Moore v Alwyn Rehabilitation Hospital
[2022] NSWPICMP 98
•29 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Moore v Alwyn Rehabilitation Hospital [2022] NSWPICMP 98 |
| APPELLANT: | Eileen Moore |
| RESPONDENT: | Alwyn Rehabilitation Hospital |
| APPEAL PANEL: | Member Deborah Moore Dr James Bodel Dr Drew Dixon |
| DATE OF DECISION: | 29 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant challenged the assessment as regards the manner in which the Medical Assessor (MA) assessed the right ankle injury; although the MA’s comments on his findings on examination were fairly brief, he used a goniometer and clearly explained the results of his examination; his assessment took place some 18 months after the appellant was seen by her IME, Dr Tong; the appellant exhibited some flexion and extension; as the MA correctly noted: “It is not possible to suffer ankylosis and have a measurable ROM.” Held- Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 January 2022 Eileen Moore (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Frank Machart, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 2 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).
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, the only reason proffered was that “a further assessment be performed in a suitable way and a new certificate issued.” No specific reasons were provided as to why this was necessary. Indeed, the appellant conceded that:
“The members of an appeal panel may form the view that the appellant should be examined by one of its medical members to clinically assess matters such as applicable ranges of movement. The appellant accepts whether this should occur or not is a matter for the panel.”
As the respondent correctly points out:
“The appellant has not challenged the accuracy of those recorded measurements but rather objected to the assessment method that was selected and therefore the Respondent says there is no need for a further assessment…”
We have carefully considered all of the evidence before us, and we are satisfied that we have sufficient information before us to enable us to determine this appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in the manner of his assessment of the right ankle injury.
In reply, the respondent submits that no errors were 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. 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 was referred to the MA for assessment of whole person impairment (WPI) in respect of the right lower extremity (ankle) and scarring resulting from an injury on 21 January 2019.
The MA obtained the following history:
“Mrs Moore was injured on 21/01/2019. She was at work. Her job was housekeeper at Alwyn rehabilitation hospital. She slipped walking to place rubbish into a bin. The surface was wet. She fell. She sustained a fracture of the right ankle. She was admitted to a Strathfield private hospital 2 days later. Open reduction and internal fixation of ankle fracture was conducted. She was transferred to the Alwyn Rehabilitation Hospital where she was an inpatient for 4 to 6 weeks. Walking was assisted, achieved by usage of a boot and a scooter. She was non-weightbearing for 3 months. She had physiotherapy and hydrotherapy. There was additional operation in March 2020, removal of surgical implants. There was better movement and less pain. The ankle was not 100%. Recovery was complicated by unpleasant sensation over the front of the foot, evident since the first operation, and still evident now.”
After setting out details of Mrs Moore’s present treatment, the MA then noted present symptoms as follows:
“Daily pain right ankle. Pain increased when up on her feet. Driving tolerance half an hour. In the last 12 months, pain started to extend up the leg into the thigh. Walking tolerance half an hour. Unpleasant sensation over dorsum of the right foot.”
After setting out details of Mrs Moore’s work history, the MA then looked at the effect of her injuries on her activities of daily living (ADL’s) stating:
“She lives in a 2-storey house with her daughter. She has been widowed for 9 years. She does housework as best she can. Reported inability to mop or lift washing baskets, assisted by her daughter.
She returned to work 2 months after the injury at 4 hours per day. She stopped working at the time of the second operation. No work since.”
The MA then set out his findings on physical examination as follows:
“Slight limp.
Scar on lateral malleolus, slightly uneven scar, cross-hatching from sutures.
There was diminished movement, which I measured with a goniometer at:
Movement. Right Ankle.
Extension. Plantigrade.
Flexion. 40°
Inversion. 30°
Eversion. 10°
There was full movement in the left asymptomatic ankle. There was diminished sensation over the dorsum of the foot, not complete absence.
Dysesthesia.”
The MA then documented the radiological material he had before him as follows:
“23/01/2019, X-ray Right Knee: Patellofemoral joint arthroplasty. No complications evident.
X-ray, Right Ankle 21/05/2020: 1-mm gap medial malleolus to talus. Slightly reduced tibio talar gap on the weightbearing surfaces.”
The MA confirmed: “There was an ankle fracture. There is consequential injury to superficial peroneal nerve.”
He assessed 9% WPI made up as follows:
“Scar. Using Temski, features 1% WPI.
Right Ankle. Assessed as ankle intra-articular fracture with displacement at 8% WPI, Table 17-33.”
In commenting upon the other medical opinions, the MA said:
“Treating Orthopaedic Surgeon, Dr Konidaris: Fall at work on 21/01/2019. Bimalleolar fracture, displaced and required open reduction, conducted at Strathfield Private Hospital.
Dr Anthony Smith, IME, 16/06/2020: Ankle fracture. Removal of hardware few months before. WPI not assessed.
MAC, Dr Lahz, 20/10/2020: Point of MMI had not reached at that stage and declined conducting WPI assessment.
16/03/2020, Dr Tong: Assessed 16% for right lower extremity, intra-articular fracture at 8%, Assessed ROM, substantially diminished movement, extension at 5, flexion at 10, inversion 5, eversion 5, and also noted ankylosis in optimal position at 4%, total combined at 16%.
Comment: It is not possible to suffer ankylosis and have a measureable ROM. Ankylosis means no movement. - The figures of ROM evident to Dr Tong were disproportionate to the pathology, and were not confirmed at the time of today’s assessment, and were not confirmed by Dr Lahz on 20/10/2020 when she was recovering from surgery. Dr Lahz noted right ankle ROM as extension to plantigrade, flexion at 20°, inversion at 20°, and eversion at 15°.
Documentation of ROM by Physiotherapy, 28/06/2019: Described ROM as ‘functional’. Comment: Reasons for substantially diminished movement since that time was not medically determined. There was some improvement subsequently, particularly once implants were removed. This document is in contrast to the ROM evident at the time of Dr Tong’s assessment.
Assessment, 08/04/2019, Dr Konidaris: Ankle movement 5° dorsiflexion through to 35° plantarflexion. Fracture then healed.
IME, Dr Smith, Supplementary Report, 22/07/2021: The doctor had access to x-rays of both ankles dated 05/07/2021, and MAC by Dr Lahz dated 20/10/2020. The doctor noted union of fractures. Displacement not evident on x-rays, presumably referring to x-rays post healing. The doctor commented x-rays, joint gap at 3-mm that Dr Smith felt was normal, and conjecture whether these were weightbearing x-rays. The doctor did not proceed to conduct WPI assessment, and described there was no difference in x-rays of the left and right ankle, and therefore no assessable WPI.
Comment: I did not see the doctor commenting on range of movement, or the fact that this was a displaced fracture. I doubt that operation would have been conducted had the fracture not been displaced at the time of injury.
Summary: Ankle fracture was confirmed. Reasonable ROM was evident to treating doctors. The severity diminished ROM evident to Dr Tong is an outlier.”
The thrust of the appellant’s submissions is that the MA “did not calculate the impairment present using the different alternatives available, as required by 17.2 AMA5 at page 526.”
The appellant added:
“As noted in 3.2 of the Guidelines ‘There are several different forms of evaluation that can be used’ to assess the lower extremity and AMA5 at page 526 - 527 provides that: ‘It is the responsibility of the evaluating physician to explain in writing why a particular method(s) to assign the impairment rating was chosen. When uncertain about which method to choose, the evaluator should calculate the impairment using different alternatives and choose the method or combination of methods that gives the most clinically accurate impairment rating. ... If more than one method can be used, the method that provides the higher rating should be adopted.
The Guidelines also note at 3.5 that ‘the evaluation giving the highest impairment rating is selected’.
That different forms of evaluation exist for ankle fractures is well illustrated by Example 17-10 AMA5 at page 542 which, for that example, explains why the method set out in Table 17-24 (a range of motion assessment) should be used instead of the method set out in Table 17-33 (a diagnostic assessment). Section 17.2f AMA5 at p.533 also confirms that ‘Lower extremity impairment can be evaluated by assessing the range of motion of its joints.’
The assessor used Table 17.33. His certificate makes no reference to Table 17.11 (as modified by Guidelines 3.17) which deals with ankle motion impairments using range of motion measurements.
The assessor’s certificate did note there was ‘diminished movement’ of the joint but the assessor has not then used his measurements of those diminished movements to calculate the WPI on an range of motion basis.
He only used Table17.33 when he should have used both Table 17.11 and Table 17.33.
AMA5 page 526 requires the evaluating physician to explain in writing what [sic] a particular method has been used. This has not been done. Hence an error has been made with respect to the assessment.”
The respondent submits as follows:
“While Clause 17.2 of AMA5 provides a number of alternatives for assessment lower limb impairment, not all of these are relevant to assessments of the ankle. Paragraph 3.2 of the Guidelines says that in general, the method should be used that most specifically addresses the impairment that is present.
Dr Tong, used range of motion to assess WPI and also added impairment for ankylosis of the right ankle. Dr Tong also gave an assessment on the basis of the intraarticular fracture with displacement of the ankle (8% WPI) (the DBE method) but noted that using the range of motion combined with ankylosis gave a higher assessment and so she used the latter method. On the basis of Dr Tong’s report, it can be inferred that she considered that all of the methods she used would be appropriate, unless the assessor found some reason why a method is not appropriate in this particular case.
In the previous MAC, Dr Lahz said ‘I do not agree with Dr Tong that the right ankle is ankylosed. This is patently not the case’. On the basis of the previous MAC, the Respondent says that adding impairment for ankylosis was not open to an assessor.
In the most recent MAC, the MA noted, when discussing Dr Tong’s assessment, that there were clear inconsistencies, with range of motion being disproportionate to the pathology. He compared the range of motion recorded in various reports. He described Dr Tong’s assessment of range of motion as ‘the outlier’. It follows that range of motion was not an appropriate assessment method to utilise. The MA also said it is not possible to have ankylosis and some movement, hence explaining why ankylosis could not be used in the present matter where all assessors detected some movement of the right ankle.
The MA has explained why he did not consider that the method of assessment used by Dr Tong was appropriate. He has used a method which was open to him to use, and it is noted that the method used is the alternative method considered by Dr Tong in her report. Dr Tong did not say that the DBE method was inappropriate, but rather that she selected the range of motion method because it resulted in a higher assessment of WPI. As the Appellant’s assessor appears to have considered that the DBE method was appropriate, it follows that the Appellant cannot object to that method being used by the MA in the absence of any other suitable method. For the reasons outlined above, the Respondent says that the MA made it clear why the other methods used by Dr Tong were not appropriate, and that left the MA with the method which he used.”
We agree with the respondent’s submissions for reasons that follow.
To begin with, the task of an MA is to make an assessment “as they present on the day” (Chapter 1.6 of the Guidelines).
Although the MA’s comments on his findings on examination were fairly brief, he used a goniometer and clearly explained the results of his examination.
His assessment took place some 18 months after the appellant was seen by Dr Tong.
The appellant’s submissions focus on the ROM method of assessment, and in particular the assessment of Dr Tong. There are a number of alternative methods of assessing impairment involving the lower extremity.
In the present case, the appellant exhibited some flexion and extension. As the MA correctly noted: “It is not possible to suffer ankylosis and have a measureable ROM.”
The MA in this case made an assessment described as “ankle intra-articular fracture with displacement at 8% WPI, Table 17-33.” Such a method of assessment was entirely open to him.
For these reasons, we cannot see that the MA erred in the manner or method of assessment.
The MAC issued on 14 December 2021 should be confirmed.
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