Milovanovic v The Ubeeco Group Pty Ltd
[2022] NSWPICMP 51
•16 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Milovanovic v The Ubeeco Group Pty Ltd [2022] NSWPICMP 51 |
| APPELLANT: | Vladan Milovanovic |
| RESPONDENT: | The Ubeeco Group Pty Ltd |
| APPEAL PANEL: | Member Marshal Douglas Dr Roger Pillemer Dr Margaret Gibson |
| DATE OF DECISION: | 16 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant worker referred to Medical Assessor (MA) for assessment of whole person impairment (WPI) relating to injuries to cervical spine and right shoulder and consequential condition in left shoulder; appellant contended that MA’s assessment of permanent impairment of cervical spine was not done in accordance with correct criteria because MA did not provide specific figures for restriction of range of motion of cervical spine and did not consider non-verifiable radicular complaints; appellant further contended that MA erred when making a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for prior injury to right shoulder because MA merely assumed by virtue of the occurrence of a prior injury that there should be a deduction; Appeal Panel found MA complied with [4.17] and [4.18] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment with respect to assessment of WPI due to cervical spine, and there was no error with respect to the MA’s assessment of the cervical spine; Held- by the Appeal Panel that the MA made deduction under section 323 of the 1998 Act based on an assumption and that consequently Medical Assessment Certificate contained a demonstrable error; Appeal Panel corrected that error. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 December 2021 Vladan Milovanovic (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 7 December 2021.
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 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 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment with the Ubeeco Group Pty Ltd (the respondent) on 5 September 2018, working as a labourer. The appellant suffered an agreed injury to his right shoulder due to the work he performed for the respondent. The appellant also claimed he suffered an injury to his cervical spine as a consequence of that work and a consequential condition in his left shoulder due to the agreed injury he suffered to his right shoulder.
Relying on a report he obtained from orthopaedic surgeon Dr Drew Dixon, dated 23 October 2021, who had examined the appellant on 14 October 2021 at the request of his solicitors and who assessed him to have 15% whole person impairment (WPI) relating to his cervical spine and shoulders, the appellant claimed compensation of $36,230 from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for the permanent impairment he claimed to have as a result of his injury. The respondent’s insurer denied his claim, following which the appellant initiated proceedings in the Personal Injury Commission (the Commission).
The matter was then referred to Member Ms Rachel Homan who conducted an arbitration on 10 May 2021. The Member subsequently issued a Certificate of Determination on 21 May 2021 and a Statement of Reasons. In her Statement of Reasons she identified the issues in dispute between the parties were whether the appellant sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent, whether the appellant sustained a consequential condition affecting his left shoulder as a result of the injury to his right shoulder, and the degree of permanent impairment of the appellant resulting from his injury.
The Member found the appellant sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(ii) of orkers Compensation Act 1987and that he also suffered a condition affecting his left shoulder as a result of the injury to his right shoulder. The Member also confirmed that the parties agreed the appellant had sustained an injury to his right shoulder.
The Member ordered that the matter be remitted to the President so that it could be referred to an MA to assess the WPI the appellant had from the injury he suffered. The Member identified in the Certificate of Determination that the body parts the MA was to assess were as follows:
“Right upper extremity (shoulder)
Cervical spine
Left upper extremity (shoulder) – consequential condition”
As mentioned, the MA issued the MAC on 7 December 2021. He certified that the appellant had 7% WPI from his injury, comprised of 0% due to the cervical spine, 5% due to the right upper extremity and 2% due to left upper extremity. With respect to the assessment of the appellant’s WPI due to his right shoulder, the MA certified that a “previous injury, pre-existing condition or abnormality” in the appellant’s right shoulder directly contributed to the appellant’s WPI to the extent of 1/10th. The MA noted in the table appended to the MAC that if that deduction were to be made pursuant to s 323, the result would be 4.5% WPI which when rounded equated to 5% WPI. In other words, although the MA considered that a deduction of 10% was to be made under s 323(1) of the Act, on account of a previous injury, pre-existing condition or abnormality in the appellant’s right shoulder, that deduction made no difference to the ultimate result.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel considered the material before it is sufficient for the Appeal Panel to determine the appeal.
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 appellant’s appeal relates to the MA’s assessment of his WPI due to his cervical spine and due to his right shoulder.
Relevant to that, the MA recorded that the appellant reported symptoms of discomfort in his posterior cervical spine which fluctuated in intensity and which he experienced on the right side of his neck. The MA recorded that the appellant reported experiencing significant discomfort over the anterior subacromial space of his right shoulder and which he mainly experienced when lifting heavy objects or moving his right shoulder towards the horizontal. The MA recorded that the appellant described experiencing intermittent paraesthesia every two to three days involving the fifth, fourth and third fingers of his right hand. The MA noted that this symptom was not present during his examination of the appellant.
The MA noted that orthopaedic surgeon Dr Mathew Giblin had reviewed the appellant in 2010 when the appellant was complaining of low back pain and discomfort in the right shoulder associated with heavy lifting. The MA noted that Dr Giblin observed significant restriction of movement of the appellant’s right shoulder with flexion only to 110 degrees but normal rotation. The MA noted that Dr Giblin had assessed the appellant had 7% WPI relating to “permanent range of motion loss of the right shoulder”. The MA further noted that at the time of his examination of the appellant, the appellant reported that the symptoms in his rights shoulder about which he saw Dr Giblin settled after many months and he was able to continue work.
The MA’s findings from his examination that were relevant to the assessment of the appellant’s cervical spine were as follows:
“On examination of the cervical spine, at the time of today’s assessment there is no evidence of palpable or paravertebral muscle spasm or guarding. He demonstrates a symmetrical restriction of active range of motion of neck movement in all planes including flexion and extension and lateral flexion and rotation to the right and left to three-quarters of normal range.
There is no asymmetric wasting of the right or left shoulder girdle. All deep tendon reflexes of the right and left upper extremities are symmetrically present and equal and there are no abnormalities of tone or sensation in the upper extremities. There is no wasting of hand musculature.”
The MA provided the following “summary of injuries and diagnosis”:
“Mr Milovanovic did have a history in 2010/11 of work related right shoulder injury with scan evidence of minor subacromial bursitis and impingement with symptoms settling within a matter of months. He was, however, assessed as demonstrating a 7% whole person impairment at that time.
During the course of his working duties on approximately 22 November 2018
Mr Milovanovic noted discomfort in his right shoulder and some days later some intermittent paraesthesia involving the right upper limb and forearm localised to the right 5th, 4th and 3rd fingers. Such sensory symptoms are not present today. There was also the onset of cervical neck pain soon after the commencement of right shoulder discomfort and in 2019 without specific injury similar but lesser symptoms of discomfort in the left shoulder, presumably due to significant overuse of the left upper extremity.Despite conservative management the Applicant’s symptoms have continued. He has
normal nerve conduction studies. He has undergone various specialist reviews relating to the right and left shoulder and cervical spine with no operative intervention. There is a continuing restriction of terminal range of motion of the right and left shoulder but with no distal neurological symptoms or signs at the time of examination. There is clinically no evidence of radiculopathy in the right or left upper extremity.
Mr Milovanovic continued to work on light duties but is no longer working. He states that he was retrenched from his workplace early in 2020.
He continues to drive a car short distances and can perform all his own self-care activities of daily living.”
As mentioned, the MA assessed the appellant had 0% WPI with respect to his cervical spine. The MA explained that at the time he conducted the assessment, the appellant exhibited symmetrical reduction of active range of motion of the cervical spine with no evidence of palpable or paravertebral muscle spasm or guarding. The MA explained that the appellant did not exhibit any clinical symptoms or signs that would satisfy the definition of radiculopathy provided at [4.27] of the Guidelines and that the appellant did not exhibit any loss or asymmetry of reflexes. The MA said that there was no evidence of the appellant having muscle weakness or reproducible sensory loss that could be anatomically localised to an appropriate spinal root distribution. The MA explained that the appellant did not have asymmetrical muscle wasting that could not be explained by the appellant’s right handedness. The MA concluded that the appellant met the criteria for DRE Cervical Category I, which attracts a rating of 0% WPI.
As also mentioned, the MA considered the appellant had either a prior injury to or pre-existing condition or abnormality in his right shoulder and the MA made a deduction under
s 323(2) in the order of 10% to the WPI. The MA explained he did so because “there has been a previous assessment of 7% whole person impairment as a permanent injury to the right upper extremity”. This however, made no difference to the result, because, as already noted, when the deduction was made a fraction resulted that when rounded up produced the same figure the MA had assessed was the appellant’s WPI of his right shoulder prior to the deduction being made, that is 5% WPI.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the MA failed to record the actual range of motion in relation to his cervical spine. The appellant submitted that he was entitled to know what the actual range of motion was of his cervical spine and that the MA’s failure to include this in the MAC was procedurally unfair and amounted to a demonstrable error.
The appellant further submitted that it was unclear from the MAC whether the MA had considered non-verifiable radicular complaints. The appellant noted that the MA had taken a history that he had intermittent paraesthesia but the MA failed to consider whether or not there were any radicular symptoms in the upper limbs that would constitute non-verifiable radiculopathy. The appellant submitted that, as a consequence, the MA had not made his assessment based on correct criteria.
The appellant also submitted that the deduction the MA made under s 323 with respect to the assessment of the impairment of his right shoulder was based upon a hypothesis or assumption because there was no evidence that any prior injury, pre-existing condition or abnormality caused or contributed to his current impairment. The appellant submitted that the MA incorrectly formed the view that a deduction of 1/10th in relation to the right shoulder was mandatory.
In reply, the respondent noted that the MA recorded the appellant’s range of motion of his cervical spine was three quarters of the normal range of movement and that the appellant had a symmetrical reduction of active range of movement. The respondent referred to [4.17] of the Guidelines which stipulates the preferred method for recording the restriction of range of movement, and the respondent submitted that the manner in which the MA recorded the appellant’s restriction of movement of the appellant’s cervical spine complied with the preferred method.
The respondent submitted that the MA applied the correct criteria when considering whether the appellant had non-verifiable radicular complaints. The respondent said that the MA’s findings from his examination of the appellant did not reveal the existence at the time of examination of non-verifiable radicular complaints. The respondent submitted that, by virtue of [4.18] of the Guidelines, the MA was unable to conclude that the appellant’s condition correlated with the criteria for DRE II.
The respondent submitted that the MA considered all the medical evidence available to him, which confirmed the appellant suffered an impairment of the right shoulder from a previous injury. The respondent said that based on the report of Dr Giblin of 12 December 2011, in which Dr Giblin opined the appellant had a permanent impairment of his right shoulder, “it can be assumed that the appellant continued to suffer from a right shoulder impairment to date”. The respondent submitted that it would be appropriate for a deduction to be made.
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.
The Guidelines at [4.17] read as follows:
“The preferred method for recording ROM is as a fraction or percentage of the range or loss of the range. For example, either ‘cervical movement was one half (or 50%) of the normal range of motion’ or ‘there was a loss of one half (or 50%) of the normal range of movement of the cervical spine’.”
The MA in the MAC clearly stated that the appellant had symmetrical restriction in all planes of motion to the extent of three-quarters of normal range. The style by which the MA described the appellant’s restriction of the range of motion of his cervical spine was in accordance with the method stipulated in the Guidelines at [4.17] as the preferred method. Insofar as the MA has complied with that instruction of [4.17], the MA has not denied the appellant procedural fairness.
The Appeal Panel further observes that in order for a worker to be placed within DRE Cervical Category II as a consequence of restriction of the range of motion of cervical spine the restriction needs to be asymmetrical. The MA found that was not to the case with the appellant.
The Guidelines at [4.18] read as follows:
“DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present. In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips. In assigning category DRE II, the assessor must provide detailed reasons why the category was chosen.”
The MA took into account all relevant clinical features the appellant exhibited at the time of examination and the MA considered whether those correlated with the criteria specified for DRE Cervical Category II, which are:
“Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by
a physician, asymmetric loss of range of motion or non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity.”
The MA recorded that the appellant did not exhibit muscle guarding or spasm at the time of examination nor did he exhibit asymmetric loss of range of motion. The appellant did not complain of experiencing pain in the distribution of a nerve root. The appellant complained of experiencing intermittent symptoms in his third, fourth and fifth fingers of his right hand, but he did not complain of that at the time of examination nor did he exhibit the presence of that at the time of examination. The MA found that the appellant had no distal neurological symptoms or signs at the time of examination.
Accordingly, consistent with the instruction of [4.18] of the Guidelines, the MA could not assess the appellant as corresponding with DRE Cervical Category II on the basis of non-verifiable radicular complaints that were not present at the time the MA conducted his assessment.
In the Appeal Panel’s view the MA was correct to correlate the appellant’s signs and symptoms with the criteria for DRE Cervical Category I. The Appeal Panel discerns no demonstrable error in the MAC as a consequence of the MA’s assessment of the appellant’s WPI relating to his cervical spine and the Appeal Panel considers that the MA has made his assessment of the appellant’s cervical spine based upon the correct criteria and has applied those criteria correctly.
The Appeal Panel however considers that the MA did make an error with respect to his finding that a proportion of the appellant’s WPI relating to his right shoulder was due to a previous injury or pre-existing condition or abnormality. In order that a deduction can be made under s 323(1) of the 1998 Act it is necessary that any prior injury or pre-existing condition or abnormality contributes to the worker’s post injury impairment. In other words a previous injury or pre-existing condition or abnormality must make a difference to the worker’s current impaired state.[1] The consideration of whether that is the case cannot be based on assumption or hypothesis.[2] It cannot be assumed from the fact that a worker has had a prior injury or a pre-existing condition that a proportion of the worker’s impairment is due to that prior injury or pre-existing condition.
[1] Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45]
[2] See Cole v Wenaline Pty Ltd [2010} NSWSC 78 and Ryder’s case
Here the evidence establishes that the appellant did suffer a previous injury and that, in 2011, that injury impaired the movement of his right shoulder such that he then had a permanent impairment of his right shoulder of the order of 7% WPI. However, that was then and, as said, the matter must be considered based on what presently is the situation. That is does the appellant’s previous injury more than 10 years ago which resulted in his then suffering a permanent impairment of his right shoulder, contribute now to his present impairment of his right shoulder following the injury he suffered due to his employment with the respondent. It cannot be assumed it does. It must be demonstrated from the evidence that it does.
In the Appeal Panel’s view, the MA has just assumed, based on Dr Giblin in 2011 assessing the appellant had a 7% WPI from an injury to his right shoulder from an earlier injury, that the earlier injury must presently be contributing to the impairment the appellant has in his right shoulder. However, the material before the MA did not reveal that was the case. The MA did not explain how that previous injury presently contributes to the appellant’s impairment of his right shoulder.
In the circumstances, the Appeal Panel considers that the MA did make an error by making a deduction under s 323(1) of 10%.
That being the case the Appeal Panel is required to revoke the MAC and correct that error. The correction of that error however does not make a difference to the outcome of this matter in that if no deduction is made the WPI of the appellant’s right upper extremity (shoulder) remains at 5%.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 December 2021 should be revoked, and a new MAC issued, so as to correct the error relating to the deduction the MA made under s 323(1) of the 1998 Act, but the Appeal Panel repeats, that this correction does not change the outcome. 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 Ian Meakin and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Cervical spine | 22/11/2018 | Chapt 4, pages 26-33 | Table 15.5 | 0% | - | 0% |
| 2. Right upper extremity (shoulder) | 22/11/2018 | Chapt 2, pages 13-15 | Figures 16.40 to 16.46 AMA 5, and Table 16.3 | 5% | - | 5% |
| 3. Left upper extremity | 22/11/2018 | Chapt 2, pages 13-15 | Figures 16.40 to 16.46 AMA 5, and Table 16.3 | 2% | - | 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% WPI | |||||
Marshal Douglas
Member
Roger Pillemer
Medical Assessor
Margaret Gibson
Medical Assessor
14 March 2022
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