Paramount Youth Support Services Pty Ltd v Simic
[2024] NSWPICMP 433
•8 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Paramount Youth Support Services Pty Ltd v Simic [2024] NSWPICMP 433 |
| APPELLANT: | Paramount Youth Support Services Pty Ltd |
| RESPONDENT: | Maria Snezana Simic |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 8 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum compensation in respect of injury to the cervical spine and both shoulders; employer appealed in relation to the adoption by the Medical Assessor (MA) of the findings of another doctor as the basis for assessment of impairment; Held – MA erred in adopting the other doctor’s findings; worker re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 February 2024 Paramount Youth Support Services Pty Ltd (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, who issued a Medical Assessment Certificate (MAC) on 22 January 2024.
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, 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.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Maria Snezana Simic (Ms Simic) lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 20 October 2023 in which she claimed 20% whole person impairment (WPI) of the cervical spine, left upper extremity and right upper extremity, as a result of the injury to the right arm on 23 February 2021.
In a Certificate of Determination Consent Orders dated 22 November 2023, Member Drake made the following orders:
“1. The ARD is amended to remove any reference to the left arm, right arm, chest, and back.
2. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
a. Date of injury: 23 February 2021
b. Body system: Right upper extremity (shoulder)
Left upper extremity (shoulder)
Cervical spine
c. Method of assessment: whole person impairment
d. Documents to be referred: ARD and attachments, Reply and attachments”.
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated 23 November 2023, details of the referral were set out as follows:
“Date of Injury: 23 February 2021
Body part/s referred: Right upper extremity (shoulder), left upper extremity (shoulder), Cervical spine.
Method of Assessment: Whole Person Impairment.”
The matter was referred to Medical Assessor, Dr Tim Anderson (the Medical Assessor) for assessment.
The Medical Assessor assessed 7% WPI of the cervical spine, 7% WPI of the right upper extremity and 7% WPI of the left upper extremity. These figures combined to produce a total of 20% WPI as a result of the injury on 23 February 2021.
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 Procedural Direction PIC7.
The appellant requested that Ms Simic be re-examined by a Medical Assessor, who is also a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that there was a demonstrable error in the MAC and that it was necessary for Ms Simic to undergo a further medical examination because there was insufficient evidence to make a determination.
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.
Further medical examination
Dr Alan Home of the Appeal Panel conducted an examination of Ms Simic on 20 May 2024 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, 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) grounds 1 and 2 – demonstrable error and failure to provide reasons. The MAC contains a demonstrable error as the Medical Assessor, in assessing the permanent impairment resulting from Ms Simic’s injury, adopted Dr Bodel’s findings.
(b) Implicit in the medical dispute is whether Ms Simic’s presentation is genuine. This is reflected in the report of Dr Rowden dated 30 January 2023. Ms Simic relies on the report of Dr Bodel dated 1 November 2022 in which there is no mention of her presenting in an inconsistent manner. Dr Bodel provides an assessment of 7% WPI for the right shoulder and left shoulder respectively and 7% WPI for the cervical spine on his findings during the examination.
(c) At page 4 of the MAC, the Medical Assessor advises Ms Simic’s presentation was “very grossly restricted” and “quite artificial” and notes his findings “could not reasonably be used to assess whole person impairment”. The Medical Assessor’s commentary on the lack of pathology demonstrated and Ms Simic’s artificial symptomology on examination, is inconsistent with the findings of Dr Bodel, which the Medical Assessor relies upon for the permanent impairment assessment.
(d) The Medical Assessor fell into error as he essentially adopted the findings of Dr Bodel despite a difference in opinion on the balance of the issues.
(e) In circumstances where the Medical Assessor considers Ms Simic presented in an inconsistent manner it is inappropriate to accept the calculations of Dr Bodel and adopt them in assessing Ms Simic’s permanent impairment.
(f) The Medical Assessor has not explained or justified his reasoning for accepting Ms Simic’s presentation during the examination with Dr Bodel was genuine. The Medical Assessor erred in failing to explain his reasoning for accepting the impairment assessment made by Dr Bodel despite reaching a different opinion as to the genuineness of Ms Simic presentation. In these circumstances the decision by the Medical Assessor to accept the range of movement assessment by Dr Bodel is incongruous with the Medical Assessor’s view that Ms Simic did not make a genuine effort in the examination and presented in an inconsistent manner.
(g) Ground 3 – assessment based on incorrect criteria – the Medical Assessor applied incorrect criteria by failing to apply paragraph 1.39 of the Guidelines by not providing an adequate explanation of his decision to modify the impairment assessment by accepting the impairment assessment made by Dr Bodel. The Medical Assessor did not explain his reasoning for preferring this method of assessment rather than an alternate method in circumstances where the worker’s presentation was inconsistent.
(h) The Medical Assessor failed to describe and explain the reason for his use of Dr Bodel’s findings when such findings are incongruous to his own findings, commentary and observations of the worker.
(i) In circumstances where an assessor finds there is insufficient medical evidence to verify impairment of a certain magnitude exists, the criteria require the assessor to “modify the impairment rating accordingly and then describe and explain the reason for the modification in writing”. The Medical Assessor failed to apply the criteria in making his assessment of permanent impairment.
(j) In reaching the decision to adopt Dr Bodel’s findings the Medical Assessor’s commentary does not reconcile Ms Simic’s presentation during his examination and the inability to use his own findings, with the credibility of Ms Simic’s presentation and the findings of Dr Bodel during his examination. It is difficult to follow the reasoning of the Medical Assessor in reaching the conclusion Ms Simic would not have displayed “artificial” presentation during the examination of Dr Bodel, despite the findings of the Medical Assessor and Dr Rowden in their own examination of Ms Simic.
(k) The Medical Assessor has abdicated from his role in considering the correct criteria for the assessment of permanent impairment and erred in utilising Ms Simic’s medico-legal expert’s findings, for his own permanent impairment assessment.
(l) The appropriate assessment of the bilateral shoulders and cervical spine will result in a conclusion the degree of permanent impairment cannot be ascertained due to the nature of Ms Simic’s presentation.
(m) The MAC should be revoked. Alternatively, Ms Simic should be examined by a different Medical Assessor to confirm the veracity of her presentation and to obtain an assessment of permanent impairment which is consistent with the relevant criteria.
Ms Simic’s submissions include the following:
(a) the Medical Assessor is obliged to make an assessment of WPI even in a situation where determining the exact or verified restrictions in movement of a body system is not possible, however an explanation for the departure from standardized testing must be given (Guidelines paragraph 1.39).
(b) The explanation for using Dr Bodel’s clinical examination is contained in paragraphs 10(b) and (c) of the MAC, namely that Ms Simic’s restrictions in the left shoulder and cervical spine could not accurately be determined given the pathology in those body systems and Dr Bodel s assessment which showed the least restriction in movement (from the Medical Assessor, Dr Rowden and Dr Bodel) was the best fit.
(c) The Medical Assessor’s reasons for accepting Dr Bodel’s assessment are strengthened by the report of Dr Rowden dated 30 January 2023 at paragraph 7 where he confirms that he does not think (Ms Simic) is exaggerating her symptoms, and at paragraph 10(d) where he states that Dr Bodel’s assessment is accurate. Dr Rowden however confirms that he cannot assess her WPI because he cannot accurately measure it.
(d) The Medical Assessor complied with Guideline 1.39. He could not accurately measure the WPI so he accepted Dr Bodel’s clinical findings which were accepted as accurate by Dr Rowden.
(e) Ground 3 – the explanation given by the Medical Assessor for accepting Dr Bodel’s assessment is adequate. The Guidelines, especially 1.39, were correctly applied. The Medical Assessor did “modify the impairment rating accordingly and then describe and explain the reason for the modification in writing”. The Medical Assessor does not have the option to decline making a WPI assessment unless Maximum Medical Improvement has not been reached.
(f) The Medical Assessor is obliged to make an assessment of WPI even in a situation where determining the exact or verified restrictions in movement of a body system is not possible, however an explanation for the departure from standardized testing must be given (see Guidelines paragraph 1.39).
(g) The explanation for using Dr Bodel s clinical examination is contained in paragraphs 10(b) and (c) of the MAC, namely that Ms Simic’s restrictions in the left shoulder and cervical spine could not accurately be determined given the pathology in those body systems and Dr Bodel’s assessments which showed the least restriction in movement (from the Medical Assessor, Dr Rowden and Dr Bodel) was the best fit.
(h) The Medical Assessor’s reasons for accepting Dr Bodel’s assessments are strengthened by the report of Dr Rowden dated 30 January 2023 in which he confirms that he does not think (Ms Simic) is exaggerating her symptoms, and that Dr Bodel’s assessment is accurate.
(i) The Medical Assessor has complied with Guideline 1.39 as he could not accurately measure the WPI so he accepted Dr Bodel’s clinical findings which were accepted as accurate by the Dr Rowden.
(j) The Medical Assessor did not abdicate from his role in considering the correct criteria for the assessment of permanent impairment. The Medical Assessor was following the guidelines as he is required to.
(k) The appeal should be dismissed.
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.
Section 327(2) of the 1987 Act 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 the form of the words used in s 328(2) of the 1998 Act being, SC 1792 Davies J considered that “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.
Grounds 1 and 2 – demonstrable error in adopting the findings of Dr Bodel and failure to explain the reasoning for accepting the assessment of Dr Bodel despite reaching a different opinion as to the genuineness of Ms Simic’s presentation
The appellant submitted that there was a demonstrable error in the MAC as the Medical Assessor essentially adopted the findings of Dr Bodel. The appellant argued that the Medical Assessor fell into a demonstrable error as he abdicated his role as a Medical Assessor and declined to act in accordance with the referral made to him (i.e., to provide an assessment of permanent impairment based on the findings of the Medical Assessor).
On examination the Medical Assessor wrote:
“Ms Simic was of average stature with a height of 1.63m. Her weight was 50kg. With these parameters, she currently has a Body Mass Index of just under 19kg/mÇ. This is just under the lower level of healthy normal. She seemed to be in a great deal of discomfort. She also seemed quite agitated (as did her mother) and every effort was made to place the two ladies at their ease.
She held herself with a stooped posture which would increase the static loading of the spinal extensors.
Cervical Spine. Pain was located throughout the cervical spine radiating well down between the shoulder blades. There was tenderness in the cervical spine but not in the thoracic spine.
There was also tenderness in the para-cervical musculature bilaterally.
Movement of the head and neck was absolutely minimal.
Upper Limbs. No significant features were identified with the elbows, wrists, hands or any digits. I was unable to demonstrate any neurological features.
She had the following shoulder movements:
MOVEMENT RIGHT LEFT
Flexion 20° 20°
Extension 10° 10°
Abduction 40° 40°
Adduction 10° 10°
Internal rotation 40° 40°
External rotation 60° 60°
As can be seen, this range of movements was very grossly restricted and was completely symmetrical. At this stage of the report, I would advise that with these associated features, this range of movement could not reasonably be used to assess whole person impairment.
No other features were identified. Neurologically, she was intact and the reflexes were present and equivalent at the elbows (C5 & 7) and at the wrists (C6)”.
Under Summary, the Medical Assessor wrote:
“Summary of injuries and diagnoses:
Ms Simic was involved in a very frightening event in late February 2021 in which there was a potentially very severe altercation with a disturbed patient armed with a knife. The situation deteriorated to such an extent that Ms Simic who was working with another youth worker apparently feared for their lives. In the severe physical altercation which occurred in which the disturbed patient and Ms Simic were wrestling against each other with a door, Ms Simic sustained musculo-ligamentous strains to her cervical spine and to her right shoulder. Further along the line, the left shoulder has similarly deteriorated although there has been no specific injury.
At this assessment, Ms Simic was very grossly dysfunctional. As already mentioned, the range of movement of the shoulders (and the cervical spine) seemed quite artificial and could not reasonably be used for assessment of whole person impairment.
Consistency of presentation:
I believe Ms Simic was doing her best to be consistent although attention is drawn to the very artificially reduced ranges of movement of both shoulders which was completely symmetrical.”
In explaining his calculations in the assessment of WPI, the Medical Assessor wrote:
“Ms Simic has been seen by Specialist Orthopaedic Surgeons, Dr James Bodel and Dr Neville Rowden, as well as myself. The recorded ranges of movement of the shoulders varies significantly from each assessment. The timeframe in which this has occurred between the assessment of Dr James Bodel and the assessment of Dr Neville Rowden was only 2 months. It therefore seems quite inexplicable why there should be such very gross restriction of movement in that period of time. In the 10ó months or so that she was seen by Dr Rowden, the range of movement which I recorded is even less than he recorded. Therefore, it seems quite inappropriate to use the range of movement which I recorded for whole person impairment evaluation. Similarly, I would state the same would reasonably be stated with the ranges of movement identified by Dr Neville Rowden. In looking at the detailed MRI scan reports, which demonstrate only minimal findings, I would suggest that the most appropriate way of addressing this issue would be to utilise the ranges of movement measured by Dr James Bodel in his report of 01/11/22. The actual physical injuries experienced by this young lady were really quite minor, as demonstrated by the MRI scans of the cervical spine and both shoulders. To that end, the range of movement assessed by Dr James Bodel is utilised for whole person impairment of the shoulders.
Cervical Spine
She continues to have dysfunction of her cervical spine although there is no radiculopathy and similar to the range of movement of the shoulders, she has excessive restriction of movement of the cervical spine. This would place her into DRE Cervical Category II in AMA-5, P 392, T 15-05. This provides a whole person impairment ranging between 5% and 8%, depending on her activities of daily living. For this, she would attract a further 2%, giving 7% WPI.
Shoulder Assessment
(As measured by Specialist Orthopaedic Surgeon, Dr James Bodel, in his report of 01/11/22.)
AMA 5 REFS
MOVEMENT
RIGHT
% UEI RIGHT
LEFT
% UEI LEFT
P476
Flexion
120°
4
120°
4
F 16-40
Extension
40°
1
40°
1
P 477
Abduction
90°
4
90°
4
F 16-43
Adduction
20°
1
20°
1
P 479
Internal rotation
60°
2
60°
2
F 16-46
External rotation
60°
0
60°
0
12
12
From P 439, T 16-03 this converts to 7% WPI on each side.
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:
Brief comment has already been made about Dr James Bodel’s report of 01/11/22. I believe this should be the standard accepted for the whole person impairment in this case since the ranges of movement measured by both Dr Neville Rowden in his report of 30/01/23 and myself on this occasion seemed very grossly at variance with what would reasonably be anticipated following these relatively minor physical injuries. At this assessment, I gained the very strong view that the major part of this young lady’s condition was psychological and not physical.”
Dr Bodel, in his report dated 1 November 2022, on examination wrote:
“She complains of tenderness in the trapezius muscle at the base of the neck on the right side and there is guarding in that area. She has a restricted range of neck flexion, extension and rotation in all directions and this is most restricted on extension and rotation to the left.
She has a very restricted range of shoulder movement in both shoulders. This is recorded in the table below:
Shoulder
Movement
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
NORMAL ROM
Flexion
120°
120°
180°
Extension
40°
40°
50°
Adduction
20°
20°
50°
Abduction
90°
90°
180°
Internal rotation
60°
60°
90°
External rotation
60°
60°
90°
There is impingement in the shoulders but no instability. There is tenderness over the rotator cuff.
There is no restriction of elbow, wrist or hand movement. Grip strength is normal. The reflexes are present and equal. There is no sensory loss in the dermatomal distribution or in the distribution of the median or ulnar nerve.
There is a good range of lateral bending and rotation of the thoracic spine and no impairment of straight leg-raising or neurological abnormality in the lower limbs”.
Dr Bodel noted that he had seen a report of an MRI scan of the right shoulder, dated 23 September 2022, showing evidence of subacromial bursitis and tendinosis of the posterior insertion of the supraspinatus. He noted that the report of the MRI scan of the left shoulder from 21 September 2022 also shows similar findings in the supraspinatus and the associated bursitis. He noted that a report of the MRI scan of the cervical spine from 24 October 2022 shows that there is minor degenerative change at the C4/5 area but there is no spinal cord or nerve root compromise at any level.
Dr Bodel made the following diagnosis:
“The claimant has suffered a soft tissue injury to the cervical spine. There is some minor degenerative change at C4/5 which has been aggravated by the injury. The main pathology however is the bursitis and tendinitis, and partial thickness tears in the rotator cuff in both shoulders confirmed on the MRI scans. This is due to the assault that occurred at work”.
Dr Rowden, in his report dated 30 January 2023, noted that Ms Simic’s symptoms had become worse since his examination by Telehealth on 30 July 2021. On examination he wrote:
“Her cervical spine was generally very tender, and her movements were very guarded. She had less than 20% range of movement of her neck in flexion, extension and rotation and lateral movement. She appeared to have some wasting around both shoulder girdles.
Her active movements of her shoulders were extremely limited. Her forward flexion was less than 50° on the right side and 70° on the left. Her extension was approximately 10° bilaterally, her abduction was only 30° and her adduction approximately 20° bilaterally. Her internal and external rotation were less affected, her external rotation was 70° and her internal rotation 80° with her arms by her side.
There were patchy changes in sensation to pin prick in her right upper limb, not so in her left. Her movement at her elbows and wrists were normal, however, she had weak grip strength in both hands”.
Under “opinion”, Dr Rowden wrote:
“This young lady has ended up living the life of a severe disabled invalid based on relatively minor injuries to her right shoulder and neck. The pathology indicated in MRI scans of her cervical spine and left shoulder do not account for the severe restriction in movement and severe disability and nature of her symptoms currently experienced.
For this reason, I find it impossible to consider her for impairment assessment as I do not believe that she has completed her treatment programme.
I was quite concerned about the deterioration in her symptoms since my assessment dated 30 July 2021 to now. Her symptoms have even deteriorated since she was assessed by Dr Bodel who measured 120° flexion of both her shoulders and, since his examination of 1 November 2022, she now has only 50-70° of flexion.
I believe she fulfils the criteria required to be assessed in a formal pain clinic and her psychological counselling should also be combined with a psychiatric assessment.
It may be that she needs more appropriate medication, and this may include antidepressants”.
Dr Rowden was of the view that there was not any evidence of exaggeration or any inconsistent responses or any responses to suggest any malingering. In commenting on Dr Bodel’s report dated 1 November 2022, he wrote:
“I believe Dr Bodel’s report dated 1 November 2022 is accurate for the assessment that he obtained; however, I am perplexed as to why her shoulder range of movement has deteriorated so much since that time that I am not able to provide an accurate assessment of impairment for the reasons I have already explained”.
In a report dated 6 April 2021, Ms E-Quine Lim, physiotherapist, noted that Ms Simic’s range of movement in the shoulders was: “Left; abduction and flexion up to 150 degrees, limited by pain. Right: abduction and flexion up to 85 degrees, limited by pain.”
In a report dated 21 September 2022, David Kwong, physiotherapist noted that Ms Simic had the following range of movement in her shoulders:
“Her range of motion measurements are as follows:
Left shoulder flexion: 90 degrees (20-30 degrees with minimal pain)
Left shoulder abduction: 90 degrees (20-30 degrees with minimal pain)
Left shoulder external rotation: 10 degrees
Right shoulder flexion: 60 degrees (0-10 degrees with minimal pain)
Right shoulder abduction: 60 degrees (0-10 degrees with minimal pain)
Right shoulder external rotation: 5 degrees”
The Appeal Panel considers that the Medical Assessor erred in relying on the findings of Dr Bodel in circumstances where there were serious inconsistencies between the range of movement found in other assessments. Dr Rowden, in his examination on 24 January 2023, found forward flexion was less than 50° on the right side and 70° on the left, extension was approximately 10° bilaterally, abduction was 30° and adduction approximately 20° bilaterally, external rotation was 70° and internal rotation 80° with her arms by her side. However, Dr Bodel, in his examination on 1 November 2022, that is, about three months earlier, found forward flexion was 120° on the right side and 120° on the left, extension was approximately 40° bilaterally, abduction was 90° and adduction 20° bilaterally, external rotation was 60° and internal rotation 60°.
Further, the Medical Panel is of the view that because a considerable amount of time had passed since Dr Bodel’s examination on 1 November 2022, it is unreliable to adopt Dr Bodel’s findings as a means of assessment of impairment. The Appeal Panel considers that earlier examination findings, such as the findings of Dr Bodel, should not be used as a basis of an assessment unless such findings are consistent with the findings made by the Medical Assessor. The Appeal Panel notes that in this case, the measurements of shoulder movement are very inconsistent over a period of several years and indeed, as noted above, over a period of just several months. In view of such inconsistencies, the Appeal Panel concludes that it would be unreliable for the Medical Assessor to use one independent medical examiner’s measurements to assess impairment.
The Appeal Panel notes that the MRI scan of the right shoulder dated 24 May 2021 reported a small supraspinatus tear in the right shoulder, no muscle belly atrophy and minor sub-acromial bursal thickening. The MRI scan of the left shoulder dated 27 September 2022 reported minor supraspinatus. The Appeal Panel were of the view that this pathology could not have caused the enormous decrease in the range of movement in the shoulders.
The Appeal Panel considers that the Medical Assessor provided insufficient reasons as to why Dr Bodel’s measurements could be used in his assessment in view of the inconsistencies recorded and pathology identified in the scans. The Appeal Panel is not satisfied that the Medical Assessor adequately explained why Dr Bodel’s measurements of shoulder movement could be relied upon rather that measurements made by other assessors. Further, the Medical Assessor did not consider whether there was another basis upon which impairment could be assessed, for example, by way of analogy. The failure to provide adequate reasons for relying on Dr Bodel’s measurements of the range of movement is a demonstrable error.
Ground 3 – application of incorrect criteria due by failing to apply paragraph 1.39 of the Guidelines
The appellant submitted that the Medical Assessor applied incorrect criteria by failing to apply paragraph 1.36 of the Guidelines by not providing an adequate explanation of his decision to modify the impairment assessment by accepting the impairment assessment made by Dr Bodel. The Medical Assessor did not explain his reasoning for preferring this method of assessment for the shoulder injuries rather than an alternate method in circumstances where the worker’s presentation was inconsistent.
The Guidelines at paragraph 1.36 provides as follows:
“AMA5 (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing’. This paragraph applies to inconsistent presentation only”.
The Medical Assessor under Consistency of Presentation wrote: “I believe Ms Simic was doing her best to be consistent although attention is drawn to the very artificially reduced ranges of movement of both shoulders which was completely symmetrical.”
As noted above, the Medical Assessor wrote:
“Ms Simic has been seen by Specialist Orthopaedic Surgeons, Dr James Bodel and Dr Neville Rowden, as well as myself. The recorded ranges of movement of the shoulders varies significantly from each assessment. The timeframe in which this has occurred between the assessment of Dr James Bodel and the assessment of Dr Neville Rowden was only 2 months. It therefore seems quite inexplicable why there should be such very gross restriction of movement in that period of time. In the 10 ½ months or so that she was seen by Dr Rowden, the range of movement which I recorded is even less than he recorded. Therefore, it seems quite inappropriate to use the range of movement which I recorded for whole person impairment evaluation. Similarly, I would state the same would reasonably be stated with the ranges of movement identified by Dr Neville Rowden. In looking at the detailed MRI scan reports, which demonstrate only minimal findings, I would suggest that the most appropriate way of addressing this issue would be to utilise the ranges of movement measured by Dr James Bodel in his report of 01/11/22. The actual physical injuries experienced by this young lady were really quite minor, as demonstrated by the MRI scans of the cervical spine and both shoulders. To that end, the range of movement assessed by Dr James Bodel is utilised for whole person impairment of the shoulders.”
The Medical Assessor in commenting on the other medical opinions wrote:
“Brief comment has already been made about Dr James Bodel’s report of 01/11/22. I believe this should be the standard accepted for the whole person impairment in this case since the ranges of movement measured by both Dr Neville Rowden in his report of 30/01/23 and myself on this occasion seemed very grossly at variance with what would reasonably be anticipated following these relatively minor physical injuries. At this assessment, I gained the very strong view that the major part of this young lady’s condition was psychological and not physical.”
Dr Rowden was of the view that there was not any evidence of exaggeration or any inconsistent responses or any responses to suggest any malingering. He believed that Dr Bodel’s report dated 1 November 2022 was accurate for the assessment that he obtained but went on to state that he was perplexed as to why her shoulder range of movement has deteriorated so much since that time.
Dr Bodel did not comment on consistency.
It appears that the Medical Assessor believed a major part of Ms Simic’s condition was psychological and not physical and therefore he did not rely in the measurements that he obtained in his examination and instead relied on those obtained by Dr Bodel. However, in circumstances where the Medical Assessor noted that the MRI scans demonstrated only minimal findings and that the ranges of movement measured by both himself and Dr Rowden seemed very grossly at variance with what would reasonably be anticipated following these relatively minor physical injuries, a more detailed explanation of why he relied on Dr Bodel’s findings needs to be provided.
The Appeal Panel is satisfied that the Medical Assessor failed to apply paragraph 1.36 of the Guidelines in that he did not provide an adequate explanation of his decision to modify the impairment assessment by accepting the impairment assessment made by Dr Bodel.
In view of the inconsistencies in the measurements taken by the Medical Assessor and the other doctors, and the need to consider what may be an appropriate method of assessment, the Appeal Panel considers that it is necessary for Ms Simic to undergo a further medical examination because there is insufficient evidence on which to make a determination.
As noted above, Medical Assessor Alan Home re-examined Ms Simic on 20 May 2024. Medical Assessor Home provided the following report:
“Ms Simic was accompanied to the examination by her mother, Snezana. The history was obtained directly from the worker.
HISTORY
Ms Simic states that she sustained injuries during an incident in which she was attacked by a client whilst working as a carer. She states that the client verbally and physically attacked her. She recalls that she was trapped in a room with a co-worker. She recalls that she was trying to hold to door closed as the door could not be properly locked.
She states that the client attempted to push the door open. She recalls that she was initially forcibly holding the door closed by placing her right shoulder against it.
She states that after a short period, she thought the client had left the room and she opened the door, but found that the client was standing within the room holding a knife.
She attempted to close the door, but her right arm became trapped in the door. The client was pushing against the door repeatedly, jamming her right shoulder between the open door and the door frame.
Eventually, she was able to call the police and she was able to be freed from the situation. She was taken by ambulance to Dubbo Hospital, where she was assessed in the emergency department. She recalls that she was told by the doctor that she may have a rotator cuff injury. She recalls that she was provided with a sling and given analgesia.
She continued to work over the next three days before seeking treatment from her general practitioner, Dr Milienkic. She recalls subsequent imaging of the right shoulder.
She states that approximately two months after the incident, she became aware of neck and left shoulder pain. She said that this coincided with her temporarily ceasing analgesic medication.
She also recalls that during the first few months, she attempted to continue work. She believes that the ongoing work may have caused her to develop a consequential complaint in the left shoulder.
She recalls periods of physical therapy, initially at Rouse Hill where she received three treatments which did not help.
She attended Dr Gupta, orthopaedic surgeon, in May 2021.
She underwent MRI scans of the shoulder.
She confirms that Dr Gupta felt there was possible adhesive capsulitis complaint. She was sent to a second physiotherapist in Bella Vista, where she received further treatment directed toward her right shoulder condition.
She recalls that she then attended a third physiotherapist for exercise advice in Bella Vista.
After coming under the care of Dr Lim, she was referred to Dr Gavin Soo, who arranged further MRI scans of the shoulder.
She recalls that she attended a fourth physiotherapist in Toongabbie, receiving massage directed toward her neck, left shoulder and right shoulder complaints and further advice regarding exercise.
She says that she has available a TheraBand elastic. She has not been instructed to use light weights. She reports minimal physical activity.
She recalls some improvement in symptoms during that period of treatment. Funding was ceased around October 2023.
She reports the current use of either Mobilis or ibuprofen, which she takes on most days. She takes Pantoprazole to counteract gastric side effects.
She takes Fluoxetine to manage symptoms of Posttraumatic Stress Disorder. She takes Melatonin to manage her sleep pattern.
She is receiving additional treatment under the care of a psychologist.
CURRENT SYMPTOMS
Ms Simic states that she experiences daily neck pain of intensity 5-6/10. The pain is felt evenly and posteriorly in the neck on each side. She describes associated symptoms of light headedness or dizziness, occurring once or twice a week. There is associated nausea.
She reports right shoulder pain as a constant ache of intensity 8/10 on a visual analogue scale (VAS). This increases with activity, which she minimises. She cannot raise her right arm above the horizontal.
She reports difficulty sleeping over her right shoulder at night. She reports intermittent paraesthesia in the entire right arm, extending to the radial three digits. This occurs frequently through the week.
At the left shoulder, she describes constant pain present all the time at average intensity 6/10. She describes restricted motion at the left shoulder. This is somewhat better than on the right. She cannot sleep on either side.
FUNCTIONAL CAPACITY AND REPORTED TOLERANCES
She is right hand dominant.
She reports a sitting tolerance of 15 minutes limited by general upper limb discomfort. She reports that she drives her motor vehicle locally. She steers with her hands near the base of the wheel. She reports a walking tolerance of 15 minutes. She avoids swinging her arms whilst walking.
She is independent for activities of self-care.
She says she cannot lift anything more than 1kg or so. She is not certain of her precise lifting capacity.
SOCIAL HISTORY
Ms Simic is single, without children. She lives with her parents and her older brother. Her older brother usually drives her about.
She is a non-smoker.
She says that she does not engage in any domestic chores including cooking, dishwashing or bench height cleaning.
She denies active hobbies.
PAST MEDICAL HISTORY
There is no past history of neck or shoulder complaints. She denies any other relevant medical or family history.
EDUCATIONAL AND OCCUPATIONAL HISTORY
She had completed year 12 schooling. She also completed University studies in Social Science and Psychology. She obtained a Masters of Psychology and Counselling at West Sydney University, which she completed in 2021. She has been interested in youth counselling work.
She said that after the subject injury, she attempted a trial of counselling, but lasted only one month.
At the time of the accident, she was working as a youth worker from July 2018. Previously, she had completed casual work at MacDonalds and work as a disability support worker.
PHYSICAL EXAMINATION
On examination, Ms Simic is a 25-year-old standing 163cm and weighing 50kg.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. Cervical flexion and extension are performed to 1/3 normal range on each side, right and left rotation performed 1/3 normal range to each side, lateral flexion performed to 1/4 normal range to each side. There is no dysmetria evident. There is no true muscle guarding.
The neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is reduced sensibility declared in the right upper limb along the lateral border of the right arm and forearm and extending to the thumb, index and middle fingers of the right hand. Sensibility is greater on the left.
The deep tendon reflexes are symmetrically preserved. There is no focal muscle wasting in the upper limbs.
Resisted movements across the shoulders are performed with grade 4/5 power. Power elsewhere is grade 5/5 in all muscle groups.
Right shoulder
Examination of the right shoulder reveals no focal muscle wasting.
Active motion is measured by goniometer methods on three attempts, with maximum measurements obtained with repeated measurement as follows:
Shoulder Movements
Active ROM Measured
RIGHT °
Flexion
60
Extension
40
Adduction
30
Abduction
50
Internal Rotation
60
External Rotation
60
There is widespread superficial tenderness about the shoulder without localisation.
Left shoulder
At the left shoulder active motion is measured by goniometer methods on three attempts, as follows:
Shoulder Movements
Active ROM Measured
LEFT °
Flexion
70
Extension
30
Adduction
40
Abduction
70
Internal Rotation
80
External Rotation
60
There is widespread superficial tenderness about the shoulder without localisation.
There is normal passive rotation at each shoulder when tested in neutral abduction. There is no evidence of early scapular lift off during shoulder elevation.
That is, signs of adhesive capsulitis are absent.
I could not reliably test for impingement due to the restricted range of active shoulder motion demonstrated.
There is a full range of active motion at both elbows, measured 0° to 140°, forearm pronation 90°, supination 90° on each side.
There is no restriction of active motion of the wrists or digits in either hand.
CONSISTENCY
The worker was advised before the assessment that it was important that she display the maximum range of motion during the assessment. She was advised that the range of active motion was not consistent with previous examinations or the known pathology. However, she could not provide an explanation for this restricted motion. She did not demonstrate a greater range of motion when re-examined.
INVESTIGATIONS
Ultrasound right shoulder, dated 3 March 2021. No abnormality of the rotator cuff tendons is demonstrated. There is evidence of mild subdeltoid bursitis with restriction of abduction and rotation.
MRI right shoulder, dated 24 May 2021. Small supraspinatus tear. No muscle belly atrophy. Minor subacromial bursal thickening.
Ultrasound guided injection to the right subacromial bursa was performed on 17 September 2021.
MRI cervical spine, dated 12 November 2021. No compressive discopathy or central canal stenosis to explain pain radiating to the left shoulder.
Ultrasound left shoulder, dated 10 March 2022. Evidence of mild subacromial bursitis with restriction of abduction and rotation.
MRI left shoulder, dated 21 September 2022. There is no supraspinatus tear. There is minor tendinotic change noted posteriorly at the insertion. There is no atrophy. The acromioclavicular joint is within normal limits. There is no outlet obstruction. The bursa is not thickened.
MRI right shoulder, dated 23 September 2022. High grade tendinosis is present at the posterior insertion of the supraspinatus. There is no muscle belly atrophy. The degree of subacromial bursa fluid is a little more pronounced than previously. There is a small focus of degeneration within the biceps labral complex.
MRI cervical spine, dated 24 October 2022. There is a very minor C4/5 herniation. The cord defines normally.
DIAGNOSIS AND CAUSATION
Ms Simic recalls the immediate onset of right shoulder pain after a workplace incident in which her right arm was trapped within a door whilst a client was pushing on the door from the other side.
The mechanism of accident could cause a right shoulder injury and has caused a right shoulder injury.
The worker suffered the subsequent onset of neck and left shoulder conditions, which have been considered consequential injuries in this case.
Investigations of the right shoulder have demonstrated a very small insertional tear within the supraspinatus tendon that may be a source of pain.
Whilst I note an early diagnosis of adhesive capsulitis, the clinical signs of adhesive capsulitis are not present at the current assessment.
I find that the range of active motion demonstrated during the examination is not consistent with the known pathology.
The worker was asked about the difference between the range of motion at the current assessment with that documented by previous examiners including Dr Bodel, who found a greater range of motion. The worker could not provide any explanation for the disparity apart from stating that her physiotherapy had been cut off.
The range of active motion demonstrated at the assessment is not consistent with the known pathology of subacromial bursitis and a small insertional tear at the right shoulder supraspinatus tendon.
The MRI scan of the left shoulder does not demonstrate any abnormality beyond mild tendinosis of the supraspinatus insertion that would not be anticipated to cause more than marginal restriction of shoulder elevation.
I find that the range of motion demonstrated was not consistent with previous examinations and not internally consistent with the known pathology.
The MRI scan imaging of the cervical spine shows only very small C4/5 disc lesion that may be a source of pain, but would not be anticipated to cause neurological symptoms.
I note that the worker reports non verifiable radicular complaints in the right upper limb and have made an assessment of impairment on the basis of that finding.
WHOLE PERSON IMPAIRMENT
Impairment is assessed using the methodology set out in the American Medical Association Guides for the Evaluation of Permanent Impairment 5th Edition and the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th Edition as follows:
Cervical spine
There is a DRE Category II impairment rating for the cervical spine in accordance with the methodology set out in AMA 5, Chapter 15, Table 15-3, page 384.
A 5% WPI baseline applies.
A further 2% WPI rating arises to reflect the extent to which the cervical spine condition affects the capacity for activities of daily living in accordance with Sections 4.33 to 4.35 of the SIRA Guidelines.
A 7% WPI rating arises.
Right shoulder
I find that range of motion could not be used as the range of motion demonstrated at this examination is not reliable or consistent with the findings at previous examinations.
Where the range of motion is not reliable, range of motion cannot be used as a valid parameter of impairment evaluation in accordance with Paragraphs 1.43 and 2.5 of the NSW Workers Compensation Guidelines.
Chapter 2 of the Guidelines direct that if range of motion measurement at examination cannot be used as a valid parameter of impairment evaluation, the Assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.
In this case, I assess the shoulder whole person impairment by analogy.
The NSW Workers Compensation Guidelines provides for an impairment rating for workers suffering impingement.
Whilst I could not test for impingement in the current case, I consider that the worker would likely experience impingement from the known pathology, which would interfere with activities of daily living to a similar degree.
Section 2.16 provides a rating for impingement as follows:
2.16 Diagnosis of impingement is made on the basis of positive findings on appropriate provocative testing and is only to apply where there is no loss of range of motion. Symptoms must have been present for at least 12 months. An impairment rating of 3% UEI or 2% WPI shall apply.
I find that there is an impairment rating of 2% WPI for the right shoulder.
Left shoulder
I find that range of motion could not be used as the range of motion demonstrated at this examination is not reliable or consistent with the findings at previous examinations.
Where the range of motion is not reliable, range of motion cannot be used as a valid parameter of impairment evaluation in accordance with Paragraphs 1.43 and 2.5 of the Guidelines. Chapter 2 directs that if range of motion measurement at examination cannot be used as a valid parameter of impairment evaluation, the AMS should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.
Using the same methodology for the left shoulder as for the right, I find that there is an impairment rating of 2% WPI for the left shoulder.
Combined impairment
The combined whole person impairment rating is 11% WPI.”
The Appeal Panel adopts the report and findings of Medical Assessor Home. The Appeal Panel agrees that there is a DRE Category II impairment rating for the cervical spine and a 5% WPI baseline applies with a further 2% WPI rating for interference with activities of daily living in accordance with sections 4.33 to 4.35 of the Guidelines.
In respect of the right shoulder, the Appeal Panel agrees that range of motion could not be used as the range of motion demonstrated at the examination by Medical Assessor Home is not reliable or consistent with the findings at previous examinations. In circumstances where the range of motion is not reliable, range of motion cannot be used as a valid parameter of impairment evaluation in accordance with Paragraph 2.5 of the Guidelines. The Appeal Panel agrees that applying Chapter 2 of the Guidelines the impairment in the shoulders should be assessed by analogy using the impairment rating for workers suffering impingement, even though Ms Simic has a loss of range of motion.
The Appeal Panel agrees with Medical Assessor Home that Ms Simic would likely experience impingement from the known pathology, which would interfere with activities of daily living to a similar degree. The Appeal Panel agrees with the assessment by Medical Assessor Home of 2% WPI for the left shoulder and 2% WPI for the right shoulder.
In summary, the Appeal Panel assesses 7% WPI for the cervical spine, 2% WPI for the right upper extremity and 2% WPI for the left upper extremity. The combined impairment is 11% WPI.
For these reasons, the Appeal Panel determines that the MAC issued on 22 January 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7882/23 |
Applicant: | Maria Snezana Simic |
Respondent: | Paramount Youth Support Services Pty Ltd |
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 Medical Assessor 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, | 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) |
| Right Upper extremity | 23/2/21 | Ch2, | Ch16, | 2% | 0% | 2% |
| Left Upper extremity | 23/2/21 | Ch2, | Ch16, | 2% | 0% | 2% |
| 3.Cervical Spine | 23/2/21 | Chapter 4 Sections 4.33 to 4.35 | Chapter 15, Table 15-5, Page 392 | 7% | 0% | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
0