Portelli v Marble Group Pty Ltd
[2021] NSWPICMP 31
•22 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Portelli v Marble Group Pty Ltd [2021] NSWPICMP 31 |
| APPELLANT: | Jason Portelli |
| RESPONDENT: | Marble Group Pty Ltd |
| APPEAL PANEL: | Member John Wynyard Dr Margaret Gibson Dr Brian Noll |
| DATE OF DECISION: | 22 March 2021 |
CATCHWORDS: | WORKERS COMPENSATION- Whether contralateral small joints in the hand showing pronounced restriction of movement was “normal” to be used as a base line; Chapter 2.20 of the Guidelines considered; Nguyen v Pasarela Pty Ltd [2020] NSWSC considered; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 November 2020 Jason Portelli, the appellant, lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr David Crocker, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 30 October 2020.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· 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 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.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is a reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
Following Consent Orders on 21 August 2020 a delegate of the Registrar on 20 October 2020 made an amended referral for an assessment of permanent impairment caused to the “right upper extremity (wrist, hand, shoulder) – consequential injury” by injury on 29 January 2015.
The Consent Orders, when compared to the original pleadings in the ARD form, demonstrate that by consent a number of claims for compensation had not been pressed, amongst them, the claims for injury to the left arm and the left wrist:[1]
“Injury Description / Cause of Injury
Neck, right arm, right shoulder, right elbow, right hand, right thumb, left arm, left wrist
On or about 29 January 2015 the applicant was working at a bench gluing wooden boxes together. Once the glue was applied, he then had to take the boxes to hold them together whilst the glue tried. He was using masking tape. As he was taping one of the boxes, the piece of tape that he was applying snapped. As a result he banged his hand forcibly against a bench causing a hyperextension injury to his thumb and wrist. [H]e has since suffered a consequential injury to his right shoulder and neck as a result of over compensating.”
[1] Appeal papers page 45
Mr Portelli was employed as a cabinet maker. He was referred to Dr Michael Dowd, Plastic, Reconstructive and Hand Surgeon who took Mr Portelli to surgery on 13 March 2015 for treatment of de Quervain’s tenosynovitis.
The surgery was unsuccessful and Mr Portelli was referred to Dr Jonathan Herald, Consultant Orthopaedic Surgeon with whom he came to multiple surgical interventions regarding the right wrist inclusive of debridement and carpal tunnel surgical release.
The AMS certified 14% WPI.
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.
The appellant did not request to be re-examined by an AMS who is a member of the Appeal Panel.
Fresh evidence
The appellant sought to introduce evidence from Mr Portelli’s General Practitioner Dr Homsi who supplied a two line medical certificate dated 12 November 2020. It stated that
Mr Portelli had been seen by Dr Homsi on 17 September 2018 complaining of, relevantly, left wrist pain “most likely due to overuse compensating for injured right wrist”.Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The appellant submitted that the certificate was evidence that “did not exist” prior to the assessment because it was dated 12 November 2020. It was submitted that it could not reasonably have been obtained prior to the medical assessment as there was no claim made regarding the left wrist. The content of the certificate was relied on to establish that the left hand could not be considered normal.
We regard this application as being somewhat disingenuous. In the first place, the evidence of the complaint was available, and indeed before the AMS at the time of the assessment. In an entry of 17 September 2018 Dr Homsi recorded:[2]
“AGAIN RIGHT WRIST PAINALSO LEFT WRIST
WHIKE TRYINGTO GOT INTO HIS VAN USED HIS RIGHT HAND.”(As written).
[2] Appeal papers page 136.
What was not recorded were the words “most likely due to overuse compensating for right wrist injury.” We assume that this opinion post-dated the medical assessment on 30 October 2020. In spite of there being a claim for injury to the left wrist in the ARD, as we have indicated, it was not pressed. Moreover, there was no support for a left wrist overuse syndrome in any of the medico-legal opinions before the AMS. The fresh evidence relied upon is Dr Homsi’s opinion of 12 November 2020 as to why she made an entry on 17 September 2018. We consider it to be an ipse dixit, unsupported by reference to the facts and circumstances upon which it was based, and, as indicated, unsupported by specialist opinion.
In Lukacevic v Coates Hire Operations Pty Ltd[3] Hodgson JA with whom Hanley AJA agreed, said at [80]:
“…it would be reasonable for an [Appeal Panel] not to admit [fresh] evidence unless that evidence had substantial prima facie probative value, in terms of its particularity from a plausibility and/or independent support.”.
[3] [2011] NSWCA 112 (Lukacevic).
This evidence has no such prima facie probative value and is rejected.
We note the respondent relied on Ross v Zurich Workers Compensation Insurance[4] but with respect that case is distinguishable as it was concerned with the appellate procedure within the Commission. The legislative provisions therein considered was not applicable to this jurisdiction.
[4] [2002] NSWWCCPD 7.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the AMS that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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 appeal
The appellant submitted that the AMS had fallen into error when he found that the 23% upper extremity (UEI) range of motion in the small joints of Mr Portelli’s left hand was “normal”. The range of motion in the small joints of the right hand the AMS found to be 28% UEI, so that when one was taken from the other, as was required by the Guides, a 5% UEI was determined. In fact the range of motion in the small joints of left hand was not normal, and the contralateral measurement accordingly should not have been deducted pursuant to the provisions of Chapter 2.20 of the Guides. The result would be that the MAC was revoked, and a 28% UEI finding be substituted for the 5% UEI certified.
Evidence
In his examination the AMS measured the active range of motion in the small joints of both hands. He also measured the active range of motion in both shoulders and wrists.
In his diagnosis, the AMS remarked on his findings in the left wrist by saying:[5]
“…. Neurophysiological studies also demonstrated changes consistent with carpal tunnel syndrome at the right wrist (and to a lesser extent of at the left wrist)….”
[5] Appeal papers page 29
In his explanation of his calculations, the AMS did not use the contralateral active range of shoulder motion as a baseline, as he found that the limitation of the range of motion in the left shoulder was negatively impacted by Mr Portelli’s cervical spine complaints.
When explaining his calculations regarding the small joints of the right hand the AMS said:[6]
“…….When undertaking [active range of motion] assessment with respect to the left hand, a 23% upper extremity impairment is determined. It is considered that this latter finding is ‘normal’ for Mr Portelli and, therefore, this should be subtracted from the finding in relation to the right hand. When this is undertaken, a 5% upper extremity impairment is determined”.
[6] Appeal papers page 31
We were referred by the appellant to the evidence within the case that referred to the left wrist or hand. This included:
· Dr Jonathon Herald, Orthopaedic Surgeon, 15 April 2016:[7]
[7] Appeal papers page 116
“He can do work predominantly through his left hand.”
· Dr Ka Haeng Ng, physiotherapist, 1 June 2018:[8]
[8] Appeal papers page 89
“Demonstrated defensive and compensatory movement with the [left hand] due to fear of aggravating his pain.”
i.Dr Rachel Homsi clinical notes 17 September 2018:[9]
[9] Appeal papers page 136, as indicated when considering "Fresh Evidence."
“Again right wrist pain also left wrist
While trying to get into his van used right hand”ii.Dr Rachel Homsi clinical notes dated 5 February 2019:[10]
[10] Appeal papers page 133.
“wrist and shoulder pain getting problems with left wrist.”
iii.Dr Rachel Homsi clinical notes dated 13 February 2019:[11]
“phone call from Brett GIO having problems with left hand from overusing it
also shoulder pain.”· Alexander Brown, Rehabilitation Consultant with Kairros Pty Ltd, 16 July 2019:[12]
“DIAGNOSIS: Right lower for arm pain (tenosynovitis) post arthroscopy, right wrist pain, left wrist pain.”
[11] Appeal papers page 85.
[12] Appeal papers page 261.
Further entries were referred to that mentioned the left wrist.
In his statement of 21 June 2020 Mr Portelli recounted his symptoms since the occurrence of the subject injury without mentioning any symptoms in his left hand or wrist. He did complain of suffering an overuse syndrome, but not in his left hand or wrist. He said:[13]
“In About November 2017, I returned to Sydney and returned to Maneto, but in the employment of a related company, Able Joinery. My doctor put me on light duties which required me to carry no more than 5 kilo using my right wrist The insurance company's rehabilitation specialist however said that I can fully use my right arm and I should use my forearms to lift heavy items. After about 4 months of lifting using my forearms, I began experiencing pain in my right shoulder and neck. I went to see
Dr Herard and he referred me to have an MRI. The MRI showed I had a partial tear in my right shoulder and bulging disks in my neck. I underwent physio but my symptoms did not improve. Dr Herald then referred me to Dr Dowla however the insurer would not pay for my treatment. I therefore resigned in October 2019 as I was in too much pain work in my trade.”[13] Appeal papers page 50 [15].
Mr Portelli continued that he had since found employment as a supervisor and draughtsman with another company.
Submissions
Mr Portelli
The appellant contended that the AMS had not applied Chapter 2.20 of the Guides correctly. The evidence traversed by the appellant demonstrated complaints about pain in the left wrist and hand, which raised an inference that the restriction in the range of motion in the small joints of the left hand was not normal, the appellant argued. That being the case, Chapter 2.20 prohibited the AMS from utilising the contralateral measurement, and he should have found a loss of 28%UEI.
Mr Portelli submitted that there was no evidence that he had suffered any pre-existing disability in his left hand, and the evidence showed that he was protecting his injured right hand by favouring his left hand. Moreover, it was submitted, the restriction of left hand motion measured by the AMS was significant and the AMS was required pursuant to Chapter 2.20 to consider not only whether the contralateral joint was “normal,” but whether it was “uninjured.”
The respondent
The respondent submitted that the provisions of Chapter 2.20 of the Guides were complied with by the AMS.
We were referred to Nguyen v Pasarela Pty Ltd,[14] in which Adamson J considered the application of Chapter 2.20 of the Guides. The AMS had satisfied the steps set out by Her Honour for compliance with this guideline, the respondent submitted.
[14] [2020] NSWSC 1730 per Adamson J (Nguyen).
The respondent referred to the reasons given by the AMS for not accepting the contralateral range of motion exhibited in the left shoulder, and submitted that we could therefore be satisfied that he took the same care in coming to his decision about the small joints of the left hand. Although they exhibited a 23% upper extremity impairment, nonetheless the opinion of the AMS that they were normal was open to him.
We were referred to the Consent Orders of 21 August 2020, and the agreement that the appellant did not press any claim for injury or consequential condition to his left arm or wrist. The effect of that concession meant that the appellant abandoned any suggestion that there had been also a consequential condition to the left hand.
Moreover, the respondent submitted most of the references relied on were addressed to the left wrist and were not relevant to the finding by the AMS.
The respondent also submitted that the statement made by Mr Portelli did not make any complaint about his left wrist or hand, notwithstanding that his medico-legal referee,
Dr Poplawski, reported a reduced range of motion in both the left and right hand but without diagnosing any injury or condition in the left hand or wrist.
DISCUSSION
Chapter 2.20 of the Guides provides relevantly:[15]
“Calculating motion impairment
2.20 When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543).”
[15] Guides page 12.
In fact the page number given for the AMA 5 should be page 453. It reads:
“The measurements reported in the impairment tables and pie charts reflect the accepted average active range(s) of motion for each joint. However, certain people can have either lesser or greater joint flexibility than average. It is therefore most important to always compare measurements of the relevant joint(s) in both extremities.”
If a contralateral “normal” joint has a less than average mobility, the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the report.”
(Emphasis as written).
In Nguyen the worker alleged that the AMS had failed to properly apply Chapter 2.20. A previous Arbitral determination had found that there was no injury caused to the contralateral joints which the AMS had measured as part of his assessment. The contralateral joints were the shoulder and the wrist joints. Adamson J said:[16]
“AMA5, section 16.4c addressed two situations: first, the usual or orthodox situation where the person being assessed had accepted average active range(s) of motion for each non-involved joint as reported in the impairment tables and pie charts; and, second, where the contralateral “normal” joint has a less than average mobility where the deduction method would be appropriate. As cl 2.20 of the Guidelines indicates, it is important in either case to compare measurements of involved and contralateral joints. Clause 2.20 requires the rationale for the decision as to how to measure the relative impairment (by reference to the contralateral) to be explained and references the relevant section of AMA5.”
[16] At [59]
In the present case the AMS considered the provisions of Chapter 2.20 in relation to each joint referred to him, that is to say, the shoulder joint, the wrist joint and the hand joint. He declined to accept the contralateral range of motion as a baseline for the shoulder assessment because of the involvement of the cervical spine.
With regard to the wrist joint, again the AMS found that the contralateral left wrist demonstrated changes consistent with carpal tunnel syndrome and accordingly did not apply a contralateral measurement.
The rationale for the assessment regarding the right hand may be found in his reference to the criteria set out by Chapter 2.20 - particularly that measurement of the small joints of the left hand had resulted in a 23% UEI, which he described as “normal.”
In considering whether the rationale has been adequately explained, Adamson J in Nguyen considered the following points at [61]:
1. The Arbitral decision meant that no injury had been suffered to the contralateral joints.
2. Notwithstanding, there was a loss of active range of motion in the relevant contralateral joint which, on the facts of the case before her, were caused either partly or wholly by abnormal illness behaviour.
3. As a result the average range of motion provided for in the impairment tables and pie charts could not be applied.
4. The criteria set out in Chapter 2.20 was at least suitable, if not required under these circumstances to calculate impairment for loss of range of movement.
There are some parallels in the present situation:
1. The Consent Orders of 21 August 2020 had the effect that no injury had been suffered to the left hand, as no such allegation had been made in the pleadings although claims for injury/consequential condition to the left wrist and left arm had been pleaded but abandoned.
2. Notwithstanding, there was a loss of active range of motion in the left contralateral joints. The AMS found that Mr Portelli’s presentation was straightforward and undemonstrative, so that it follows that Mr Portelli was one of those “certain people” referred to in AMA5 who has less joint flexibility than average.
3. As a result the impairment tables and pie charts could not be applied.
4. Accordingly, the provisions of Chapter 2.20 were suitable to calculate the impairment.
We reject the appellant’s interpretation that a finding of 23% UEI meant that the small joints of the left hand were not “normal”. Although the appellant spent some time referring to any reference to the left wrist or hand within the evidence, there was no basis for an inference that Mr Portelli had injured the small joints of his left hand, or that the condition of the left hand was as a result of a consequential restriction of motion.
Whilst a compensable condition/injury had originally been pleaded in the ARD, inasmuch as it was then alleged that there had been injury to the left arm and the left wrist, there had never been any claim for a left-hand disability. Moreover, Mr Portelli had never mentioned such a condition, either in his statement of 21 June 2020 or in any of the histories he gave to the medical practitioners.
In his statement Mr Portelli described in some detail the consequences of his right wrist injury when he was required to use his forearms. Mr Portelli said that such a requirement resulted in pain in his neck and his right shoulder. He made no mention of any symptoms in either his contralateral shoulder or wrist at a time when it might reasonably be expected that such a complaint would have been made, had any such symptoms been present. Whilst
Mr Portelli was noted as occasionally complaining of left wrist pain in the medical evidence, and whilst an allegation of injury was made in that regard, there has never been a claim made with regard to the left hand.Although the appellant submitted that there was sufficient evidence that an inference could be drawn from the few entries that appear about the left hand, it is dangerous to rely on the clinical notes of health professionals, as was discussed by Basten JA in Mason v Demasi[17] at [2]. Such entries should be approached with caution because their evidentiary value can be compromised by the circumstances under which they were made.
[17] [2009] NSWCA 227
At best, the appellant was inviting us to speculate that the small joints of the left hand were not normal, but the rationale for the existence of Chapter 2.20 is that baseline measurements from contralateral joints can be relevant as there are people in the community whose range of motion can be more limited than that of normal people.
In Nguyen, Adamson J said at [67]:
“… I am not persuaded that there is any inadequacy in the Appeal Panel ‘s reason for [finding that Chapter 2.20 was “the best method”]. Its view, as expressed in his reasons, was the product of its own expertise. Indeed, given that the contralateral joint… exhibited a restricted range of motion, the average figures in the pie charts and tables were plainly inapposite. This left, as the only alternative method expressly contemplated by cl 2.20 and the relevant portion of AMA5 for assessing impairment in the joint, the comparison between the injured and the non-injured joints. The obvious applicability and suitability of the deduction method meant that the reasons of the AMS, and in turn, the Appeal Panel needed only to be brief to be sufficient. Thus, it did not follow from the Appeal Panel’s conclusion that the AMS did not explain the rationale for using the deduction “beyond noting that the guidelines required that it be done” that more was required since the AMS’s reasons were sufficient to explain why cl 2.20 applied and why the deduction method was appropriate.”
For these reasons, the Appeal Panel has determined that the MAC issued on 21 August 2020 should be confirmed.
John Wynyard
Member
Dr Margaret Gibson
Medical Assessor
Dr Brian Noll
Medical Assessor
22 March 2021
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