Pathak v Northcott Disability Services Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Pathak v Northcott Disability Services Pty Ltd [2023] NSWPICMP 472
APPELLANT:	Purnima Pathak
RESPONDENT:	Northcott Disability Services Pty Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	27 September 2023
CATCHWORDS:	WORKERS COMPENSATION The Panel determined that the Medical Assessor (MA) erred in several respects; firstly in stating that the appellant's injuries had 'resolved'; secondly, in making a deduction in respect of his assessment of both shoulders without explanation and thirdly, his findings on physical examination of the cervical spine and the left ankle are inconsistent with and contradictory to the MA’s statement that the injuries have “resolved”; a re-examination was arranged; the Panel accepted the findings and assessment of Dr Bodel; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 June 2023, Purmina Pathak (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Farhan Shahzad, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 May 2023.
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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Panel determined that the Medical Assessor erred in several respects, firstly in stating that the appellant's injuries had 'resolved'; secondly, in making a deduction in respect of his assessment of both shoulders without explanation and thirdly, his findings on physical examination of the cervical spine and the left ankle are inconsistent with and contradictory to the Medical Assessor’s statement that the injuries have “resolved”.

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

Medical Assessor James Bodel of the Appeal Panel conducted an examination of the worker on 7 September 2023 and reported to the Appeal Panel.

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 Medical Assessor erred as set out in paragraph 7 above.
In reply, the respondent submits that irrespective of whether it may have been open to another practitioner to reach an alternate conclusion, the conclusions reached by
Dr Shahzad were available on the evidence, together with his own clinical judgment and the appellant’s presentation on assessment, and 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 Medical Assessor for assessment of whole person impairment (WPI) in respect of the cervical spine, the right upper extremity (shoulder), the left upper extremity (shoulder) and left lower extremity (ankle) resulting from an injury on
20 October 2018.
The Medical Assessor obtained the following history:
“Ms Pathak injured her left shoulder and left elbow whilst she was employed with the insured on 20 October 2018. She drove a client with cerebral palsy and epilepsy to the group home. She then helped her get down from the van. When Ms Pathak was opening the garage door, the client lost her balance and fell onto the Ms Pathak’s body, causing her to strike her left shoulder and left elbow against the edge of a brick wall nearby.
She felt pain in her left shoulder and left elbow and experienced neck pain, however, to a lesser extent. She also injured her left ankle because of the weight of the client.
She completed her shift and took Panadol for pain.
She received medical attention to her left shoulder and left elbow as she only reported symptoms related to those regions. However, on or around 12 November 2018, she reported to her general practitioner, Dr Jena Abraham that she also has neck pain and stiffness with intermittent spasms.
She did not return to work immediately as the insured was unable to provide her with suitable duties. On or around 15 November 2018, the insured agreed to provide her with suitable duties, however, these duties were not suitable nor modified. The duties provided to her were still heavy and strenuous in nature and involved showering clients and pushing and pulling trolleys. As a result, she was relying heavily on her right shoulder/arm and force from her neck and right side of her upper body. She began to experience pain in her right shoulder.
In the following weeks, her neck pain deteriorated and was associated with pain that radiated down her right shoulder area.
On or around 8 December 2018, she was caring for a client who suffered a seizure. She tried to restrain the client with her right shoulder/arm and the right side of her body. She find it difficult to restrain the client by only using her right shoulder/arm and the right side of her body, she had to also use her injured left arm. Subsequently, the pain in her left shoulder/arm and neck flared as well as she experienced right shoulder pain since she relied heavily on that side. After 8 December 2019 , she continued to perform her pre-injury duties which were repetitive and heavy. She relied on her right arm/shoulder and the right side of her body to perform her tasks. Imaging was ordered…
On 22 February 2019, she was working with medical restrictions with very inexperienced colleagues assisting her. The claimant was essentially supporting her clients to get in and out of the van, opening and closing the heavy sliding door of the van and strapping clients with a disability into the harness.
She was repeatedly getting inside the van by leading herself with her left foot by placing it on the first step and push with her left foot/ankle and then hauling herself with her right shoulder/arm and right side of her body. This task has been attended to regularly by the claimant following her injury on 20 October 2018, however, on 22 February 2019, it was performed repetitively and with greater intensity/speed due to lack of assistance that was provided to her. Despite severe pain, stiffness and discomfort affecting her right shoulder, neck, and left ankle, the claimant completed her shift.
She reported the pain to her general practitioner. The claimant was more concerned about her neck and right shoulder and did not give much attention to her left ankle as she thought it was just a sprain from repetitively placing pressure and power on it when getting inside the van. She continued to work after 22 February 2019.
At times, when she was performing reduced hours, her pain deteriorated with her usual work activities, especially with driving, and carrying the weight of clients whilst transferring them. She was constantly alternating between her left and right injured upper limbs. Her left ankle pain also became more intrusive over the following days and weeks. She stopped working on 6 June 2019…
On 8 December 2019, she re-injured her left shoulder whilst she was pulling a client out of a wheelchair…
Ms Pathak reported that symptoms associated with her left elbow resolved.”
After setting out details of Ms Pathak’s present treatment and symptoms, past history and prior work, the Medical Assessor then turned to consider the impact of her injuries on her activities of daily living and social activities. He said:
“The claimant has a driving tolerance of 30 minutes. She reports she experiences pain when turning her neck to check for oncoming traffic.
She has difficulty with strenuous domestic chores, and she had to heavily reduce the chores that she attends to at home.
She is unable to hang the clothes on the line, chop vegetables, do the shopping, carry the washing basket, vacuum, mop, and sweep. She reported that her daughter has been performing most of the strenuous household chores.
Her hobbies are ongoing daily meditation and attending mindfulness workshops once every 2 months, however, she has currently ceased these activities due to pain.”
Findings on examination were reported as follows:
“On examination, she walked with a limp and could not walk on her tip toes and on her heels. She could not do a full squat. She wears orthotics in her shoes…
Cervical spine
She has one third of normal range of movement of the cervical spine globally without any localised tenderness.
Shoulders
She has restricted range of movement on the shoulders. On examining her shoulders, she has full movement in the left shoulder and slightly reduced elevation of the right shoulder. She had the following ranges of movement:
Forward flexion L150° Rt140°
Extension L 50° R 50°
Abduction L160° R160°
Adduction L40° R40°
External rotation L70° R70°
Internal rotation L80° R80°
NEUROLOGICAL EXAMINATION OF UPPER LIMBS:
Motor examination of C5 to T1 revealed normal muscle strength. There was no evidence of paravertebral or lower limb muscle atrophy. Sensory examination was normal at all levels. Reflex examination of C5, C6 and C7 revealed nil deficits…
NEUROLOGICAL EXAMINATION OF LOWER LIMBS
Motor examination of L2 to S1 revealed normal muscle strength. There was no evidence of paravertebral or lower limb muscle atrophy. Sensory examination was normal at all levels. Reflex examination of L4, L5 and S1 revealed nil deficits…
LEFT ANKLE:
There was no muscle guarding, swelling, rigidity or muscle spasm noted over both ankles. There was no tenderness, contractures or muscle atrophy of the peroneal muscles, tibialis anterior, extensor digitorum longus and extensor hallucis longus. She does not require the use of any mobility aids or orthotics. She was able to rise to a standing position without difficulty with deep chairs…”
The Medical Assessor then set out details of the various investigations he had before him, to which we will refer more fully below.
In summarising the injuries and diagnoses, the Medical Assessor said:
“• Cervical spine: Soft tissue injury; resolved
• Right shoulder: Rotator cuff strain; resolved
• Left shoulder: Musculoligamentous injury; resolved
• Left ankle: Soft tissue injury; resolved
Ms Pathak initially suffered a left shoulder strain on 20 October 2018 when her left elbow struck a brick wall. However, she made a good recovery and had physiotherapy for a few months and the left shoulder settled.
She returned to her normal duties in a group home and then suffered a strain to her right shoulder and right side of her neck when assisting clients out of a van on 22 February 2019. She appears to have some subacromial bursitis and has likely suffered a rotator cuff strain to her right shoulder.
She also sustained a left ankle sprain but this subsequently settled.
She has made a good recovery from her injuries such that she has gone on to acquire qualifications as a Yoga teacher which would require good movement of all body parts…”
The Medical Assessor assessed 0% WPI and said:
“In her cervical spine, she has some mild stiffness but there is no muscle guarding or dysmetria and no radicular symptoms or radiculopathy. With reference to AMA Guides 5th Edition page 392, she has DRE Category I cervical spine injury that gives 0% WPI. In her shoulders, with reference to AMA Guides 5th Edition pages 472 to 475, Table 16-3 page 439, this gives 4% WPI in each shoulder which is deducted. On today’s examination she had normal examination of her left ankle and foot and lower leg. She has no whole person impairment in the left lower limb.”
In commenting on the other medical opinions, the Medical Assessor said: “I agree with Dr Murray Hyde Page reports and findings as compated [sic-compared] to other reports which are almost 3 years old”.
The appellant’s submissions are extensive, but may be summarised as follows:
(a)    the Medical Assessor opined that the appellant's injuries have 'resolved'. The medical dispute referred for assessment to the Medical Assessor was in respect of the degree of permanent impairment of the worker as a result of an injury. The Medical Assessor has provided an opinion on matters beyond the scope of the medical dispute referred for assessment;
(b)    the Medical Assessor confirms an assessment of 4% WPI in respect of each shoulder, however, has deducted the WPI entirely. The deduction is not made due to any previous injury or pre-existing condition or abnormality. The basis for the deduction is not justified and is extraordinary in circumstances where the right and left shoulders were referred for assessment;
(c)    the Medical Assessor provided an assessment of 0% WPI in respect of the cervical spine notwithstanding his findings on clinical examination that the appellant has “one third of normal range of movement of the cervical spine”, and
(d)    the Medical Assessor found normal range of movement in the appellant's left ankle, notwithstanding his observations on physical examination that the appellant “walked with a limp and could not walk on her tip toes and on her heels. She could not do a full squat. She wears orthotics in her shoes”.
The Panel agreed with the thrust of the appellant’s submissions such that we recommended a re-examination.
Medical Assessor Bodel reported as follows:
“1. The workers medical history, where it differs from previous records.
I have reviewed the history recorded by Dr Shahzad in his MAC dated 16 May 2023.
The history that has been obtained is well documented. I would point out that this lady has worked in disability services initially for ADAC, since about 2011. This was similar disability work at the same group home in Mount Druitt, which catered for five female clients with varying clinical diagnoses, including cerebral palsy and epilepsy, the client associated with the injury, a rather aggressive autistic client, a bipolar client, and one with Down syndrome. All at times could be quite heavy and physical.
The management of the house transferred from the government run ADAC to the NDIS funded facility through Northcott Disability Services Pty Ltd in about 2016. She had, therefore, been doing this work for about seven years at the time of the injury, although only for two years with Northcott.
The injuries occurred in the manner described. The treatments have also been outlined.
2. Additional history since the original Medical Assessment Certificate was performed
This lady has had no further accident or injury since her assessment on 16 May 2023. She has had some re-training since her injury and did 12 months’ work in medical receptionist work, which was supported by the insurer, but after the support ran out, the job was terminated. She is now doing further studies. She is considering re-training to do aged care work rather than disability support work.
I do again confirm that the primary injury initially was neck, left shoulder and left elbow, and the left foot and ankle, although the ankle was a minor complaint initially, and then with the passage of time it spread to involve her right shoulder as well as the neck and the left shoulder and elbow.
The initial day of injury was most painful in the left shoulder and left elbow.
3. Findings on clinical examination
Ms Pathak is 48 years of age. She is comfortable when sitting on a chair. She is 5ft 2 inches tall and weighs 74kg.
She has a very slight restriction of neck flexion, extension and rotation, and on repeated observation this is symmetrical throughout. There is no visible sign of asymmetry of movement and no guarding or spasm. She has a restricted range of shoulder movement and this is recorded in the following table. The goniometer has been used to assess range of motion.
Shoulder Movements
Active ROM Measured RIGHT:
Flexion 140°: Extension 40°: Adduction 20°: Abduction 120°: Internal Rotation 60°: External Rotation 60°
Active ROM Measured LEFT:
Flexion 160°: Extension 40°: Adduction 20°: Abduction 140°: Internal Rotation 70°: External Rotation 70°.
There is impingement in both shoulders but no instability. There is tenderness over the rotator cuff anteriorly in each shoulder. There is tenderness over the lateral epicondyle of the left elbow but there is a full range of elbow movement and no restriction of wrist or hand movement. There is no neurological abnormality in the upper limbs. The reflexes are present and equal, and there is no clinical sign of radiculopathy.
There is a good range of lateral bending and rotation of the thoracic spine and no impairment of straight leg raising.
There is a restricted range of ankle movement on the left-hand side…
There is no neurological abnormality in the lower limbs. There is no measurable wasting in either thigh or calf, and there is no instability in the ankle. There are no clinical signs of radiculopathy.
4. Results of any additional investigations since the original Medical Assessment Certificate.
I note the reports of the MRI scans of the right shoulder, the left elbow, the left shoulder, the ultrasounds of the right shoulder, the MRI scan of the cervical spine, and ultrasounds of the left elbow and left shoulder. These have been produced here again today and I agree with the interpretation in the MAC.
5. Opinion
Ms Pathak has ongoing assessable impairment, principally in both shoulders, the right slightly worse than the left, and in the left ankle as a consequence of the injury that occurred on 20 October 2018.”
(The impairment assessments are as set out in the attached Table).
For these reasons, the Appeal Panel has determined that the MAC issued on 16 May 2023 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:	W1522/23
Applicant:	Purmina Pathak
Respondent:	Northcott Disability 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 Farhan Shahzad, and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1. Cervical spine	20 Oct 2018	Chapter 4	Cervical Category I Table 15-5, Page 392	0%	Nil	0%
2. Right Upper Extremity (shoulder)	20 Oct 2018	Chapter 2	Figure 16-40 Page 476 Figure 16-43 Page 477 Figure 16-46 Page 479	6%	Nil	6%
3. Left Upper Extremity (shoulder)	20 Oct 2018	Chapter 2	Figure 16-40 Page 476 Figure 16-43 Page 477 Figure 16-46 Page 479	4%	Nil	4%
4. 4. Left Lower Extremity (ankle)	20 Oct 2018	Chapter 3	Table 17-11 Page 537	3%	Nil	3%
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					13%

[2023] NSWPICMP 472

27 September 2023