Mullen v Australian Roofing & Cladding Pty Ltd
[2021] NSWPICMP 185
•30 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mullen v Australian Roofing & Cladding Pty Ltd [2021] NSWPICMP 185 |
| APPELLANT: | Robert Ross Mullen |
| RESPONDENT: | Australian Roofing & Cladding Pty Ltd |
| APPEAL PANEL: | Member Deborah Moore Dr Gregory McGroder Dr Drew Dixon |
| DATE OF DECISION: | 30 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) erred in the manner in which he assessed whole person impairment (WPI) in respect of the right upper extremity; appellant’s submissions no more than mere disagreement with the MA’s assessment which was conducted well over one year after the other medical opinions relied on by both parties; Held - nothing in all the evidence disclosed any error by the MA; Glenn William Parker v Select Civil Pty Limited applied; Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 July 2021 Robert Ross Mullen (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr SK Cyril Wong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 10 June 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, no clear reasons were given as to why this was necessary. The appellant simply said: “The appellant submits that the MAC should be revoked and that the Appellant be reassessed by the MA or in the alternative that a new MA who is a member of the Appeal Panel.”
Having carefully considered all of the evidence, we are satisfied that we have sufficient evidence before us to enable us to determine the 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 in which he assessed whole person impairment (WPI) in respect of the right upper extremity.
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 respondent was referred to the MA for assessment of WPI in respect of the right upper extremity resulting from an injury on 6 August 2018.
The MA obtained the following history:
“On 6 August 2018, Mr Mullen was working on the roof of a house. A clip lock bracket for securing a roof sheet sprang back and hit his right wrist which became painful and swollen immediately. He attended Gosford hospital where a brace was put on his wrist after imaging studies. He was referred to orthopaedic surgeon Dr Stuart Gray. MRI was ordered and he had several modes of physiotherapy afterwards with no success. Mr Mullen was referred by his general practitioner Dr J Dekock at Erina to orthopaedic surgeon Dr Steve Marchalleck. On 23 November 2018, Dr Marchalleck informed Mr Mullen that he had a combination of broken bones and torn ligaments and recommended an arthroscopic assessment and debridement of the joint. The doctor on 5 December 2018 performed a right wrist arthroscopy and debridement of volar and dorsal synovitis and TFCC (triangular fibrocartilage complex) tear. Mr Mullen underwent post-operative physiotherapy and gym exercises. On 19 March 2019, Dr Marchalleck advised that he had reached maximum recovery for his right wrist strength and mobility and had no capacity for his pre-injury duties.”
Present treatment was noted as follows:
“Mr Mullen is at present having no specific treatment for his right wrist. Mr Mullen now takes Nurofen and Panadol daily for pain. He also takes some anti-inflammatory medication when necessary. He is currently on anti-depressant.”
As regards current symptoms, the MA said:
“Mr Mullen complains of constant pain at the right wrist with fluctuating intensity from mild to moderate. The pain is more severe at night. He now works 4 hour a day as a handy man. The right wrist has more pain after a day’s work. There right wrist has stiffness. He has abnormal sensation at whole of the right hand but it is mainly at the right thumb. The right thumb has numbness.”
As regards his social activities and activities of daily living (ADL’s) the MA said:
“Mr Mullen lives with his wife with their 5 children. Since the injury he has stopped surfing and playing golf. The right wrist injured has compromised his ability in performing domestic duties.”
Findings on physical examination were reported as follows:
“Mr Mullen appeared well in no apparent physical distress. He was walking normally. He sat comfortably throughout the interview.
Wrists - The wrists had no apparent deformity. The goniometric measurements obtained in this examination are as tabled below.
Peripheral nerve – There was numbness at the lateral part of the right thumb at the distribution of the lateral palmar branch of the median nerve and it had greater than 1cm two point discrimination. The sensory loss was rated as grade 3 at 50% of the max impairment of 7% UEI = 4% UEI (rounded) based on AMA5 T16-15.”
The MA assessed 8% WPI in respect of the right upper extremity, adding:
“In making that assessment I have taken account of the following matters:
The right upper extremity has range of motion injury to the wrist at 9% UEI based on goniometric measurements obtained in this examination. It has sensory loss at the right thumb at 4% UEI. The total impairment = Combine 9% and 4% above = 13% UEI equivalent to 8% WPI.”
The MA then turned to consider the other medical opinions, stating:
“On 26 February 2020, Dr Youssef Gabriel assessed the WPI at 24% WPI. He reported the right wrist with 10o extension, 70o flexion, 20o ulnar deviation and 20o radial deviation with sensory deficit on both sides of the thumb. He further assessed right hand power deficit at 10% UEI. He made no apportionment.
On 24 April 2020 Dr Todd Gothelf assessed the WPI at 5% WPI. He reported 9% upper extremity impairment at the wrist. He found two point discrimination was tested to measure 6mm on the radial side of the right thumb, 5 mm of the fingers. He assessed no impairment for peripheral nerve disorders as 2 point discrimination was within normal limits. He stated that strength impairment was not to be used in this case by quoting 16.8a on page 508.
In this examination, I confirmed the range of motion restriction at 9% UEI. I also agree with Dr Gothelf in that strength could not be rated in this case according to the guidelines. However the two point discrimination at the right thumb was greater than 1cm. Therefore, there was sensory loss at the radial palmar digital branch at the right thumb. I rated it as grade 3 at 50% of the max impairment of 7% UEI = 4% UEI (rounded) based on AMA5 T16-15.”
The appellant firstly submits that the MA erred with respect to his assessment relating to ulnar deviation.
The appellant added:
“The MA assessed the Appellant as having an ulnar deviation of 25 degrees, however both Professor Ghabrial and Dr Todd Gothelf confirmed 20 degrees ulnar deviation. The effect of this difference is a lower assessment of whole person impairment than if the previous assessors’ opinions of 20 degrees was confirmed.
Given that both previous medico-legal examiners found the ulnar deviation was 20 degrees, we submit that the MA has made an error in the measurements, and submit that a re-examination of the Appellant is required to clarify this inconsistency.”
The first point we make is that an MA is required to make an assessment at the time of the examination in line with Chapter 1.6 of the Guidelines.
As the respondent correctly points out:
“The Supreme Court noted in Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140 that in Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, where it is stated at [33]:
‘…the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. …”
In addition, a mere difference of opinion is not a proper basis for appeal, nor is an MA required to explain why his clinical findings differ to that of prior medical specialists.
We also point out that the MA assessed Mr Mullen on 28 May 2021, well over a year after both Professor Ghabrial and Dr Gothelf.
In these circumstances, and for the reasons stated above, we cannot see that the MA has erred as submitted by the appellant.
Secondly, the appellant submits that the MA erred in respect of his assessment of sensory loss in the thumb.
The appellant adds:
“The MA assessed the Appellant as having a sensory loss in respect of his thumb along the radial palmar, at 50% of the maximum.
However the MA did not provide any assessment in relation to the ulnar palmar digital of thumb (Table 16-15). Professor Ghabrial provided an assessment of the sensory loss of both sides of the Appellant’s thumb. The MA has not satisfactorily addressed this, nor advised the reasons he failed to assess the ulnar palmar digital thumb, which has a maximum upper extremity impairment of 11%, or a maximum of 7% whole person impairment, if accepted at 100% of the maximum.
Given that no assessment was recorded, we consider that a reassessment is necessary to determine whether any impairment stems from the ulnar palmar digital thumb, as per Table 16-15.”
This submission is misconceived.
In taking a detailed description of present symptoms, the MA recorded that the appellant experienced numbness in the right thumb. He also noted that this numbness was limited to the lateral part of the right thumb at the distribution of the lateral palmar branch of the median nerve. He did not note any numbness in relation to the ulnar aspect.
Thus it is clear that no numbness in the ulnar aspect was identified on clinical examination.
We repeat our comments earlier as regards the necessity for an MA to make an assessment on the day of the examination.
The MA found evidence of sensory changes which he rated as grade 3 out of 5. He explained his findings on examination and his reasons for assessment, and why his opinion differed from the other specialists.
Again, we cannot see that the MA erred as submitted by the appellant.
Finally, the appellant submits that the MA erred in failing to assess hand strength.
The appellant said:
“The MA did not assess the Appellant’s hand strength on the basis that it was excluded from the assessment by 16.8a of the guides.
However, the Appellant submits that 16.8a does not exclude the assessment of strength in circumstances where ‘the individual’s loss of strength represents an impairing factor that has not been considered adequately by other methods in the Guides’ and consequently should be rated separately.
The Appellant submits that the MA has not adequately assessed this as part of his assessment nor provided an adequate explanation of how the ‘other methods’ adequately account for his loss of hand strength in the assessment.”
Once again, the appellant’s submissions on this point are misconceived.
Loss of strength simply cannot be assessed in the presence of decreased range of motion which the MA explained.
As the respondent again correctly points out: “His assessment of impairment clearly includes an assessment for loss of motion at the wrist as well as for sensory loss at the right thumb.”
The task of an MA is to assess impairment, not symptoms or disability, and in a case such as this, that assessment is most properly arrived at by reference to the range of motion demonstrated on examination.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 June 2021 should be confirmed.
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