Reupena v Momentum Consulting Group Pty Ltd

[2021] NSWPICMP 157

DETERMINATION OF APPEAL PANEL
CITATION:	Reupena v Momentum Consulting Group Pty Ltd [2021] NSWPICMP 157
APPELLANT:	Utupo Reupena
RESPONDENT:	Momentum Consulting Group Pty Ltd
APPEAL PANEL:	Member John Wynyard Dr Drew Dixon Dr Margaret Gibson
DATE OF DECISION:	31 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Appeal against 10% WPI assessment for the right upper extremity; whether grip strength should have been assessed; whether scarring should have been assessed; Held - Chapter 2.13 of the Guides prohibits grip strength from being assessed; appellant unable to avoid its application; scarring had not been claimed and was therefore not part of the dispute; Skates v Hill Industries Ltd considered and applied; MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 21 May 2021, Utupo Reupena, 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 (MA), who issued a Medical Assessment Certificate (MAC) on 7 May 2021.

2. 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):

   ·        the MAC contains a demonstrable error.

3. 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.

4. The WorkCover Medical Assessment Guidelines 2006 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 2006.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

1. On 23 February 2021 the delegate of the Registrar referred this matter to a MA for assessment of WPI caused to the right upper extremity on 18 May 2018.

2. Mr Reupena was employed as a truck driver and suffered injury on 18 May 2018 when he fell and injured his right shoulder complex. Investigations revealed an extensive injury to the right rotator cuff which was managed by arthroscopic surgery on 28 June 2018 with Dr David Duckworth. Acute massive right supraspinatus and infraspinatus tears were identified, with subluxed biceps.

3. Mr Reupena has been treated by physiotherapy and hydrotherapy. He is under the care of his GP and physiotherapist in Victoria, where he now lives.

4. The MA awarded 10% WPI.

PRELIMINARY REVIEW

1. 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 2006.

2. The appellant requested that she be re-examined by a MA who was a member of the Appeal Panel, however for the reasons given below no appellable error has been shown.

EVIDENCE

Documentary evidence

1. 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. 

Medical Assessment Certificate

1. 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

1. The appellant made written submissions which have been considered by the Appeal Panel. The President’s Delegate advised that the respondent had not lodged a Notice of Opposition to Appeal a Decision of Medical Assessor.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The appellant alleged error in two respects.  It was contended that the MA ought to have included an assessment for loss of grip strength, and that he ought to have assessed
   Mr Reupena’s scarring.

The MAC

1. The MA took a consistent history, noting the arthroscopic surgery of June 2018.  He assessed the range of shoulder movements as follows[1]:

   [1] Appeal papers page 16.

MOVEMENT	RIGHT	LEFT
Flexion	100°	180°
Extension	20°	50°
Abduction	90°	180°
Adduction	20°	50°
Internal rotation	40°	80°
External rotation	30°	80°

1. The MA found a completely normal range of movement in the elbows, wrists, hands and all digits (as well as the left shoulder).

2. Diagnosis by the MA was[2]:

   “Summary of injuries and diagnoses:

   Mr Reupena sustained a traumatic injury to his right shoulder complex in mid-May 2018.

   This resulted in extensive tears of the s
   upraspinatus and the infraspinatus. These have
   

   [2] Appeal papers page 17.

   been managed by surgical repair although even at this assessment, he continues to have gross dysfunction of the right shoulder complex.”

3. In explaining his calculations, the MA produced the following chart:

   “The whole person impairment depends on the reduced range of movement of the right
   shoulder complex.

AMA 5 REFS	MOVEMENT	RIGHT	% RIGHT UEI	LEFT	% LEFT UEI
P 476	Flexion	100°	5	180°	0
F16-40	Extension	20°	2	50°	0
P 477	Abduction	90°	4	180°	0
F 16-43	Adduction	20°	1	50°	0
P 479	Internal rotation	40°	3	80°	0
F 16-46	External rotation	30°	1	80°	0
Subtotals	16	0

From Page 439, Table 16-03 this converts to 10% WPI.”

1. The MA considered the report of Dr James Rowe of 18 September 2019, noting that he had given a higher WPI as it included further a 20% WPI for grip strength. The MA said[3]:

   “With the greatest of respect, I am not persuaded that this is appropriate. The SIRA Guidelines Page 11, Paragraph 2.13 advise the grip strength should only be used in rare cases with specific indication for this which does not exist in Mr Reupena’s case.

   c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:

   Specialist Occupational Physician, Dr James Rowe in his report of 18/09/19 has a higher whole person impairment due to a greater restriction of movement. He also includes 20% WPI for grip strength. With the greatest of respect, I am not persuaded that this is appropriate. The SIRA Guidelines Page 11, Paragraph 2.13 advise the grip strength should only be used in rare cases with specific indication for this which does not exist in Mr Reupena’s case.”

Appellant’s submissions

[3] Appeal papers page 18.

Grip strength

1. It was submitted that the MA fell into error when he said he was not persuaded that he should use grip strength evaluation. The appellant referred to the opinion of Dr Rowe, and submitted that Dr Rowe was correct.

2. We were then referred to various portions of AMA5 which, it was argued, supported
   Mr Reupena’s contention. 

3. The first point was that a consideration of some imaging taken in May and June 2018 clearly identified tendon tears. We were referred to page 507 of AMA5.

4. The second point concerned a submission that the terms of s 16.8a of AMA 5, at page 508, did not apply.  This was said to be because the decreased motion in the left shoulder was “separate” and did not contravene those provisions.   

5. The third point was concerned with Mr Reupena’s consistency, which was said to be relevant to the application of s 16.8b, at page 510 of AMA 5.

6. Mr Reupena submitted in his fourth point that the provisions of s 16.8 of AMA 5, at page 508, which permits the combining of impairment due to the loss of strength with other impairments, applied.  This was said to be because the loss of grip strength was caused by the failed surgical procedure performed by Dr David Duckworth on 21 June 2018.

7. Finally, it was submitted that the provisions of Chapter 2.13 of the Guides had no application, as Mr Reupena’s case was a “rare” case where the method of strength valuation should be utilised, notwithstanding those provisions.

Scarring

1. The MA, it was alleged, should have undertaken an assessment of the scarring caused by the surgical treatment the appellant received.

DISCUSSION

Grip strength

1. The task of an MA was described by James J in Jones v The Registrar WCC[4] in the following terms:

   “49 ...... The [MA] was an approved medical specialist having the qualifications stated in the Medical Assessment Certificate. Under the [Guides] he was required to assess the degree of permanent impairment, by himself making a clinical assessment and by applying the diagnostic criteria.... He was not in a position of having to decide which of two conflicting bodies of evidence he should accept....”

   [4] [2010] NSWSC 481.

2. It can be seen that an MA is not required to prefer any medical opinion, but to use his own expertise to decide the dispute. However, as we noted in our reference to Vegan, there is an obligation on an MA to give reasons, just as there is on a Medical Appeal Panel.[5]

   [5] Jones at [34].

3. The MA gave explicit and precise reasons for not accepting the opinion of Dr Rowe, referring to Chapter 2.13 of the Guides.  This provides:

   “2.13 Strength evaluation, as a method of upper extremity impairment assessment, should only be used in rare cases and its use justified when loss of strength represents an impairing factor not adequately considered by more objective rating methods. If chosen as a method, the caveats detailed on AMA5 p 508 under the heading ‘16.8a Principles’ need to be observed – ie decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities and absence of parts (eg thumb amputation).”

4. Chapter 1.1 of the Guides provides that where there is any deviation from AMA5 in the Guides:

   “…the difference is defined in the [Guides] and the procedures detailed in each section are to prevail.”

5. We have referred to the assessment made by the MA, and that it was based on the decreased range of motion in Mr Reupena’s shoulder. Accordingly, the provisions of Chapter 2.13 operate to exclude an assessment based on grip strength. Because there was a decreased range of motion, grip strength could not be used as a method of evaluation, even if the appellant succeeded in his contention that his was a “rare case”.

6. The reasons advanced by the appellant as to why his case should be considered a rare case related to the alleged significance of his injury and subsequent treatment. Mr Reupena included the reduced range of motion in the shoulder in this submission, thus conceding that one of the elements disqualifying the use of grip strength methodology in Chapter 2.13, was present.  We found that to be a somewhat circuitous and unhelpful submission.

7. We also were not assisted by the appellant’s references to the various parts of AMA5.  Chapter 2.13 of the Guides, by virtue of the limiting provision of Chapter 1.1, excludes the provisions of AMA5 where they conflict with those of the Guides – not that any of the provisions relied on did in fact conflict.  Chapter 2.13 is quite clear in its meaning, and whilst it referred to AMA5, it also repeated the prohibition contained therein on using grip strength evaluation where a decreased range of motion was found.

8. In any event, page 508 of AMA 5, in considering rare cases, provides:

   “…If the examiner judges that loss of strength should be rated separately in an extremity that presents other impairments, the impairment due to loss of strength could be combined with the other impairments, only if based on unrelated etiologic or pathomechanical causes. Otherwise the impairment ratings based on objective anatomic findings take precedence.”
   (Emphasis as written).

9. As we have understood the submission, it was alleged that Chapter 2.13 of the Guides could not be applied in the appellant’s case because the arthroscopic surgery on 21 June 2018 constituted an “unrelated etiological or pathomechanical cause.”  

10. The appellant did not expand on this submission, but we note that the aetiology of his impairment is clearly the treatment that he has undergone for his underlying condition, which includes the surgery. Therefore, there is such a causal relationship.  Pathomechanics relates to changes in the normal biomechanical function of an extremity as a result of trauma or disease. In this case the only cause for Mr Reupena’s condition was his injury, and accordingly it cannot be said that the pathomechical causes are unrelated.

11. The appellant relied on the opinion of his medico-legal expert Dr James Rowe, Specialist Occupational Physician, dated 18 September 2019[6]. There are some comments that need to be made about Dr Rowe’s report.

    [6] Appeal papers page 39.

12. Firstly, he has erred in his calculations.  He has not converted the upper extremity impairment to a whole person impairment in accordance with Table 16.3 of AMA 5[7]. That table provides that a 20% upper extremity impairment equates to 12% WPI.

    [7] AMA 5 page 439.

1. Secondly, the submission that Mr Reupena’s was a rare case appears to have been based on the finding by Dr Rowe, who carried out tests as to grip strength as part of his examination. Bearing in mind the injunctions in both AMA5 and the Guides against using grip strength, it would have been reasonable to expect some indication from Dr Rowe as to why Mr Reupena’s case was of such a rare variety that such a measurement was justified. None was given.

2. Thirdly, in finding 20% WPI in respect of grip strength Dr Rowe purported to quote from chapter 3, page 65, Table 34 of AMA 5[8].  A perusal of page 65 of AMA5 shows no Table, and that page 65 is the first page of Chapter 4, which is concerned with a “cardiovascular system: systemic and pulmonary arteries.”

   [8] At page 6 of his report.

3. Accordingly, this ground fails.  The MA explained clearly why he disagreed with Dr Rowe, and no error has been established regarding those reasons.

Scarring

1. The appellant also alleged that an assessment of the scarring caused by the surgery to both shoulders on 21 June 2018 should have been made. This has never been sought. The Application to Resolve a Dispute (the ARD) form simply sought an assessment of “permanent impairment/pain and suffering” caused to “the right upper extremity”.[9]  The matter was referred as we have indicated, using the same description of the “body part/s referred”, that is to say, “right upper extremity”.[10]

   [9] ARD form page 7.

   [10] In the appeal papers the referral follows the MAC.  The pages were not all paginated.

2. The content of the referral to an MA has been recently considered by the Court of Appeal in Skates v Hills Industries Ltd.[11] Although McCallum JA dissented on the factual situation, Basten JA, Leeming JA and her Honour all upheld the primacy of the referral.[12] The Court however focussed on the actual dispute that had engendered the need for a determination by an MA. The emphasis was illustrated by McCallum JA at [83], who said:

“… I do not mean to suggest that an approved medical specialist is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved.”

[11] [2021] NSWCA 142.

[12] Basten JA at [35], Leeming JA at [49].

1. In Skates the referral was intended to include the wrist, as the employer agreed that it was to be assessed. However, the referral omitted the wrist, and the Appeal Panel found that it was powerless to remedy the oversight. In the Court below, Adamson J said at [75] that where the parties agreed that the referral was incomplete, the Registrar (or President under the current scheme) should be requested to send a revised and correct referral to the MA, or the Appeal Panel, as the case may be. Under such circumstances an Appeal Panel should revert the referral to the Registrar in order that it reflected the parties’ agreement.[13]

   [13] Skates v Hills Industries Ltd [2020] NSWSC 837 at [73].

1. Her Honour’s decision was upheld in the Court of Appeal.

1. In the present case the dispute was defined by the claim made in the ARD form.  The injury   was described as follows:

   “The claimant was delivering a water tank and he was pushing whilst someone else was pulling the tank. His left leg became caught underneath the trolley causing him to fall and suffer injury to his right shoulder.”

2. The claim for lump sum compensation stated the date of injury and, under “systems claimed,” stated “Right upper extremity”.

3. No assessment was obtained by the appellant (and therefore none by the respondent) as to any degree of WPI that might have been caused by the scarring. The scarring was noted.
   Dr Rowe in his report of 18 September 2019 describing it at page 3 of his report as follows:

   “He had healed scars about both shoulders; the right one was 6cms in length and there were two points of arthroscopic entry”.

4. In his report of 15 January 2020 for the insurer Dr Quain said:

   “…in the left shoulder there is a 7 cms oblique scar which has moderate keloid but he has satisfactory range of movement ……

   .. he has two healed arthroscopic scars and a 5 cm deltoid splitting scar which has healed. There is no tenderness to palpation.”

5. In his findings on examination, the MA stated[14]:

   “There were surgical scars to both shoulders which would be consistent with the different surgical approaches which have been conducted. The scars had healed well.”

   [14] MAC page 3 at [5].

6. The evaluation of WPI caused by injury to the right upper extremity is governed by the terms of Chapter 2 of the Guides, which is entitled “Upper Extremity.” The evaluation of scarring is assessed pursuant to Chapter 14, which is entitled “The Skin.”

7. Applying the dicta to which we have referred in Skates, the dispute identified in the Application to Resolve a Dispute is the claim for lump sum compensation caused by injury to the right upper extremity. That claim was the subject of the reports from the medico-legal experts retained by each side, and that claim was the dispute referred to the MA. It follows that the dispute related to the degree of impairment caused to Mr Reupena’s right upper extremity, as defined by the criteria set out in Chapter 2 of the Guides. No claim was ever made for scarring.

8. The appeal as to this ground is accordingly dismissed.

1. For these reasons, the Appeal Panel has determined that the MAC issued on 7 May 2021 should be confirmed.