Metal Manufacturers Ltd v Bell
[2024] NSWPICMP 532
•1 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Metal Manufacturers Ltd v Bell [2024] NSWPICMP 532 |
| APPELLANT: | Metal Manufacturers Ltd |
| RESPONDENT: | Neil Bell |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Andrew Porteous |
| MEDICAL ASSESSOR: | Brian Stephenson |
| DATE OF DECISION: | 1 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of left and right shoulders and scarring; Medical Assessor assessed worker’s elbow and neurological consequences of pain syndrome which were not the subject of a medical dispute or claim; Skates v Hills Industries Ltd; Held – Medical assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 April 2024 Metal Manufacturers Ltd (Metal Manufacturers) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Tim Anderson, who issued a Medical Assessment Certificate (MAC) on 6 March 2024.
Metal Manufacturers relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor assessed a body part not referred for assessment. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Bell was employed by Metal Manufacturers as an electrical wholesaler. On some occasions he was required to undertake delivery driving. He suffered an injury to his left shoulder on 2 February 2018 when he lost his footing while climbing into a truck. He claimed permanent compensation in respect of an injury to his left upper extremity (shoulder), a consequential condition in his right upper extremity (shoulder) and scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI).
On 18 December 2023 a Member of the Personal Injury Commission determined a dispute between the parties in an oral decision. She determined that the claim should be remitted to the President to be referred to a Medical Assessor in respect of the injury to Mr Bell’s left upper extremity (shoulder) and scarring and a consequential condition in his right upper extremity (shoulder).
The Medical Assessor assessed 20% whole person impairment (WPI) in respect of Mr Bell’s left upper extremity, including an assessment in respect of his elbow as well as that for his shoulder. He deducted 1/10th of that amount under s 323 of the 1998 Act, resulting in an assessment of 18% WPI. The Medical Assessor assessed 1% WPI for the right upper extremity shoulder, but deducted the full amount under s 323, and assessed 2% for scarring under the TEMSKI.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Bell to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Metal Manufacturers submitted that the Medical Assessor erred in diagnosing a chronic pain syndrome and resulting impairment when none of the other examiners had assessed a condition of that kind. It submitted that the Medical Assessor was an error to assess Mr Bell’s left elbow and to provide an assessment for neurological dysfunction.
Mr Bell said that there was no demonstrable error nor the application of incorrect criteria and that the MAC should be confirmed. No substantive submissions were made on his behalf.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
The MAC
The referral asked the Medical Assessor to assess Mr Bell’s left upper shoulder, right upper shoulder (identified as a consequential condition) and scarring. He set out the terms of the referral at the beginning of the MAC and he noted the assessments made by the independent medical examiner is retained by the parties.
The Medical Assessor set out the history of the injury on 2 February 2018, when Mr Bell was left hanging by his left hand, resulting in a city, wrenching and twisting injury of the left shoulder, which caused anterior dislocation. He summarised the treatment and noted that it was identified that Mr Bell probably developed complex regional pain syndrome (CRPS). The Medical Assessor summarised the surgical treatment that Mr Bell underwent and noted that Mr Bell is now under the care of a pain management physician. He recorded that Mr Bell had several dislocations of his left shoulder when he was aged 19. He had a good result from surgery by Dr Goldberg until the time of the injury in February 2018.
Describing his examination, the Medical Assessor set out his observations of Mr Bell’s cervical spine and upper limbs. He set out the range of movement of both Mr Bell’s shoulders and elbows. He said:
“At the shoulders there was gross muscle wasting on the left with an extensive oblique scar running upwards from the anterior axillary line. The scar was partially recessed and widened. He expressed a lot of concern about this.
An issue that does not seem to have been described by any of the other assessing specialists was that he had very obvious increased sweating of the left arm, together with a blotchy colour change. No other specific features of Complex Regional Pain Syndrome were identified.
In general, sensation to pinprick was globally dull throughout the left forequarter. Reflexes were conducted very cautiously and seemed to be reasonably equivalent at the elbows (C5 and 7) and at the wrists (C6).”
Summarising the injuries and diagnoses, the Medical Assessor said:
“Mr Bell gives a history of a wrenching injury to his left shoulder complex, which occurred in early February 2018. This unfortunately resulted in a dislocation of the left shoulder. There is a history of extensive previous dislocations of the shoulder many years beforehand, which was managed by a stabilisation procedure, which had given him a good result up until this time.
A further surgical stabilisation procedure was attempted but unfortunately, this did not help Mr Bell since there was non-union of the associated graft. The internal fixateurs were therefore removed and his further clinical management remained relatively conservative, although with extensive input from different Pain Management Groups. The final surgical procedure of the left shoulder was conducted in June 2020 by Specialist Orthopaedic Surgeon, Dr Wade Harper, which is reported to have given Mr Bell limited minor improvement. Nevertheless, at this assessment he had very gross dysfunction of the left shoulder complex.
A claim has been registered about a ‘consequential’ injury to the right shoulder. In trawling through the extensive (very extensive) clinical file, there is only very limited comment about dysfunction of the right shoulder. This features mostly in a report of early December 2020 by his General Practitioner, Dr John Rizzuto. This issue also is briefly suggested by one of the Pain Management Physicians. This apparently has resulted in radiological investigation in early January 2021, where a plain x-ray of the right shoulder was reported as normal and an MRI scan demonstrated minor tendinopathy of the supraspinatus and subscapularis.
The General Practitioner notes also frequently describe a pain disorder which is also described in the Specialist Pain Management reports. This, however seems to be discounted by both of the other assessing specialists, Specialist Orthopaedic Surgeons, Dr James Bodel and Dr Michael Shatwell in their respective reports of 02/12/22 and 14/06/23. Nevertheless, at this assessment, there were definite features of a chronic pain condition with some features of Complex Regional Pain Syndrome, although insufficient to fully diagnose this condition.”
The Medical Assessor said with respect to consistency of presentation:
“This was difficult. It was very difficult to keep Mr Bell on track and he would frequently launch into extensive discourse about how badly he had been treated. It seems evident that whatever else is happening, there is likely to be significant psychological magnification of his physical circumstances. I gained the impression that he is also very difficult to manage clinically and this seems to be borne out by extensive comments in the General Practitioner notes where he is recorded as literally storming out of the consultation room.”
Explaining his calculations, the Medical Assessor converted his assessments of the range of motion of Mr Bell’s shoulders and left elbow to WPI. He said:
“Neurological Dysfunction. At this assessment it was fairly obvious that the general trophic state of his left arm was far from normal, with very obvious blotchiness, sweating, a lot of generalised tenderness and also coldness. These features tend to suggest the existence of Complex Regional Pain Syndrome but were insufficient to fully diagnose that condition. Nevertheless, as frequently described by his treating General Practitioner over many years and also several of the Pain Management Physicians, he does have a chronic pain condition. In order to assess this, reference is made to AMA 5 Page 492, Table 16-15. This pain condition extends throughout the whole of the left forequarter. From this table, this therefore has an effect on the median nerve above the mid-forearm and similarly, above the forearm with the radial and ulnar nerves.”
The Medical Assessor set out his calculations, assessing 10% upper extremity impairment (UEI) for chronic pain by reference to the median nerve at above the forearm, the radial nerve, and the ulnar nerve. Combining that result with 19% UEI for the left shoulder and 10% UEI for the left elbow, the Medical Assessor reached a sub total of 34% UEI or 20% WPI for the left upper extremity. He said:
“Right Shoulder. The only finding at this assessment was very minor restriction of elevation
of the right shoulder, which gave an upper extremity impairment of 1%. From Page 439, Table 16-03, this converts to 1% WPI.
Scarring. This is addressed in the SIRA Guidelines Page 74, Table 14.1. There is extensive scarring over the anterior of the left shoulder complex, running from the upper axillary line obliquely. This scar is widened, recessed, slightly pigmented and causes him a lot of concern. He is easily able to identify the area. Normally it would be fully covered. No further clinical management is indicated and the scar itself does not cause any significant restriction of activities of daily living. With these features, it is assessed that he has a reasonable whole person impairment of 2%.”
Comparing his assessment to those of Dr Bodel and Dr Shatwell, the Medical Assessor said:
“Both specialists did not demonstrate any CRPS features, neither did either of them describe the very obvious chronic pain condition which existed at this assessment. Therefore, because of the impairment at this assessment for the chronic pain condition, the whole person impairment which I have assessed has been greater.”
The dispute
After left shoulder surgery on the day of the injury and further open stablisation surgery performed by Dr Popoff, Mr Bell was referred to Dr Yu for treatment of neuropathic pain in late 2018. Dr Yu performed a series of stellate ganglion blocks in late 2018 and early 2019 and recommended a further series in 2020 with pulsed radiofrequency neurotomy, undertaken in 2021. His diagnosis was left neuropathic pain with signs of sympathetic nerve dysfunction. He did not formally diagnose CRPS.
Metal Manufacturers’ insurer arranged for Dr Shatwell to examine Mr Bell and he reported on 6 December 2019. Dr Shatwell noted that Mr Bell had been treated for CRPS without benefit.
Mr Bell claimed compensation based on an assessment by Dr Bodel in his report dated 2 December 2022. Dr Bodel assessed 15% WPI, being comprising 11% for the left upper extremity, 2% for the right upper extremity, and 2% for scarring. The assessment of Mr Bell’s upper extremities were made in respect of his shoulders only.
Dr Bodel noted that Mr Bell was told that he had CRPS but said although there were significant symptoms, there were insufficient signs to make the assessment in accordance with the Guidelines. He said he agreed with Dr Shatwell that there were no signs of the condition.
The criteria in Chapter 17 of the Guidelines for the assessment of permanent impairment as a result of CRPS are strict. There is agreement among those who have examined Mr Bell that his complaints do not fulfil the criteria for assessment of CRPS under the Guidelines.
The definition of medical dispute appears in s 319 of the 1998 Act and includes the degree of permanent impairment suffered by a worker.
In Skates v Hills Industries Ltd[3](Skates), Basten JA said:
“… the jurisdiction of the Commission in relation to a claim for lump sum compensation under s 66 of the Workers Compensation Act was not at large. The claim was made with respect to a specific injury which occurred in the course of employment on a specified date. The form for an application to resolve a dispute required identification of the date of the injury, a description of the injury, and a description of how the injury occurred.”
[3] [2021] NSWCA 142 at [48].
Leeming JA said:
“The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute.”
Leeming JA said that in most cases, the dispute will be defined by competing claims.
In this case, as a result of a determination by a Member of the Commission, the competing claims set out in the medical reports had been reduced to clear orders which formed part of the file. The only referrals made by the Commission were with respect to Mr Bell’s shoulders and scarring.
Mr Bell has never made a claim for permanent impairment as a result of any injury to his elbow. There is no medical dispute in respect of it and the Medical Assessor was in error to assess permanent impairment. The Medical Assessor did not explain why he assessed Mr Bell’s left elbow and provided no reasoning to link his observations to the injury. We have deleted the assessment with respect to the elbow in the attached MAC.
There was no also claim made with respect to CRPS. The parties’ independent medical examiners were unable to make the diagnosis, as is clear from the documents in the file. The Medical Assessor determined that Mr Bell suffered a chronic pain condition and sought to find a way to assess it, which he did by reference to the function of nerves in Mr Bell’s shoulder. There was no medical dispute and no referral in respect of such a condition and the MA was in error to assess it.
Mr Bell did not appeal in respect of the Medical Assessor’s deduction under s 323 of the whole amount assessed in respect of his right shoulder.
The Medical Assessor’s assessment in respect of Mr Bell’s left shoulder and scarring was the same as that made by Dr Bodel. The difference between their overall assessments is that the Medical Assessor did not measure any permanent impairment as a result of Mr Bell’s right shoulder. The assessment of 19% upper extremity impairment converts to 11% WPI. No appeal was raised in respect of the deduction under s 323 in respect of the previous condition of Mr Bell’s left shoulder. A deduction of one-tenth leads to an assessment of 10%. Combined with 2% for scarring, Mr Bell’s WPI is 12%.
For these reasons, we have determined that the MAC issued on 6 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5928/23 |
Applicant: | Neil Bell |
Respondent: | Metal Manufacturers Limited |
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 Medical Assessor 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) |
| Left upper extremity (shoulder) | 2/2/2018 | Chapter 2, p 10. | F16-40 p 476 F16-43 p 477 F16-46 p 479 Table 16-3 p 439 | 11 | 1/10th | 10% |
| Right upper extremity (shoulder) | 2/2/2018 | Chapter 2, p 10. | F16-40 p 476 F16-43 p 477 F16-46 p 479 Table 16-3 p 439 | 1 | 10/10th | 0% |
| Scarring (TEMSKI) | 2/2/2018 | Chapter 14 | N/A | 2 | Nil | 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
0
3
0