Mmem Electrical v Anderson
[2022] NSWPICMP 72
•1 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | MMEM Electrical v Anderson [2022] NSWPICMP 72 |
| APPELLANT: | MMEM Electrical |
| RESPONDENT: | Ryan James Anderson |
| APPEAL PANEL: | Member Carolyn Rimmer |
| DATE OF DECISION: | 1 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Matter referred to Medical Assessor (MA) for assessment of left upper extremity (shoulder) and skin; MA assessed left elbow and neurological dysfunction in the distribution of the axillary nerve; Panel agreed with parties that MA acted beyond his power in assessing left elbow and removed that assessment from the total assessment; Held- by the Panel that MA was entitled to assess neurological dysfunction in the distribution of axillary nerve; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 February 2022 MMEM Electrical (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 January 2022.
The respondent to the appeal is Ryan James Anderson (Mr Anderson).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel 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 on1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Anderson sustained an injury to his left shoulder on 5 October 2021 in the course of his employment as an electrician when he was lifting a pipe which then came into contact with a bracket, causing a dislocation of the shoulder.
The matter was referred to the MA, Dr Tim Anderson, on 4 November 2021 for assessment of person impairment of the left upper extremity (shoulder) and skin.
The MA examined Mr Anderson on 6 December 2021 and assessed 25% upper extremity impairment (UEI) of the left shoulder, 7% UEI of the left elbow and 2% UEI for neurological dysfunction. The combined UEI was 31% which converted to 19% whole person impairment (WPI). The MA assessed 2% for the skin/scarring. The MA then deducted one-third in respect of the left upper extremity which resulted in an assessment of 13% WPI for the left upper extremity. Therefore, the total WPI was assessed as 15% WPI as a result of the injury on 5 October 2012.
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 Mr Anderson 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 Mr Anderson 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 certificate given by the MA that are relevant to the appeal are set out 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 include the following:
(a) the MA did not have jurisdiction to consider WPI of the left elbow and axillary nerve;
(b) In Skates v Hills Industries Ltd (2021) NSWCA 142, Basten JA and Leeming JA found that an Approved Medical Specialist (AMS) erred by failing to be limited to the terms of the referral of a dispute;
(c) in this matter, Mr Anderson made a claim for lump sum compensation in respect of 16% WPI concerning alleged impairments of the left shoulder and skin as assessed by Dr Todd Gothelf in his report of 29 April 2021. No claim was made in respect of any allegation of impairment to the left elbow or axillary nerve;
(d) Mr Anderson was examined by Associate Professor Paul Miniter, who, in a report dated 29 June 2021, assessed 10% WPI of the left shoulder and skin resulting from the injury on 5 October 2012;
(e) neither Dr Gothelf nor Associate Professor Miniter assessed any impairment of the left elbow or axillary nerve/neurological dysfunction;
(f) in the Application to Resolve a Dispute (ARD) Mr Anderson claimed lump sum compensation in respect of 16% WPI. The injury description alleged: “Dislocated left shoulder. At the time he was lifting a pipe, when the pipe came into contact with a bracket this caused his shoulder to dislocate.” There was no allegation of injury to the left elbow or axillary nerve;
(g) on 13 October 2021 a Referral for Assessment of Permanent Impairment to a Medical Assessor was issued by the Personal Injury Commission (Commission) with the referral listing for assessment: “Left Upper Extremity, Skin”;
(h) the appellant objected to the terms of the referral. In a Certificate of Determination – Consent Orders dated 3 November 2021 Member Wright ordered: “Matter remitted to the President for referral to a Medical Assessor of the degree of permanent impairment with respect to the left upper extremity (shoulder) and skin as a result of the injury on 5 October 2012”;
(i) an Amended Referral for Assessment of Permanent Impairment to a Medical Assessor was issued by the Commission on 4 November 2021 with the referral listing for assessment: “Left Upper Extremity (Shoulder), Skin”;
(j) the medical dispute was clearly confined to the degree of WPI resulting from injury to the left shoulder and consequential scarring to the skin. Accordingly, the MA only had power to assess WPI of the left shoulder and consequential scarring to the skin;
(k) despite the terms of the referral, the MA examined the left elbow and assessed 7% UEI of the left elbow. The MA also assessed “neurological dysfunction concerning the area of the distribution of the axillary nerve at 2% UEI;
(l) the MA acted beyond his power in assessing impairment in the left elbow and axillary nerve as these body parts were not referred for assessment nor subject to a claim. On this basis the MA made a demonstrable error and the assessment was based on incorrect criteria;
(m) the assessments in respect of the left elbow and axillary nerve should be removed from the total assessed and the final assessment would be 10% WPI (25% UEI of the shoulder which is converted to 15% WPI less a deduction of one-third under s 323 as assessed by the MA), and
(n) a fresh MAC should be issued assessing WPI of the left shoulder at 10% WPI and 2% for skin which results in a combined total of 12% WPI.
Mr Anderson’s submissions include the following:
(a) Mr Anderson agreed with the appellant’s submission in so far as there was an assessment of the left elbow;
(b) in relation to the axillary nerve, the MA was entitled to assess the neurological dysfunction of the left shoulder and when doing so noted that there was altered sensation around the left shoulder in the distribution of the axillary nerve;
(c) when assessing the left shoulder, the MA was entitled to assess the neurological dysfunction in the distribution of the axillary nerve, and
(d) the error in relation to the left elbow can be rectified by removing that assessment.
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 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 delegate has let through the gateway, it can consider other grounds capable of coming within one or other of the s 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:
“The current issue at hand developed on 05/10/12. At that time he was trying to push a conduit tube up onto a storage rack. The end of the tube got jammed against a bracket holding the rack and this resulted in a jarring sensation which was transmitted through to the left shoulder. This resulted in a further dislocation. Again, there was relocation in hospital although after that, the shoulder continuously subluxed”.
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote:
“Mr Anderson initially sustained an injury to his left shoulder complex in 2003. Following this, there were three surgical procedures. Ultimately this gave him reasonable stability in the shoulder, although in early October 2012 there was further injury to the left shoulder complex which occurred with a relatively minor event.
There were three further surgical procedures under Dr Matthew Howard and three subsequent surgical procedures under Dr Gregg Burrow. This culminated in a fusion of the gleno-humeral joint, which has left Mr Anderson with an extraordinarily stiff left shoulder complex which only moves as far as the relatively limited movement of the scapula will allow.
At this assessment there were some minor features identified with the left elbow.
Similarly, minor neurological features have been identified over the left shoulder complex and with the left middle finger. I can find nowhere in the file where these have previously been mentioned”.
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 accepted the findings on examination made by the MA.
Discussion
The Appeal Panel reviewed the evidence in this matter.
The appellant submitted that medical dispute was clearly confined to the degree of WPI resulting from injury to the left shoulder and consequential scarring to the skin so the MA only had power to assess WPI of the left shoulder and consequential scarring to the skin. The appellant argued that despite the terms of the referral, the MA assessed 7% UEI of the left elbow and “neurological dysfunction” concerning the area of the distribution of the axillary nerve at 2% UEI, thereby acting beyond his power as these body parts were not referred for assessment nor subject to a claim.
Left elbow
Mr Anderson conceded that the assessment made in respect of the left elbow should be removed from the total assessment made in respect of the left upper extremity. However, Mr Anderson contended that the MA was entitled to assess the neurological dysfunction of the axillary nerve.
The Appeal Panel agrees with the parties that MA made a demonstrable error in making an assessment of impairment in relation to the left elbow and that the 7% UEI assessed for the left elbow should be removed from the combined assessment of left UEI.
Neurological dysfunction of the axillary nerve
Under “Findings on Physical Examination” MA noted:
“There was altered sensation around the left shoulder and also over the upper left arm. (This does not seem to have been described before, let alone fully assessed.) This was in the distribution of the axillary nerve.
There was also reduced sensation in the left middle finger. No other neurological features were identified”.
In a report dated 4 November 2019 Associate Professor Miniter noted that he examined Mr Anderson on 15 October 2019. Associate Professor Miniter wrote “There are no obvious neurological lesions and I note reference to the fact that Dr Burrow has preserved the axillary nerve as part of his initial surgical procedure”.
In a report with dated 29 June 2021, Associate Professor Miniter noted that he had re-examined Mr Anderson on 22 June 2021 and commented: “There were no obvious neurological lesions”. Associate Professor Miniter assessed 18% WPI of the left shoulder and 2% for scarring, which resulted in a combined total assessment of 20% WPI. He then deducted 50% pursuant to s 323 of the 1998 Act. which resulted in an assessment of 10% WPI.
Dr Gothelf, in a report dated 29 April 2021, noted that Mr Anderson underwent surgery on 22 February 2013 for a revision arthroscopic stabilisation and then underwent further surgery on 21 May 2014 for a debridement. Mr Anderson underwent further surgery on18 December 2014 for hemicap placement. Dr Gothelf noted that Mr Anderson had persistent left shoulder instability and underwent surgery on 11 February 2016 for a left shoulder fusion. Mr Anderson underwent subsequent surgery for hardware removal on 6 March 2017 and then removal of all hardware 6 May 2019. Dr Gothelf reported that investigations indicated complete fusion and Mr Anderson was back to work and no further surgery was planned.
Dr Gothelf assessed 14% WPI of the left upper extremity and 2% WPI for scarring, which resulted in a combined total assessment of 16% WPI. Dr Gothelf under “Examination of the Upper Limbs” wrote “Sensation is slightly reduced around the incisions but normal distally around the forearm and hand”.
The Guidelines at Guideline 2.9 refer to assessment of UEI due to peripheral nerve disorders and provide:
“…For evaluating peripheral nerve lesions, use AMA 5 Table 16-15 (p 492) together with AMA Tables 16-10 and 16-11 (pp 482 and 484).”
The MA when explaining his calculations referred to chapter 16 of AMA 5 noting after “Neurological dysfunction”:
“This is initially addressed with reference to Fig 16-48 on Page 488 of AMA 5. The area of concern is in the distribution of the axillary nerve. This is further addressed in Table 16-15 on Page 492 of AMA 5. The maximum upper extremity impairment is 5%. This is further modified in Table 16-10 on Page 482. Grade 3 is selected as appropriate with 30% of the maximum. Technically this gives a figure of 1.5% which is rounded up in Mr Anderson’s favour to 2% UEI”.
In relation to the assessment made for neurological dysfunction, the Appeal Panel noted that the axillary nerve is very important in shoulder function.
The MA found altered sensation around the left shoulder and upper left arm. The Appeal Panel accepted the findings of the MA on examination.
The Appeal Panel considered that the MA was correct to assess the neurological dysfunction of the axillary nerve and include it in the assessment of impairment of the left shoulder. The MA did not act beyond his power in assessing impairment in the axillary nerve as such impairment was part of the impairment in the left shoulder.
In conclusion, the Appeal Panel was satisfied that the neurological dysfunction of the axillary nerve was part of the degree of impairment that resulted from the left shoulder injury. The Appeal Panel was satisfied that the MA had applied the correct criteria in assessing and including the neurological dysfunction of the axillary nerve in the left shoulder and that there was no demonstrable error made in the assessment of the neurological dysfunction of the axillary nerve.
The Appeal Panel concluded that after removing the 7% UEI assessed for the left elbow from the combined assessment of left UEI, there was 25% UEI for the shoulder and 2% UEI for the neurological involvement giving 27% upper extremity impairment. This equates with 16% WPI. Applying a one-third deduction pursuant to s 323 of the 1998 Act, this leaves 11% WPI, which is then combined with 2% WPI for the skin. Therefore, the total combined assessment is 13% WPI as a result of the injury on 5 October 2012.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 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 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 WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Left upper extremity | 5/10/12 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433-521 | 16% | 1/3 | 11% |
| Skin | 5/10/12 | Chapter 14 Pages 73-74 | 2% | nil | 2% | |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
Carolyn Rimmer
Member
Dr David Crocker
Medical Assessor
Dr Roger Pillemer
Medical Assessor
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