Ready Workforce (A Division of Chandler Macleod) Pty Ltd v Debattista
[2024] NSWPICMP 312
•22 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ready Workforce (A Division of Chandler Macleod) Pty Ltd v Debattista [2024] NSWPICMP 312 |
| APPELLANT: | Ready Workforce (A Division of Chandler Macleod) Pty Ltd |
| RESPONDENT: | Dianna Debattista |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 22 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; wrist injury aggravating Keinbock’s disease; Medical Assessor (MA) diagnosed carpal tunnel syndrome as had some other examiners; no nerve conduction studies as required by AMA 5; assessment of the range of motion; whether MA was required to explain why his assessment differed from other examiners; State of NSW (NSW Department of Education) v Kaur referred to; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 February 2024 Ready Workforce (A Division of Chandler Macleod) Pty Ltd (Ready Workforce) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Tim Anderson, who issued a Medical Assessment Certificate (MAC) on 8 January 2024.
Ready Workforce 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
In 2015, Ms Debattista was placed by Ready Workforce, a labour hire agency, at a warehouse to work as a picker and packer. As a result of her duties she began to experience left wrist pain in 2017 and she ceased work in December 2017. She sought medical attention in 2018 and an MRI scan of her wrist on 8 May 2018 revealed Keinbock’s disease, a failure of the blood supply to the lunate bone.
Dr Myers recommended surgery which was undertaken in late 2018, being decompression of the lunate with vascularised bone grafting and osteotomy of the capitate with internal fixation. In 2019 Dr Myers observed early Keinbock’s disease in Ms Debattista’s right wrist and undertook surgery on 28 October 2020, being vascularised bone graft to the right lunate bone as well as capitate bone shortening with osteotomy and internal fixation. On 27 April 2022 Dr Myers carried out a mid-carpal fusion of Ms Debattista’s left wrist.
In February 2018 an ultrasound of the left wrist showed thickening of the median nerve in Ms Debattista’s left wrist but nerve conduction studies on 16 April 2018 did not show carpal tunnel syndrome. In September 2019 Dr Myers noted that Ms Debattista had bilateral median nerve symptoms for which she was wearing splints prescribed by her physiotherapist. In December 2019 Dr McGlynn, who saw Ms Debattista for Ready Workforce, said that she had symptoms and signs of left carpal tunnel syndrome which was not caused by work.
Dr Lai, who examined Ms Debattista at the request of her solicitors, diagnosed left carpal tunnel syndrome in his report dated 18 June 2020. By the time Dr Lim saw Ms Debattista in January 2022, she had begun to develop carpal tunnel symptoms in her right wrist.
The Medical Assessor was asked to assess Ms Debattista’s left upper extremity, right upper extremity and scarring.
The MAC
The Medical Assessor said that the documents to which he had particular regard were Ms Debattista’s statements and the assessment reports of Dr Lai for Ms Debattista and Dr McGlynn for Ready Workforce. He summarised the history and said:
“It was also identified that there was carpal tunnel syndrome bilaterally. At that stage, the left wrist seemed to be more severely affected than the right. A surgical decompressive procedure was conducted by Dr Myers on the left wrist on 26/09/18. This gave her limited improvement. Within the next 6 months or so, the condition of the right wrist deteriorated badly with associated pins and needles. A decompressive surgical procedure to the right wrist was conducted again by Dr Andrew Myers on 28/10/20 which also gave her limited improvement.
The condition of the left wrist continued and on 27/04/22, Dr Andrew Myers carried out a mid-carpal fusion of the left wrist. That tended to give some better control of the left wrist pain.
All of her subsequent clinical management has been conservative.”
The Medical Assessor recorded Ms Debattista’s present symptoms:
“Aching of both wrists. At the moment, the right wrist is more severely affected than the left. There is also weakness of both wrists and occasionally she is dropping items.
Particularly on the right side, there is tingling affecting the index, middle and ring fingers. If she is in a vehicle which goes over bumps, this causes greater irritation of the overall condition. She is able to drive for short, local trips but has had to change from a manual vehicle to an automatic. Finally, her sleep is disturbed by these features.”
With respect to the diagnosis of Keinbock’s disease, the Medical Assessor said:
“Attention is drawn to the earlier diagnosis of Keinboch’s disease. It appears to be a rather controversial issue as to whether this is fully or partially constitutional and the associated contribution of work in its aetiology.”
The Medical Assessor set out his findings on examination, including:
“Upper Limbs: There was a normal range of movement of the shoulders and the elbows. She had the following wrist movements:
MOVEMENT
RIGHT
LEFT
Flexion
20°
30°
Extension
30°
40°
Radial deviation
0°
0°
Ulnar deviation
10°
10°
…
Sensation to pin prick was reduced in the right wrist and hand in the median nerve distribution. This was not severe and was fairly subtle although was most certainly present. No other neurological dysfunction was identified.”
The Medical Assessor noted that there were no radiological investigations subsequent to the most recent surgery in April 2022.
Summarising the injuries and diagnoses the Medical Assessor said:
“Mrs Debattista developed pain and dysfunction initially of the left wrist and then later of the right wrist while working as a picker and packer. This involved operating a forklift and also pallet jacks. She is very lightly built and it has been identified that her occupation is the major contributing factor to the condition of the wrists. Nevertheless, two other features were identified on each side which included Keinboch’s disease and carpal tunnel syndrome. Keinboch’s disease is a condition where the vascular supply to the lunate bone becomes compromised. It tends to lead on to wrist pain and arthritic change.
Surgery has been conducted on the left wrist on two occasions and on the right wrist on one occasion. This has given her limited improvement although at this assessment she continued to have a lot of stiffness in her wrists together with relatively minor neurological findings on the right side.”
The Medical Assessor set out his measurement of the range of motion of each of Ms Debattista’s wrists. Setting out his calculations and commenting with respect to right median nerve dysfunction he said:
“This is addressed in AMA-5, P 492, T 16-15. The maximum sensory upper extremity impairment for the median nerve below the forearm is 39%. This is modified by T 16-10 on P 482. Grade 4 with 10% of the maximum is assessed. This results in a whole person impairment of 4%. This is combined with the 20% from the reduced range of movement, giving an upper extremity impairment of 23%.”
Commenting on the other reports in the file, the Medical Assessor said:
“My assessment is relatively close to the findings of Specialist Plastic Surgeon, Dr Min Fee Lai. The major differences are that at this assessment, the range of movement of the wrists was considerably less than Dr Lai measured. Similarly, the range of movements is less than that measured by Specialist Plastic Surgeon, Dr Michael McGlynn, in his report of 29/08/23. Dr McGlynn advised that he did not identify a median nerve injury although I do believe that this, whilst subtle, was very definitely in existence.”
Explaining the s 323 deduction, the Medical Assessor said:
“Attention is drawn to the Keinboch’s disease and also the carpal tunnel syndrome, both of which affected Mrs Debattista’s wrists bilaterally. These conditions are multi-factorial in aetiology and although there may well be a significant factor associated with occupation, there are also other non-work related factors. This is therefore most appropriately addressed by a deduction of one tenth on each side. This reduces the whole person impairment of the left wrist from 10% down to 9% and of the right wrist from 14% down to 13%.”
The Medical Assessor assessed 22% whole person impairment (WPI) comprised of 9% in respect of the left upper extremity (10% less one-tenth deduction under s 323), 13% WPI for the right extremity (14% less one-tenth under s 323) and 1% for scarring.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Debattista to undergo a further medical examination because the MAC does not disclose error and there is sufficient information in the file to determine the appeal.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Ready Workforce submitted that the Medical Assessor did not assess Ms Debattista in accordance with AMA 5 which requires that electroneurographic studies are necessary to diagnose median nerve dysfunction in addition to the history and symptoms and objective signs and findings on examination. It conceded that the latter two criteria were satisfied on the Medical Assessor’s examination. Ready Workforce said that both Dr Myers and Dr McGlynn, qualified on its behalf, observed that there were no nerve conduction studies. Ready Workforce submitted that the Medical Assessor erred demonstrably and applied incorrect criteria in reaching his diagnosis without that testing.
Ready Workforce also submitted that the Medical Assessor did not set out a path of reasoning to show how there could have been significant deterioration in the range of motion of Ms Debattista’s wrists since examination by the independent medical examiners qualified by the parties. It set out the observations of each practitioner who had examined Ms Debattista since 2019 and said that with two exceptions, all of the measurements derived by the Medical Assessor were less than those made by others. Ready Workforce said that the Medical Assessor failed to provide the actual path of reasoning to explain the deterioration, referring to Wingfoot Australia Partners v Kocak.[1]
[1] [2013] HCA 43 at [55].
In reply, Ms Debattista submitted that the Medical Assessor identified that his findings were relatively close to those of Dr Lai, qualified on her behalf, though the range of motion he observed was less. She said that the Medical Assessor made clinical findings on examination. She accepted that no nerve conduction studies had been performed on her right wrist. She said that although AMA 5 said that the tests should independently document the diagnosis, it could not be said they were mandatory and that AMA 5 set out the limitations of that testing.
Ms Debattista submitted that it was not necessary for the Medical Assessor to justify why his assessment of the range of motion differed from others. She submitted that even if it was determined that the Medical Assessor was not entitled to make a finding of median nerve impairment, his assessment of the range of motion should stand, resulting in an assessment of 20% WPI.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[3] the Court of Appeal held that an 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.
[3] [2006] NSWCA 284.
Diagnosis of median nerve compression
The Medical Assessor diagnosed right sided carpal tunnel syndrome and assessed permanent impairment as a result of median nerve compression. That is the correct assessment so long as all diagnostic criteria are fulfilled. The Medical Assessor’s diagnosis was made on the basis of his examination findings, including responses to testing, and Ms Debattista’s symptoms.
Nerve conduction studies undertaken in 2018 do not appear in the file. It is common ground that Ms Debattista has not undergone further nerve conduction studies.
The diagnosis has been made by other examiners. In September 2019 Dr Myers noted that Ms Debattista was suffering some median nerve symptoms and he noted that she was “checked for carpal tunnel” before she underwent any surgery. He considered that repeat nerve conduction studies were warranted. Dr Myers prepared a detailed report dated 16 June 2020 in response to a denial of liability for carpal tunnel syndrome. He said that the investigation of choice was nerve conduction studies.
In December 2019 Dr McGlynn said that Phalen’s test for carpal tunnel syndrome was positive on the left and negative on the right and that Tinel’s sign for nerve irritation was positive on the left but negative on the right. He noted that a nerve conduction study dated 16 April 2018 did not show electrical evidence of carpal tunnel syndrome. He considered that Ms Debattista had symptoms and signs consistent with left carpal tunnel syndrome which may be secondary to Kienbock’s disease but was not caused by manual work. Dr McGlynn said that Ms Debattista would benefit from left carpal tunnel release when a nerve conduction study confirmed the diagnosis.
Dr Lai diagnosed bilateral carpal tunnel syndrome, worse on the right, in his report dated 27 June 2023.
In August 2023 Dr McGlynn said that Phalen’s test and Tinel’s sign were negative on both sides and that there was no evidence of carpal tunnel syndrome.
AMA 5 provides:[4]
“The diagnosis of entrapment/compression neuropathy is based on (1) the history and symptoms; (2) objective clinical signs and findings on detailed examination; and (3) documentation by electroneuromyographic studies. …
The electroneurodiagnostic examination includes electromyographic (needle and cutaneous) examinations, which evaluate only motor unit potentials, and motor and sensory nerve conduction studies. most heavily myelinated axons; the lightly myelinated and unmyelinated axons that transmit pain are not directly evaluated. A fundamental point is that, regardless of the cause of nerve damage, the electro-diagnostic studies essentially can detect only two types of pathophysiology of the peripheral nerve system fibers: (1) axon loss (axonotmetic lesion), which is manifested as conduction failure, and (2) focal demyelination (neuropraxic lesion), which can cause either conduction slowing or conduction block, depending on the severity of the process. The severity of conduction slowing has no correlation with the severity of clinical symptoms, such as weakness or static large-fiber sensory loss. If these are present, substantial amounts of either conduction block, axon loss, or a combination of both must be present.
…
Only individuals with an objectively verifiable diagnosis should qualify for a permanent impairment rating. The diagnosis is made not only on believable symptoms but, more important, on the presence of positive clinical findings and loss of function. The diagnosis should be documented by electromyography as well as sensory and motor nerve conduction studies. However, it is critical to understand that there is no correlation between the severity of conduction delay on nerve conduction velocity testing and the severity of either symptoms or, more important, impairment rating.”
[4] At p 492-493.
The Guidelines do not provide any additional guidance though they provide that assessment of carpal tunnel syndrome is undertaken in the same way whether or not a worker has had surgery.
Though the authors of the relevant chapter of AMA 5 highlight the potential shortcomings of nerve conduction studies, the results are an essential element of the diagnosis. The Medical Assessor’s examination findings do indicate that Ms Debattista has carpal tunnel syndrome on the right but in the absence of nerve conduction studies, the assessment of permanent impairment for median nerve dysfunction cannot be made. The appropriate assessment for Ms Debattista’s right upper extremity is 20% WPI, which converts to 12% WPI, before the s 323 deduction.
Range of motion assessment
Ready Workforce set out the measurements of the range of motion going back to 2019. Ms Debattista has had three operations since then, the most recent being a mid-carpal fusion of her left wrist which inevitably would lead to a reduced range of motion. The purpose of that surgery was to relieve pain, not to increase the range of motion.
The Medical Assessor was required to assess Ms Debattista as she presented on the day of the examination[5] and to provide the path of reasoning to his decision. He is not required to agree with or choose between the assessments made by other examiners on other days.
[5] Guidelines paragraph 1.6.
In State of New South Wales (NSW Department of Education) v Kaur[6] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular, it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[6] [2016] NSWSC 346.
The Medical Assessor is an administrative decision maker and the presumption of regularity applies to the conduct of the examination and the preparation of the report.[7] It is to be presumed that he undertook his examination in accordance with chapter 2 of the Guidelines, using a goniometer and repeating testing if he was not satisfied that the results were reliable. The path of reasoning the Medical Assessor was required to set out was that leading to his own assessment of permanent impairment.
[7] Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175, [36].
The Medical Assessor set out the history he obtained and the range of motion he measured. He said that Ms Debattista’s presentation was consistent. He was alert to the fact that the range of motion was less than that measured by Dr Lai and by Dr McGlynn.
Dr Lai assessed Ms Debattista on four occasions and all of the examinations took place by videoconference. His report dated 18 June 2020 primarily addressed the causation of the condition in Ms Debattista’s right wrist and the need for the surgery then proposed. In his second report dated 25 January 2022 he said that Ms Debattista’s condition had not reached maximum medical improvement because she was waiting to see Dr Myers again to consider further surgery. In his report dated 1 November 2022, Dr Lai considered that Ms Debattista’s condition had still not stabilised. He noted that her pain was different on good days and bad days.
On the last occasion Dr Lai examined Ms Debattista in April 2023, he assessed 6% WPI in respect of Ms Debattista’s left upper extremity and 20% in respect of the right.
Dr McGlynn saw Ms Debattista in 2019 when surgery to her right wrist was under consideration and in 2023.
The Medical Assessor set out his findings and made an assessment. No error in his methodology has been identified. He explained that his findings were different from other examiners. He set out the path of reasoning to the assessment he made. He was required to exercise his own clinical judgement and was not obliged to agree with other medical examiners or choose between their assessments. His assessment does not disclose error merely because it was different to a range of other assessments at different points in time during Ms Debattista’s treatment.
Conclusion
There was no appeal with respect to the s 323 deduction. The appropriate assessments are 9% in respect of Ms Debattista’s left upper extremity and 11% in respect of the right. When those assessments are combined with 1% for scarring, the total WPI is 20%.
For these reasons, we have determined that the MAC issued on 8 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: | W8521/24 |
Applicant: | Dianna Debattista |
Respondent: | Ready Workforce (A Division of Chandler Macleod) 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, page and paragraph number in NSW Workers Compensation Guidelines | 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) |
| Left upper extremity | 21/12/17 | Chapter 2 p 10 | P 467 P 469 P 482 P 439 T16-03 | 10 | 1/10th | 9% |
| Right upper extremity | 21/12/17 | Chapter 2 p 10 | P 467 P 469 P 482 P 439 T16-03 | 12 | 1/10th | 11% |
| Scarring | 21/12/17 | Chapter 14, p 74 T 14.1 | 1 | 1% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
0
5
0