Ready Workforce (a Division of Chandler Macleod Group) Pty Ltd v Geary
[2022] NSWPICMP 362
•15 September 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ready Workforce (a Division of Chandler Macleod Group) Pty Ltd v Geary [2022] NSWPICMP 362 |
| APPELLANT: | Ready Workforce Pty Limited |
| RESPONDENT: | Rodney Geary |
| Appeal Panel | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Dr Mark Burns |
| MEDICAL ASSESSOR: | Dr James Bodel |
| DATE OF DECISION: | 15 September 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of whole person impairment (cervical spine, left upper extremity - shoulder); whether Medical Assessor (MA) erred in making a 2% allowance for restrictions on activities of daily living; whether MA erred by failing to deduct more than 1/10th for the effects of pre-existing pathology; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Assem dated 11 May 2022.
Dr Assem had assessed a 17% impairment of the whole person (left shoulder 12%; cervical spine 6%) as a result of injury on 2 December 2019. On that date, Mr Geary had injured his left shoulder while opening the door of a cool room at work, weighing about 100kg. Dr Assem found that, in the weeks following left shoulder surgery on 12 December 2019, Mr Geary slept in a reclining chair with his left arm in a sling, which aggravated pre-existing degenerative pathology in the cervical spine.
In assessing 12% for the left shoulder, Dr Assem assessed a 13% whole person impairment using the range of motion method, and deducted 1/10th for the effect of pre-existing pathology evidenced by an MRI taken on 4 December 2019, which showed a complete tear of the supraspinatus tendon with retracted tendon fibres.
In assessing 6% for the cervical spine, Dr Assem allowed 2% for limitations on the activities of daily living, yielding a 7% whole person impairment, and deducted 1/10th for the effects of a pre-existing degenerative condition.
The appellant alleges demonstrable error and the application of incorrect criteria in the making of the allowance of 2% for restrictions in the activities of daily living in respect of the cervical spine, and the failure to deduct more than 1/10th for pre-existing conditions in respect of both body parts.
The Appeal Panel conducted a preliminary review of Dr Assem’s medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
Submissions
Written submissions provided by both parties have been taken into account.
After eight pages of history and legislative extracts, the appellant’s grounds of appeal appear in the 28 sub-paragraphs of [4] of its submissions. They are divided into four grounds of appeal. The grounds are in part repetitive, and the second ground seems to conflate two distinct grounds of appeal with respect to the deductions made for the left shoulder and cervical spine. Doing our best to understand them, the appellant’s grounds of appeal may be summarised as follows:
(a) in making an allowance of 2% for restrictions on the activities of daily living (ADL’s) with respect to the cervical spine, Dr Assem failed to apply [1.25] of the Guidelines, which requires that there be objective evidence of the impact of the diagnosed condition on ADL’s. Dr Endrey-Walder’s report, relied on by the worker, is not objective evidence in support. In any case, he identified only mild limitation of ADLs, and made no allowance for it in his assessment;
(b) Dr Assem erred by failing to give reasons for assessing the allowance at 2%;
(c) in making a 1/10th deduction in respect of the left shoulder, Dr Assem erred in two respects:
(i)he failed to give reasons for assessing the deduction at 1/10th, and for failing to apply the deduction of 50% made by Dr Smith, and
(ii)his deduction was impermissible, because it was at odds with the available evidence, namely the X-ray of 9 March 2020.
(d) in making a 1/10th deduction in respect of the cervical spine, Dr Assem failed to give reasons justifying the quantification.
The respondent worker submits as follows:
(a) in his report of 24 August 2020, Dr Endrey-Walder accepted that the injury caused restrictions in ADL’s even though, for some reason, he did not make an allowance for them. As an independent medical examiner, his expert evidence is objective evidence, satisfying the requirement of [1.25]. Further objective evidence in support, not disclosed in the appellant’s submissions, is contained in the report of Physiotherapy Professional Parramatta dated 30 April 2020;
(b) in any event, [1.25] does not require that, in the absence of objective measurement by physiotherapist or similar, no allowance may be made for ADL’s;
(c) having regard to all the radiological and other evidence, including the X-ray results of 9 March 2020, a finding that the extent of the deduction was difficult or costly to determine was the only finding reasonably available, justifying the deduction of 1/10th in respect of the cervical spine and left shoulder, and
(d) the reasoning of Dr Assem as to why he made a 1/10th deduction in each case was patent. He was not bound by the opinion of Dr Smith that a 50% deduction should be made. He was, on the contrary, required to exercise his own clinical judgment, which he did.
Activities of daily living
Paragraph 1.24 of the Guidelines provides:
“The ADL which should be considered, if relevant, are listed in AMA5 Table 1–2 (p 4).”
Paragraph 1.25 provides:
“The assessment of the impact of the injury or condition on ADL should be verified, wherever possible, by reference to objective assessments – for example, physiotherapist or occupational therapist functional assessments and other medical reports.”
The words, ‘wherever possible’, implicitly acknowledge that there will be situations where such reference is not possible, for instance where there are no assessments or other medical reports available of the kind described. Paragraph 1.25 does not provide that no allowance for ADL’s may be made unless that kind of evidence is available.
In this case, such evidence was available to Dr Assem.
Paragraph 8 of the report of Physiotherapy Professional Parramatta dated 30 April 2020 contained objective measurements of the worker’s functional tolerances.
Dr Endrey-Walder’s report of 24 August 2020 is also a medical report which contains an objective assessment, as required by [1.25]. In it, Dr Endrey-Walder expressed the following conclusion as to restrictions in ADL’s:
“Mr. Geary was able to be a Carer for his elderly father following the right shoulder injury and operation, but this was no longer the case after having hurt his left shoulder, necessitating him moving in with his niece who is now looking after him on a day to day basis.
Not only is he incapable of performing any meaningful work around the house, but he needs personal help and assistance as well, especially getting dressed on a daily basis. I watched his niece automatically rising from her seat to help him get his pullover off for the examination, so I have no difficulty accepting his significant reliance on her.”
In doing so, he accepted the history given him by the worker that he had ceased to care for his father post injury, and moved in with his niece. That is consistent with the statement evidence, and not contested by the appellant. He accepted other evidence of the worker as to his daily living activities, as he was entitled to do. In part, the assessment relies on the doctor’s own objective observations at examination. The evidence of his opinion as to ADL’s, read as a whole, is nonetheless objective evidence contained in a medical report, of the kind required by the Guidelines.
Even if, contrary to our view, there was no objective evidence available with respect to ADL’s, for the reasons already given, the Guidelines do not preclude an allowance being made by the Medical Assessor, based on the exercise of his or her own clinical judgment and other evidence.
Though he found there was restriction in ADL’s, Dr Endrey-Walder did not make an allowance for it. That might have been an oversight, but we are unable to say. It is highly unlikely that he considered they merited an allowance of 0%, given the absence of any explicit finding to that effect, and the extent of the restrictions identified by him. Even if, though he did not say so, he considered that the restrictions merited an addition of 0%, that would neither bind a Medical Assessor, nor preclude him or her from assessing restrictions on ADL’s.
We consider that the requirements of [1.25] were satisfied. Even if they were not, the Medical Assessor was entitled to make an allowance for restrictions on ADL’s. We can discern no error, or the application of incorrect criteria.
Reasons for assessing a 2% allowance
As indicated, Dr Assem allowed 2% for the effects on ADLs.
He expressed his reasons at [4], under the heading “Social history” – emphasis added:
“He lives with his niece and sister in a property …. He relies on his sister for assistance with all of his domestic activities of daily living. He informed me that his sister sometimes helps him with dressing and sometimes helps him to scrub his back when showering. He is otherwise independent in his self care and personal hygiene.”
That reasoning was more than sufficient to justify an allowance of 2% for ADL’s. The respondent’s inability to scrub his own back in the shower without assistance was, in our view, particularly telling. An assessment of 2% was reasonably open to the assessor, if conservative.
We can discern no error, or the application of incorrect criteria.
Deduction for pre-existing condition of the left shoulder
As indicated, Dr Assem deducted 1/10th for a pre-existing condition of the left shoulder. He did so on the basis that – at [10a]:
(a) radiological imaging taken soon after the subject injury – which we take to mean the MRI of 4 December 2019 – showed a retracted tendon tear indicating long-standing pathology pre-dating injury on 2 December 2019, and
(b) its contribution to permanent impairment was difficult or costly to determine.
Dr Smith, on whose report the appellant relies, agreed that there was pre-existing pathology in the left shoulder, and made a deduction of one half. The appellant complains that
Dr Assem failed to give reasons for failing to apply the same deduction as Dr Smith.The reasons were made plain by Dr Assem at [10c]. He noted that Dr Smith’s assessment was based on his finding that the worker had aggravated pre-existing asymptomatic arthritis of the left glenohumeral joint, which in turn was based on X-rays taken on 9 March 2020.
Dr Assem noted the opinion of Dr Endrey-Walder that the operation report of 24 August 2020 showed no evidence of glenohumeral osteoarthritis.
The pre-existing condition for which Dr Assem made an allowance was not arthritis, but the rotator cuff tear with retracted tendons demonstrated by the MRI dated 4 December 2019.
His reasons must be read as a whole. Unlike Dr Smith, Dr Assem made no deduction for pre-existing arthritis of the left shoulder, because he did not accept there was any such pre-existing condition. He made an allowance for a different condition – namely a rotator cuff tear. That is sufficient to explain why he quantified the contribution differently from Dr Smith.
Dr Assem was not bound to make the same deduction as Dr Smith or to make a deduction on the same basis as did Dr Smith. His reasons for not doing so are, in our view, patent. We can discern no error.
The X-ray report of 9 March 2020 was in the material provided to Dr Assem (and to this Panel), and was referred to by Dr Assem in his discussion of Dr Smith’s report at [10c]. We are satisfied that he took that report into account.
In it, radiologist Dr Moharami reported, among other things – emphasis added:
“Minimal degenerative OA of the glenohumeral joint.”
In his report of 27 May 2020, Dr Smith summarised that report in the following terms:
“There was osteoarthritis in the glenohumeral joint and the AC joint.”
Though accurate so far as it went, that summary did not reflect the whole of Dr Moharami’s findings with respect to arthritis. Such arthritis as was identified radiologically was ‘minimal’.
In our view, radiological evidence that there was ‘minimal’ arthritis was incapable of providing a proper basis for a finding that, as at the date of assessment, pre-existing arthritis made any contribution to permanent impairment caused by the supraspinatus tear, glenohumeral capsulitis and bursitis diagnosed by Dr Assem. Nor did it provide an evidentiary basis for finding that, but for the pre-existing arthritis, the current impairment would be less.
In any event, the presence of ‘minimal’ arthritis in 2009 is not at odds either with a finding that arthritis made no ongoing contribution to permanent impairment caused by the pathology diagnosed by Dr Assem, or with a finding that the contribution of pre-existing pathology – in this case, a pre-existing tear of the supraspinatus – was difficult or costly to determine.
The latter finding was well open to Dr Assem on the evidence before him, and necessitated assessment of the deduction at 1/10th: section 323(2), Workplace Injury Management and Workers Compensation Act 1998.
We can discern neither error, not the application of incorrect criteria.
Deduction for a pre-existing condition of the cervical spine
As indicated, Dr Assem deducted 1/10th for a pre-existing condition of the cervical spine. He did so, on the basis that there was pre-existing pathology of the cervical spine at multiple levels, as disclosed by an MRI taken on 24 June 2020, which demonstrated multilevel cervical spondylosis and facet arthropathy from C3/4 to C6/7 – at [6]. He observed at [7], “Radiological imaging identified age related degenerative pathology at multiple levels”.
He found at [8f] that the cervical spine was affected by the pre-existing condition, which was consistent with the radiology.
Paragraph 1.28 of the Guidelines requires an assessor to indicate the degree of impairment due to any pre-existing condition, and provides:
“For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
The appellant does not suggest that a 1/10th deduction was at odds with the MRI scan of
24 June 2020, or with any other evidence, or indicate reasons why the deduction was at odds with the evidence, if that is alleged. In our view, it was not at odds with the available evidence.Dr Assem found at [11a] that the extent of the deduction was difficult or costly to determine. That was a finding open to him on the evidence. It seems to us to be correct. We can identify no evidentiary basis for any other finding. None is suggested by the appellant.
That finding necessitated a deduction of 1/10th in respect of the cervical spine, which was made. We can discern neither error nor the application of incorrect criteria.
Conclusion
For those reasons, the Medical Assessment Certificate of Dr Assem is confirmed.
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