Mifsud v Pitador Excavations Pty Ltd t/as JD Concrete Pty Ltd
[2021] NSWPICMP 14
•10 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mifsud v Pitador Excavations Pty Ltd t/as JD Concrete Pty Ltd [2021] NSWPICMP 14 |
| APPELLANT: | Joseph Mifsud |
| RESPONDENT: | Pitador Excavations Pty Ltd t/as JD Concrete Pty Ltd |
| APPEAL PANEL: | John Wynyard Roger Pillemer David Crocker |
| DATE OF DECISION: | 10 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Whether AMS misinterpreted the terms of the referral; intention of parties; Bindah v Carter Hold Harvey Woodproducts Australia Pty Ltd considered; Held- terms of referral deficient; agreed intention not addressed by appellant; Skates v Hills Industries Ltd considered; parties to issue an amended referral to rectify deficiency after which, MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 November 2020 Joseph Mifsud, the appellant, lodged an Application to Appeal Against the Decision a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 29 October 2020.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 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.
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 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is a reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 16 October 2020 a delegate of the Registrar referred this matter to an AMS for an assessment of WPI caused by injury on 23 March 2015. The issue raised in the appeal is the interpretation of the wording the referral, which we will consider under ‘Findings and Reasons, ’below.
The referral also noted that the purpose of the referral was as a threshold dispute. It also said:
“The AMS is to assess as the whole person impairment regardless of the date of injury”.
The face of the referral also referred to a Complying Agreement dated 13 June 2017 in the amount of 12% WPI. It is common ground that the injury was to the right shoulder on 23 March 2015.
Mr Mifsud was employed as a concreter who on 23 March 2015 was trying to extract a peg from the ground when he experienced symptoms in his right shoulder. Six months later when he was trowelling and smoothing out concrete he developed pain. He had been aware of some swelling over time at the top of his shoulder.
Following investigations he underwent a surgical procedure in May 2015, without improvement. He continued to have ongoing pain around his right shoulder with symptoms referred down the arm.
Post-operative investigation did not reveal any obvious source for the arm pain, and imaging of the cervical spine showed no abnormality.
Mr Mifsud was therefore reviewed by two separate pain specialists, and a diagnosis of Complex Regional Pain Syndrome (CRPS) was made. Mr Mifsud had also undergone interventional treatment in the form of stellate ganglion blocks and a rehabilitation program, also without any significant improvement.
The AMS found 13% WPI caused to the right shoulder, and nil WPI for CRPS, which the Table 2 certificate indicated “CRPS cannot be confirmed”. A nil finding for WPI to the peripheral nerves was also noted.[1]
[1] Appeal papers page 27.
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.
The appellant did not seek to be re-examined by a member of the Appeal Panel and for the reasons given below, such a re-examination was not necessary.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the AMS that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant submitted that the AMS had misinterpreted the terms of the referral had fallen into error by failing to include WPI assessments with regard to the right elbow and wrist.
The referral
The referral was first issued on 13 October 2020 to the parties for their inspection, as is common practice. Its wording, which we were not privy to, caused some email communication, and an amended referral was agreed and issued to the AMS on 16 October 2020. It sought an assessment of WPI on the following basis:
“Right upper extremity (right shoulder, right elbow, right wrist and peripheral nerves – as a result of CRPS Type 2 (if present))
*Duly amended by consent of the parties 16 October 2020.”
The AMS found that CRPS could not be confirmed in his formal Table 2 certificate, and gave a 0% rating for CRPS. With regard to the right upper extremity (shoulder), he found 13% WPI.
The AMS explained that he had awarded the 13% WPI for the right upper extremity based on restrictions of movement, and given 0% for WPI caused by peripheral nerve and CRPS. He said:[2]
“The critical issue here is whether Mr Mifsud does or does not satisfy the diagnostic criteria for complex regional pain syndrome Types 1 and 2 in Table 17.1 of the SIRA Guidelines, page 81. I note the opinions from two pain management specialists and the detailed and thorough report by Professor Boesel dated 3 March 2020, all supporting this diagnosis.”
[2] Ibid page 25.
The AMS referred to the criteria mandated by the Guides at Table 17.1 (incorrectly describing it as “Table 17.21”) and said he was unable to make a CRPS diagnosis. No challenge has been made to that finding.
The AMS explained that his assessment of the right shoulder had been based on the range of motion he found on examination. Again, no appeal has been made against that finding. He said:[3]
“In the absence of confirming a diagnosis of CRPS, restricted range of motion of the elbow and wrist is not assessable.”
[3] Ibid page 25.
In his summary, the AMS said:[4]
“It would appear at the time of the initial [sic – injury] that Mr Mifsud developed a labral tear and subsequently went on to develop a perilabral cyst. Unfortunately, surgical correction of this has not been associated with improvement in his symptoms and he has gone on to develop a variety of other symptoms which are difficult to explain. Whilst these symptoms have led to a diagnosis of chronic regional pain syndrome, I have not been able to confirm this in my clinical assessment today.”
[4] Ibid page 24.
The respondent has provided the only evidence before us as to how the terms of the referral were agreed. It was set out as follows:[5]
[5] Appeal papers pages 17/18.
“2.17 The Respondent also refers to the email correspondence between the parties and the Commission on 14 - 16 October 2020 where the Respondent objected to the referral to the AMS as originally drafted on 13 October 2020 and sought that the referral be amended to ‘right upper extremity (right shoulder, elbow, wrist and peripheral nerves – as a result of CRPS Type 2, if present).
2.18 This was initially objected to by the appellant worker’s representative on 15 October 2020. The relevant parts of the Respondent’s email response dated 15 October 2020 were as follows:
…The Respondent does not dispute that the right shoulder, right elbow, right wrist and the peripheral nerves were assessed by Prof Boesel – but that assessment was only made on the basis of a finding and diagnosis of CRPS Type 2, not as the result of frank injuries to those body parts. Prof Bosel [sic] diagnosed injury to the right shoulder, with development of CRPS Type 2. Therefore those additional body parts can only be assessed if the CRPS is found to be present by the AMS.
No claim has ever been made for frank injuries to the right elbow, wrist or hand.
Furthermore, no assessment was made by Prof Boesel of the right hand
(assessed at 0%) so this would not form part of the referral.
There is no prejudice to the applicant in the referral being framed in this manner, as it is based on the applicant’s own medical evidence.
2.19 On 16 October 2020, the appellant worker’s representative subsequently consented to the referral to the AMS being amended to the right upper extremity (right shoulder, right elbow, right wrist and peripheral nerves as a result of CRPS Type 2, if present). The referral was amended on 16 October 2020 accordingly.”
Submissions
The appellant’s counsel, Mr McManamey, submitted that the AMS fell into error by not including the impairments caused by the restricted range of motion in the right elbow and the right wrist in his combined table.
The appellant submitted that, properly interpreted, the referral as framed meant that the AMS was to assess the right upper extremity and any impairment resulting from injury thereto. The qualification contained in parentheses, the appellant submitted, could not mean that the right shoulder, right elbow and right wrist could only be assessed if there was a finding of CRPS Type 2. That interpretation would mean that the AMS was limited to awarding WPI only if the presence of CRPS Type 2 were confirmed - even though, the appellant submitted, other modalities were available such as range of movement.
We were referred to Chapter 17 of the Guides, which, the appellant submitted, authorised an assessment on the basis of the range of motion methodology.[6] We were also referred to Chapter 16 of AMA 5 which, it was submitted, allowed an assessment of pain and sensory deficit caused to the upper extremity.[7] Where CRPS was found, the two assessments were able to be combined into one.
[6] Table 17.1 provides that the extremity impairment from the loss of movement of each joint involved in the positive finding of CRPS was to be rated in cases of both Type 1 and Type 2 CRPS.
[7] We presume the appellant was referring to Table 16-10, which gives the criteria for the assessment of impairment from sensory deficits or pain disorders arising from peripheral nerve disorders.
A range of motion assessment is also permitted by Chapter 2 of the Guides[8], which includes Chapter 16 of AMA 5[9]. The appellant submitted correctly that those two chapters did not also require a finding of CRPS.
[8] Entitled “Upper Extremity.”
[9] Also entitled “The Upper Extremity.”
The referral, the appellant argued, accordingly should be read as allowing an assessment of the right shoulder, right elbow and right wrist, whether or not CRPS was present in accordance with Chapter 17 of the Guides and Chapter 16 of AMA 5. The reference to CRPS was only intended to allow the AMS to consider peripheral nerve impairment if the condition was proven to exist.
The AMS found a restricted range of motion in the right shoulder, elbow and wrist, but he did not find CRPS. It followed that there was no assessment of pain and sensory deficit, a finding that was not challenged, the appellant said.
The finding by the AMS of 13% WPI for the loss of motion in the right shoulder was also accepted.
The error made by the AMS was that despite his finding that there had been a loss of range of motion in the right shoulder, he did not certify an equivalent impairment to the right elbow and wrist. Properly understood, the appellant submitted, the referral required an assessment of WPI resulting from the accepted injury to the right shoulder. This the AMS had not done in circumstances where he was obliged to assess “all of the impairment within his expertise”.
The appellant said that although the AMS found that CRPS was not available, he was still required to include an assessment of WPI of the elbow and the wrist, pursuant to the terms of the referral.
Mr McManamey also submitted that the AMS had to consider whether there was a causal connection between the injury to the right shoulder and the impairment in the right elbow and the right wrist. The medical evidence showed that the injury to the right shoulder had materially contributed to those impairments, the appellant contended. Accordingly the AMS had made a demonstrable error in failing to both consider the evidence and to reach a conclusion on whether or not the impairment to the right elbow and right wrist resulted from the injury to the right shoulder.
The assessment should have been made by the application of Chapter 2 of the Guides and Chapter 16 of AMA 5, it was submitted. The range of motion in the elbow and wrist had been recorded by the AMS, and Mr McManamey’s calculations of those measurements came to 8% UEI for the right elbow and 16% UEI for the right wrist, which combined with 21% UEI for the right shoulder would have come to 39% UEI, which would have equated to 23% WPI.
The respondent
We note the respondent’s submissions. It is not necessary to traverse them in detail, as we accept that the appellant has not established any error on the part of the AMS, and the respondent’s submissions are essentially incorporated into our decision.
DISCUSSION
Mr McManamey submitted that the amended referral required some study in order to comprehend its actual meaning. As we understood him, Mr McManamey contended that the referral of the right shoulder, the right elbow and the right wrist under the umbrella of the compensable entity “right upper extremity” intended that the AMS could have, and should have, assessed the range of motion limitations he recorded in each joint of the right arm, and not solely that of the shoulder. Mr McManamey kindly converted the limitations of motion recorded by the AMS to WPI. He argued that the purpose of the referral as eventually framed was simply to enable an assessment to be made for impairment to the peripheral nerves, if CRPS Type 2 had been found.
In Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[10] Meagher JA, with whom Ward and Emmett JJA agreed, said at [22]:
“Those orders [i.e., the directions contained in the referral] are to be construed taking into account the circumstances in which they were made, at least to the extent that those circumstances were known to the parties: (authorities omitted). Those circumstances include the communications between the parties and their representatives which preceded the referral of the dispute to the Commission, and the terms of the Application which referred that dispute.”
[10] [2014] NSWCA 264 (Bindah).
The terms of the Application as originally made in the form was for an assessment of WPI caused by injury to:
“Right Upper Extremities (Shoulder, Elbow, Wrist and Hand).”[11]
[11] Appeal papers page 30.
We have referred to the circumstances regarding the parties’ agreement about the terms of the referral above. We accept that the account given by the respondent may be relied upon. It is clear from the content of the respondent’s reproduced email of 15 October 2020 that the appellant subsequently agreed to the proposed amendment, as the italicised portion of the referral demonstrated. Accordingly, the description of the claim was amended by the removal of the claim for the hand, and the insertion of the condition “as a result of CRPS Type 2 (if present)”.
Whilst the appellant’s submissions set out in broad terms the effect of the Guides and AMA5, they did not come to grips with this agreement. The Application was for an assessment as to whether the degree of permanent impairment was more than 20%, for the purposes of s 39 and s 32A of the Workers Compensation Act 1987 (the 1987 Act), which are concerned relevantly with entitlement to weekly payments of compensation.[12]
[12] Appeal papers page 30.
The form of the referral was regrettable. It was potentially misleading and confusing, as it failed to include the right shoulder injury, liability for which had been accepted, as evidenced by the complying agreement of 13 June 2017.
We note in passing that the AMS was also directed to assess WPI regardless of the date of injury, which is not possible in this jurisdiction. The AMS quite properly ignored that direction.
It is common practice for referrals to issue which specify in parenthesis the specific purpose of the assessment. This often appears in claims regarding the upper or lower extremities, so that a claim for assessment of a worker’s ankle injury, for example, would be referred as “left lower extremity (ankle)”. This practice has had the singular benefit of advising an AMS that, in this example, he was not to assess any other part of the left lower limb.
As the email from the respondent of 15 October 2020 indicated, this was also the intent of the parties in the present case. Thus, as the AMS did not find CRPS, on a strict interpretation of the referral, the AMS ought to have found no WPI established for the right shoulder as well.
Mr McManamey’s submission was that the appellant accepted the measurements of range of motion taken by the AMS (and thus accepted the 13% WPI shoulder assessment). However, he said, the addition of the right elbow and wrist restrictions would have had the effect of increasing the combined value to 23%.
That submission must be rejected. The agreement between the parties was that the nominated three areas of the right upper extremity could only be assessed if CRPS were present. The appellant’s argument was incorrect when it submitted that Chapter 17 authorised an assessment to be made for range of motion based methodology regardless of whether CRPS was found. Range of motion is only available after CRPS has been found. Table 17.1 provides that the diagnostic criteria for CRPS requires there to be found specified symptoms, signs and complaints. If that criteria is established, then an AMS was able to consider range of motion deficits with regard to both Type 1 and Type 2 of CRPS. Chapter 17.5 contains Table 17.1, and provides relevantly that once the diagnostic criteria are established:[13]
[13] Guides page 81.
“Then consider the following in assessing CRPS1:
·If the criteria in each of the sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied, the diagnosis of CRPS1 may be made.
·Rate the extremity impairment resulting from loss of motion of each individual joint involved.
·Rate the extremity impairment resulting from sensory deficits and pain ….
·Combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit ….
·Convert the final extremity impairment to WPI using AMA5 Table 16.3,
(p 439) for the upper extremity and AMA5 Table 17.3 (p 527) for the lower extremity.
Complex Regional Pain Syndrome Type 2, causalgia
For Complex Regional Pain Syndrome Type 2 (CRPS2), the mechanism is an injury to a specific nerve. The methodology in AMA5 (pp 496–97) is to be followed:
·If the criteria in each of sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied and there is objective evidence of an injury to a specific nerve, the diagnosis of CRPS2 may be made.
·Rate the extremity impairment due to loss of motion of each individual joint involved.
·Rate the extremity impairment resulting from sensory deficits and pain of the injured nerves…
·Rate the extremity impairment resulting from motor deficits and the loss of power of the injured nerve according to the determination method in AMA5 Chapter 16, Section 16.5b and Table 16-11a.”
There is accordingly no substance in the argument that the Guides authorised an assessment for range of motion deficits where CRPS had not been established. The appellant sought to avoid that outcome by arguing that the terms of the referral should be construed to read that the requirement for CRPS to be established only related to the claim within the parenthesis for the peripheral nerves. He did not attempt to explain how the claims for the right shoulder, elbow and wrist, which were also within the parenthesis, were exempted from the CRPS condition.
Further, whilst there is no bright line that delineates causation from medical evidence, it is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the 1987 Act.[14] The appellant submitted that the injury to the right shoulder was a material factor in the development of the restricted range of motion in the right elbow and wrist.
[14] Bindah at [110/111] per Emmett JA. Ward and Meagher JJA agreeing. See also Jaffarie v Quality Casting Pty Ltd [2018] NSWCA 88 at [80 - 81] per Leeming JA, Macfarlan and White JJA agreeing.
This claim had not hitherto been made, and accordingly the respondent had not been given an opportunity to consider it. As indicated, we find it difficult to see in any event how such a construction of the referral could have been made by the AMS, as the reference to the elbow and the wrist was contained in the same parenthesis as the reference to CRPS, Type 2.
Both parties submitted that the assessment of the right shoulder was not challenged. The respondent submitted that the finding by the AMS could stand because the AMS was assessing the accepted underlying injury to the right shoulder. As indicated, Mr McManamey submitted that the right shoulder assessment had been properly included as a result of the terms of the referral. Having rejected that argument, the question arises as to the scope of the evaluation sought by the referral.
The AMS took what we regard as a pragmatic and intelligent approach to his task and assessed the impairment caused by the frank injury to the right shoulder, as well as complying with the terms of the referral in finding that there was no CRPS and therefore no WPI. On a strict reading of the referral, it might be argued that in assessing the personal injury the AMS has fallen into error, as no part of the referral as framed made that request of him. However, we noted the concession by the respondent that it was intended that the accepted personal injury to the right shoulder was to be assessed.
In Skates v Hills Industries Ltd[15] Adamson J considered a case which had some similarities to the present, in that the referral omitted an injury to the left wrist, which omission had not been noticed by either party. The AMS included the left wrist in his WPI finding, but the Medical Appeal Panel revoked the MAC, saying that it was “settled law that an AMS is confined by the terms of the referral.”[16]
[15] [2020] NSWSC 837
[16] At [24 (39)].
Adamson J said:[17]
“The question is whether the referral entitled the AMS to assess the degree of permanent impairment arising from parts of the left upper limb which had not been specifically referred, if he was satisfied that they were the result of the injury sustained by the worker…”
[17] At [45].
Her Honour reviewed the relevant authorities and concluded at [73]:
“73. While the Appeal Panel was correct to determined that the AMS had gone beyond the terms of the referral in considering the shoulder, elbow and other fingers and thumb, the Appeal Panel itself was in error in not giving effect to the Employer’s concession that the left wrist ought also to have been referred. When it became aware of the parties’ concession, the Appeal Panel should have reverted to the Registrar to obtain a referral which reflected the parties’ agreement as to the correction required. It was not entitled to ignore the Employer’s concession that the rest should have been included.”
Accordingly we make the following findings:
(a) The amended referral issued on 16 October 2020 failed to include a request for the assessment of WPI caused by personal injury to the right shoulder on 23 March 2015.
(b) It was agreed by the respondent that such an assessment had been intended.
Accordingly, the parties are to lodge with the delegate of the Workers Compensation Division a further amended referral which reflects their agreement by 22 March 2021.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 October 2020 should be confirmed.
The Appeal Panel requests that this determination not be issued until the further amended referral has been received by the delegate.
Finally, Dr Roger Pillemer of the Appeal Panel, in considering the appellant’s condition, would recommend that Mr Mifsud investigate the possibility of his having suffered a thoracic outlet syndrome.
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