysfunction of the right arm and failed to do so. On this ground, the MAC also demonstrates error.
The respondent’s submissions include the following:
(a) the appellant seeks to challenge the MAC on the basis that:
(i)the MA incorrectly applied s 323, and
(ii)the MA failed to explain his reasoning by which he found the subsequent injury contributed to the impairment.
(b) however, the appellant also asserted that the MA failed to contemplate that the subsequent injury was said to be caused by the impairments arising from the subject injury, and thus the chain of causation was not broken between the two incidents. The appellant suggested that the MA failed to explain how the fall on 17 January 2020 was unrelated to the subject injury;
(c) the appellant relied exclusively on his own statement in grounding the suggestion that he fell by virtue of his reliance on a walking stick, and/ or the bilateral swelling of his legs and/ or the sores on his feet, and/or or dizziness, and on that basis the MA fell into error as he failed to accept that the subsequent fall was somehow causally related to the subject injury;
(d) review of the clinical evidence before the MA indicated that it was far from clear that from a clinical perspective that it was in fact the subject injury which gave rise to the fall. The respondent noted:
(i)the appellant in his submissions endeavoured to draw the conclusion that it was his reliance on a walking stick, and/ or the bilateral swelling of his legs and/ or the sores on his feet, and/or or dizziness that caused the fall, however, this submission was not supported by any medical evidence, including the appellant’s qualified opinion of Dr Gothelf, who merely takes a history that the appellant collapsed after a physiotherapy appointment;
(ii)the discharge summary of Westmead Hospital dated 22 January 2020 recorded the appellant presented on 17 January 2020 and was discharged on 22 January 2020. On that occasion, he was admitted due to a syncope; however, the cause of this could not be identified. His stay was complicated by polyneuropathy with long-standing pain in his right hand and bilateral feet;
(iii)the appellant suffered a raft of other health maladies, including diabetes, gout, renal impairment, congestive heart failure, ischemic heart disease and chronic pancreatitis (MAC page 3), and
(iv)the appellant submitted that the respondent’s IME, Dr Powell, did not cavil with the causative chain between the injury and the subsequent contaminated injection, and onset of various symptoms caused by sepsis. This was true but review of Dr Powell’s report made it plain that Dr Powell took no history of a fall in or around January 2020.
(e) the MA would have in fact fallen into error had he assumed, as was contended by the appellant, in the absence of any medical evidence, that the two events were in fact in any way connected;
(f) further it is settled law that matters of causation are matters to be decided at arbitral level; Wikaira v Registrar Workers Compensation Commission NSW & Anor [2005] NSW SC 954; Merza v Registrar Workers Compensation Commission NSW & Anor [2006] NSW SC 939;
(g) in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 where Basten JA provides the following:
“Questions as to the adequacy of the reasons given by an approved medical
specialist are different in kind. Although reasons are required so that
the unsuccessful party may know why he or she has failed, it does
not follow that a medical specialist has to give reasons which are
immediately comprehensible to a person with no medical expertise.
For example, a medical expert speaking to other practitioners might say
that some degree of impairment was self-evidently caused by a pre-existing
condition, despite the fact that the person was asymptomatic prior to the
injury. On the other hand, such a conclusion may be medically
contestable. In order for the applicant to succeed in this Court in
asserting inadequacy of reasons, there must at least be material
properly before the Court which demonstrates that the opinion falls
nto the latter category. The Court was not taken to any material which
indicated that to be the case”.
(h) the appellant has failed to identify any material to assert that the assessment was medically contestable through an inadequacy of reasons;
(i) for this reason, the evidence does not in fact suggest that the first category in Oakley must apply, as contended by the appellant;
(j) the appellant has attempted to rely on s327(3) (d) in his appeal of the MAC. However, he has not discharged his evidentiary obligation to show that there is a need for the Appeal Panel to revoke the MAC;
(k) the appellant’s submissions largely cavil with the clinical judgment
of the MA, the conclusions for which he was entitled to reach on the basis of
the history provided by the appellant on examination, his examination of the
appellant and within the medical and factual material filed in the proceedings. Even if the Medical Appeal Panel were to come to a different conclusion than the MA, it is submitted that the Medical Appeal Panel has no jurisdiction to replace the MA’s assessment with their own without first finding an error as prescribed under s 327(3)(d) of the WIMA: namely that MAC contained a demonstrable error: Ferguson v State of New South Wales [2017] NSWSC 887, Parker v Select Civil Pty Ltd [2018] NSWSC 140, Chalkias v State of New South Wales [2018] NSWSC 1561.
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 Vegan 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 Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 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.
The MAC
Under “History Relating to the Injury”, the MA wrote:
“On 27 September 2019, Mr Merota was lifting a 150mm x 6m pipe with the assistance of two colleagues. He was transferring it to his right hand when the pipe dropped, causing a pulling sensation in his right shoulder accompanied by immediate pain. He was able to continue working for the remainder of his shift despite persistent discomfort. He attempted to return to work but had difficulty coping due to persistent right shoulder pain that progressively increased in intensity.
He consulted Dr Yusuf on 15 October 2019 with throbbing right shoulder discomfort and stiffness. He was referred for an ultrasound-guided cortisone injection into his right shoulder on 18 October 2019 that was complicated by increasing right shoulder pain and swelling of his right hand.
He consulted Dr Piper on 22 October 2019 with excruciating pain involving his hands and feet. Dr Piper diagnosed septic arthritis of his right shoulder with concurrent gout. He was admitted to Westmead Hospital for right arthroscopic washout and intravenous antibiotics. An MRI scan of his right shoulder at Westmead Hospital on 5 November 2019 showed ongoing bone marrow oedema and ongoing septic arthritis. He was discharged on 5 November 2019 and continued to have regular intravenous antibiotics.
On 30 November 2019, he suffered a cardiac arrest and was again admitted to Westmead Hospital for the insertion of a stent. While at Westmead Hospital, he underwent ultrasound examination of his right arm on 5 December 2019 that showed synovial thickening around the head of the biceps and fluid in his right shoulder joint. He was eventually discharged on 13 December 2019 and commenced physiotherapy treatment.
He was again admitted to hospital on 17 January 2020 after collapsing following a
physiotherapy treatment appointment. Mr Merota informed me that when he collapsed, he tried to grab a post with his left hand but missed and fell onto his right shoulder. An MRI scan of his right shoulder on 1 April 2020 showed features of recent anteroinferior shoulder dislocation/relocation with a large Hill-Sachs lesion and labral Bankart tear. There was a small intrasubstance tear of the supraspinatus footprint.”
Under “Summary of injuries and diagnoses” the MA wrote:
“Mr Merota is a 53-year-old right hand dominant gentleman who sustained a work related injury to his right shoulder on 27 September 2019. He complained of right shoulder pain and stiffness that was treated with an ultrasound-guided cortisone injection.
Unfortunately, he subsequently developed septic arthritis requiring arthroscopic drainage, debridement and intravenous antibiotics followed by oral antibiotics. Although the infection eventually subsided, his progress was complicated by the development of symptoms and signs consistent with complex regional pain syndrome. He subsequently had a fall and collapsed, landing onto his right shoulder, resulting in a possibly (sic) dislocation.
It was difficult to determine whether the fall contributed to the symptoms and limitation involving her right shoulder or the CRPS that was probably established at that time. He now has no meaningful use of his injured dominant right arm for any of his personal or domestic activities of daily living.”
Under “Reasons for Assessment” the MA wrote:
“Mr Merota has symptoms and signs consistent with CRPS1. According to the diagnostic criteria specified in the WorkCover Guides, 4th Edition, his condition has been present for more than one year and the diagnosis has been established by more than one examining physician. There is continuing pain disproportionate to any causal event. He has hyperaesthesia and allodynia. There are colour and temperature changes, oedema, occasional tremors, trophic changes and stiffness. At the time of my assessment, he continued to have sensory, vasomotor, sudomotor and motor/trophic changes. There is no other diagnosis that better explains the signs and symptoms.
According to the instructions in the WorkCover Guides, the upper extremity impairment resulting from loss of motion is combined with upper extremity impairment rated according to the degree it interferes with his activities of daily living. Mr Merota had marked restriction in right shoulder, elbow, wrist and finger movement. There was no meaningful function with his injured right arm and severe pain on pressure. I therefore consider that he has grade 0 or 100% sensory deficit due to abnormal sensation and severe pain that interfere with all of activities. This is then combined with the motor deficits noted in the body of the report.As the maximum impairment cannot exceed an amputation of the right upper extremity, he was awarded 100% RUEI or 60% whole person impairment. Given that his condition arose as a complication of the injury he sustained during the course of his employment, there were no deductions applicable. However, he was admitted to Westmead hospital following a fall on 17 January 2020. Mr Merota informed me that he landed onto his right shoulder.
An MRI scan prior to the fall on 5 November 2019 (sic) was reported to show ongoing bone marrow oedema of the humerus and high signal in the rotator cuff probably reflects ongoing septic arthritis/osteomyelitis. After the fall, he indicated that a plain x-ray of his shoulder was taken at Westmead Hospital. I noted that an x-ray was taken of his right hand and reported to be normal. An MRI scan of the right shoulder on 1 April 2020 was reported as follows, “There is evidence of recent anteroinferior shoulder dislocation/relocation injury. There is a large Hill Sach's lesion with impaction at the superior and posterior humeral head. The lesion measures 30mm AP, 13mm craniocaudal with a depth of approximately 10mm. There is slight underlying oedema. There is associated Bankart lesion with a labral tear anteroinferiorly extending from 6 o'clock position. The remainder of the labrum is intact. There is a partial tear of the anteroinferior glenohumeral ligament with mild sprain of the posterior glenohumeral ligament. The AC joint shows early OA. There is a small intrasubstance footprint tear of the supraspinatus, otherwise the supraspinatus, infraspinatus and subscapularis tendons are intact”. A bone scan on 20 April 2020 identified features of recurrent shoulder dislocation. A subsequent bone scan on 5 May 2020 showed diffuse uptake consistent with CRPS.
The radiological findings after the fall would suggest that he sustained a significant injury to his right shoulder and possibly dislocated his right shoulder. As it was difficult or costly to determine whether the fall contributed to his shoulder impairment or the subsequent development of CRPS, a one-tenth deduction was applied.”
The MA, at Part 11 of the MAC under the heading “DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY” wrote:
“a. The extent of the deduction is difficult or costly to determine so in applying the provisions of s 323(2) I assess the deductible proportion as one tenth for a subsequent injury to his right shoulder following a fall onto his right that was not related to the work injury. Due to the limitations in Table 2, it was regarded as a pre-existing injury, condition or abnormality”.
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. The Appeal Panel accepts the findings on examination that the MA made in the MAC.
Assessment of the upper right extremity – section 323 deduction
The appellant submitted that the MA made a demonstrable error pursuant to s 327(3)(d) of the 1998 Act in making a deduction pursuant to s 323 of the 1998 Act in respect of impairment arising from the fall on 17 January 2020.
Section 323 of the 1998 Act provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4)The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”In Johnson v NSW Workers Compensation Commission [2019] NSWSC 347 (Johnson No 1) Garling J considered that the first Panel was in error by making a deduction from the WPI because of a subsequent psychiatric injury with a different employer.
Garling J said at [63]:
“As set out in [25] above, the AMS concluded that the plaintiff’s chronic condition caused by her NSW Education injury was exacerbated by the later Hostel injury. Although the Panel found error in the AMS Certificate, that error arose because of the incorrect use by the AMS of the mechanism provided for in s 323 of the 1998 Act. Instead of applying s 323 according to its terms (which relate to a pre-existing condition) the AMS had applied those provisions to the subsequent Hostels injury. At no time did the Panel in its reasons depart from the diagnosis of the plaintiff’s condition, or the extent of the assessed whole person impairment.
Section 323 only applies in the event of an injury, abnormality or condition that predates the subject work injury. It has no application in respect of subsequent injuries. The Appeal Panel agreed with the appellant that by applying s 323 to the effects of the subsequent fall on 17 January 2020 the MA made a demonstrable error.
The appellant submitted that the MA failed to adequately explain or explain at all the reasoning by which he determined that the subsequent injury has contributed (or is contributing) to the present degree of impairment.
The Appeal Panel proceeded to consider whether the further injury on 17 January 2020 had caused any additional impairment. If the fall on 17 January 2020 had caused any additional impairment, the Appeal Panel would then need to consider whether this should be included with the assessment of impairment due to the subject work injury or be deducted from the assessment of WPI.
The Appeal Panel reviewed the evidence in this matter.
In the MRI Right Shoulder report dated 5 November 2019, performed at Westmead Hospital, it was noted:
“Ongoing bone marrow oedema of the humerus and high signal in the rotator cuff probably reflects ongoing septic arthritis/osteomyelitis.
No destructive changes. There remains a moderate shoulder joint effusion. No drainable extra articular collection”.In the MRI Right Shoulder report dated 1 April 2020, Dr Tushar Singh noted:
“Comment: Features of recent anteroinferior shoulder dislocation/relocation injury. There is a large Hill-Sachs lesion and a labral Bankart tear.
Small intrasubstance tear of the supraspinatus footprint with no full thickness cuff tear.”
The appellant in his statement dated 11 March 2021 wrote:
“32. On 7 January 2020, I first consulted with Physiotherapist, Ms Lucy Faehrmann. I explained to Ms Faehrmann that I was suffering from constant sharp pain and a pins and needles sensation in my abdomen and both of my feet. I was also continuing to suffer from dizziness, swelling in my right hand and stiffness and pain in my right shoulder. Ms Faehrmann provided me with exercises for my right shoulder and massages for my right hand. I continued to consult with Ms Faehrmann on a weekly basis until April 2020. I did not find these sessions to be useful in improving my
symptoms.
33. On 17 January 2020, shortly after attending a physiotherapy appointment, I collapsed in the street and was taken to the emergency department at Westmead Hospital. Upon my admission to hospital, I had an x-ray taken to my right shoulder but no cause for my collapse could be identified and I continued to suffer from severe pain in my right hand and both feet”.The appellant was admitted to Westmead Hospital following the fall on 17 January 2020.
In the Discharge Transfer Documents from Westmead Hospital in respect of the admission on 17 January 2020 and Discharge on 22 January 2020, the principal diagnosis was Syncope with additional diagnoses of Polyarticular joint involvement, Syncope (ED suspected) and Polyneuropathy.
Under “Progress in Hospital” in the Discharge Transfer Documents, the following summary was noted:
“Junior Merota was admitted to Westmead Hospital under Professor Stuart Thomas due to a syncopal episode. He underwent electrophysiological study to try to identify any dysrhythmias, but nil cause of his syncopal event could be identified. His stay was also complicated by polyneuropathy with long-standing pain to his right hand and bilateral feet. His inflammatory markers remained negative and he will follow up with the Rheumatology clinic in the future.”
Under the heading “ED to Ward Transfer (Medical)” it was noted that the appellant was “52M with syncope on background of significant cardiac history”. Under “Screening for Risk”, it was noted that the appellant presented to hospital with a fall and “Syncope outside hospital while waiting for a taxi. LOC. Pt reported only hit his shoulder.”
In the Emergency Department Notes from Westmead Hospital dated 17 January 2020 under “Triage Presenting Information” it was noted “ALS, found outside main entrance. FALL from standing height, dizzy prior, LOC. Attended Physio today.”
In the ED Review Note dated 17 January 2020, Dr Ashish Sood wrote:
“ 52M ALS outside main entrance of hospital. Was pre-syncopal following PT earlier today, then had syncope with LOC. Patient reports he had PT at 0930 hours. Got up and mobilised to taxi stand to go home. Had pre-syncope with weak legs, then had syncope with LOC. Had been standing for 10 minutes by this point, no postural changes prior to fall. …. Currently reporting old pain only. No new pain from fall.”
Under Medical History, Dr Sood noted MSSA bacterium and R shoulder septic arthritis and arthroscopic wash out on 23 October 2019, the admission to ICU with hypoxic hypoventilatory respiratory failure and diastolic heart failure with TTE on 2 December 2020, Type II diabetes mellitus, peripheral neuropathy, likely diabetic nephropathy, hypercholesterolaemia and gout.
In the Progress Notes dated 18 January 2020 under the heading “Hand pain”, Dr Kim Linh Van noted: “Complaining of 7/10 R hand and B/L toe pain for last 6/52. A/w hand and feet swelling. Wakes up with pain. Improves with movement. No large joint involvement. “Under “O/E” Dr Van noted that the R shoulder and elbow were sore and under “impression” wrote “inflammatory arthropathy.”
In a Progress Note Document dated 9 April 2020, Dr Daniel Park at the Orthopaedic Clinic noted that the MRI of the right shoulder performed on 1 April 2020 showed a Hilsach’s lesion and Bankart tear. Dr Park noted he explained the MRI findings to the appellant and wrote: “suggestive of previous shoulder dislocation, but no current dislocation or any surgical issues.”
Dr Todd Gothelf, in a report dated 27 April 2020, noted that the appellant went back to hospital on 17 January 2020 and was admitted as he collapsed after a physiotherapy appointment. Under Diagnosis and Opinion, Dr Gothelf wrote: “Right shoulder impingement and tendonitis treated with a cortisone injection. Mr Merota developed a right shoulder septic arthritis treated with arthroscopic debridement and antibiotics. He currently has a right arm complex regional pain syndrome with persistent pain and stiffness.” Dr Gothelf noted that diagnoses that are not related to the subject injury included: Type II Diabetes poorly controlled, hypertension, left cataract surgery 20 years ago, peripheral neuropathy, hypercholesterolaemia, gout, fluid retention, 100% LAD occlusion and renal impairment.
In a report dated 14 October 2020, Dr Gothelf noted that the pain and symptoms (sensory, vasomotor, sudomotor and motor) in the right arm had been present since October 2019. He made an assessment of 59% WP as a result of the injury on 27 September 2019.
In a report dated 29 January 2021, Dr James Powell referred to the Imaging report of an MRI scan of the right shoulder from October 2020 which showed signs consistent with previous dislocation of the right shoulder with an anterior labral tear and a Hill-Sach's lesion. He wrote:
“It is unclear as to when these features developed as Mr Merota gave no history of having had primary dislocation of the shoulder nor of any subsequent episodes of instability in his history. (It is unlikely that the incident in the manner which Mr Merota describes it and his subsequent course, that the workplace incident was one of primary dislocation.)”
Dr Powell responded to the following question as follows:
“Are there pre-existing impairments/conditions/abnormalities? Please
give details and any apportionment or contribution to impairment levels
a. What is the level of permanent impairment arising from
pre-existing conditions?
b. What is the remaining amount of permanent impairment?
c. Has there been any further injury subsequent to the work-related
injury that may be impacting on the current permanent
impairment?
As outlined above, imaging suggests that Mr Merota has had an episode of
right shoulder dislocation. It is unclear as to when this occurred, as the
description of the workplace incident is not consistent with a first dislocation
and so the imaging changes are likely to represent an incident that occurred
previously.
Although Mr Merota cannot be assessed for permanent impairment at
present, it is likely that the impairment will reflect the effects of his Complex
Regional Pain Syndrome which affects the entire right upper limb and is
assessed by a combination of persisting joint stiffness in the areas of
involvement which are likely to be from the shoulder down to the hand, and
the neurologic component which may be persisting allodynia rather than
peripheral nerve involvement.
Mr Merota's presentation is not one of instability of the right shoulder and
although he may have had a previous episode reflecting these changes, this
would be a minor component of any deduction as it will only pertain to its
possible influence on range of motion at the shoulder and not his morewidespread condition”.
The MA noted that the bone scan on 20 April 2020 identified features of recurrent shoulder dislocation and a subsequent bone scan on 5 May 2020 showed diffuse uptake consistent with CRPS. The MA considered that the radiological findings after the fall suggested that the appellant sustained a significant injury to his right shoulder and possibly dislocated his right shoulder. However, the MA then wrote:
“As it was difficult or costly to determine whether the fall contributed to his shoulder impairment or the subsequent development of CRPS, a one-tenth deduction was applied.”
For a reduction to be made to the assessment of WPI for the work injury in respect of impairment caused in a further injury subsequent to the work injury, the Appeal Panel must be satisfied that the subsequent injury, that is, the fall on 17 January 2020, did cause some additional impairment. The MA noted that it was difficult to determine whether the fall contributed to the symptoms and limitation involving the right shoulder.
After reviewing the evidence, particularly the hospital notes following the appellant’s admission on 17 January 2020, the Appeal Panel was not satisfied that any impairment resulted from the fall on 17 January 2020. It appears that the appellant was not provided with any treatment for the right shoulder in hospital following the admission on 17 January 2020. Although there was reference to limited range of motion and pain in the right shoulder,
Dr Sood noted that this was “old pain” and there was no new pain from the fall.The CPRS condition was very severe and affected the whole arm. As Dr Powell noted the appellant’s presentation was not one of instability of the right shoulder and although the appellant may have had a previous episode reflecting these changes, this would be a minor component of any deduction as it would only pertain to its possible influence on range of motion at the shoulder and not the more widespread condition.
The MRI scan of 1 April 2020 was evidence of a dislocation and relocation. While a dislocation and relocation can, in some cases, cause a restriction in movement in the shoulder, the CPRS caused by the work injury was so widespread and severe that any possible restriction in movement from a dislocation would be extremely minor. Such minor restriction would not actually impact the assessment of WPI. In any event, the Appeal Panel was not persuaded that the evidence supported a finding that the fall on 17 January 2020 had caused further restriction of movement in the right shoulder.
In any event, the assessment by the MA of the sensory deficit was 100% due to abnormal sensation and severe pain that interfered with all activities. This assessment was then combined with the motor deficits. The MA noted that the maximum impairment cannot exceed an amputation of the right upper extremity and assessed the appellant as 100% RUEI or 60% whole person impairment. Any minor deduction for range of movement would not, in the view of the Appeal Panel, affect or alter the actual assessment of WPI once the sensory deficit assessment was combined with the motor deficit assessment. As Dr Powell observed, no deduction could be made for sensory deficit as a result of the fall on 17 January 2020.
As the Appeal Panel was not satisfied that there was any impairment arising from the fall on 17 January 2020, it is unnecessary to consider whether that fall resulted from the work injury. However, for completeness the Appeal Panel considered the decision of the Court of Appeal in Secretary, New South Wales Department of Education v Johnson (2019) NSWCA 321 (Johnson No 2) and were of the view that the fall on 17 January 2020 fell into the third category of subsequent injury, that is:
“Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
The Appeal Panel considered that there was a lack of causal connection between the original injury and the fall on 17 January 2021 on the basis that the fall would have happened even if the original injury had not occurred. There was no medical evidence that supported any causal connection between the work injury and the fall on 17 January 2020.
In summary, the Appeal Panel considered that there was insufficient evidence that the fall on 17 January 2020 caused any significant alteration on the range of movement in the right shoulder. The assessment of total WPI by the Appeal Panel is 60% WPI in respect of the injury on 27 September 2019.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 June 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 Mohammed Assem 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) |
| Right Upper Extremity | 27 September 2019 | Chapter 2, Table 17-1, p 81 | Chapter 16, Figures 16-40, 16- 43, 16-46, pages 476-479, Figure 16-12, p 456; Figure 16-8a, p 459, Table 16-1, p 438, Table 16-2, p 439, Table 16-3, p 439, AMA5, Table 16-10, p 482 | 60% | 60% | |
| Total % WPI (the Combined Table values of all sub-totals) | 60% | |||||
Carolyn Rimmer
Member
Dr John Brian Stephenson
Medical Assessor
Dr Greg McGroder
Medical Assessor
16 August 2021
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