Rowley v ADSSI Limited
[2021] NSWPICMP 146
•10 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Rowley v ADSSI Limited [2021] NSWPICMP 146 |
| APPELLANT: | Patricia Rowley |
| RESPONDENT: | ADSSI Limited |
| APPEAL PANEL: | Member John Wynyard Dr James Bodel Dr Philippa Harvey-Sutton |
| DATE OF DECISION: | 10 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against assessment of 9% WPI for cervical spine (5%) and right upper extremity (4%); appeal confined to the back; whether failure by Medical Assessor (MA) to award any WPI for the worker’s restrictions in activities of daily living an error; whether a cervical DRE III rating should have been assessed; Held- appellant failed to address the criteria set out at 4.27 of the Guides; unable to satisfy radiculopathy test therein; DRE II rating confirmed; MA erred in diagnosis of ulnar nerve injury as being responsible for worker’s restriction in the activities of daily living; failed to adequately give reasons; differential diagnosis of C7/C8 involvement from the cervical injury as demonstrated on imaging (albeit of some vintage) preferred; discussion of discretionary nature of 4.33 – 4.35 of the Guides; additional 2% added to cervical spine rating of 5%; MAC revoked and 11% WPI substituted. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 March 2021 Patricia Rowley, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin ‘Sid’ O’Toole, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 February 2021.
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 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 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.
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 reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 29 September 2020 Consent Orders were made following which on 3 December 2020 the delegate of the Registrar referred this matter to the MA for an assessment of WPI caused by injury to the cervical spine, thoracic spine, right upper extremity (shoulder) on 7 May 2015.
The appellant was employed as a support worker working for disabled persons. On 7 May 2015 whilst picking up a box the appellant felt a popping sensation in her mid back. As the day progressed she experienced a “burning” sensation. She sought medical attention and was referred for investigations and had further consultation with Dr Paul Carney, Orthopaedic Surgeon and Marc Russo, Pain Specialist. She underwent a course of medication for pain and platelet rich plasma (PRP) injections and radiofrequency ablations.
There was some confusion over the focus of her pain and further investigations were carried out. She was receiving physiotherapy, transcutaneous electrical nerve stimulation (TENS) and acupuncture on her shoulder. She developed adhesive capsulitis and was referred to
Dr Marc Coughlan, Neurosurgeon who sought approval for C6/7 surgery, which was not approved.Ms Rowley moved to Townsville, Queensland in October 2016 and underwent treatment there at the hands of her GP and physiotherapy. She also came under the care of Dr Aman Ahuja, Pain Physician.
The AMS certified 9% WPI consisting of 5% for injury to the cervical spine and 4% for injury to the right upper extremity (shoulder).
The AMS found nil WPI in respect of the thoracic spine.
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 2006.
The appellant requested to be re-examined by a member of the Appeal Panel. However, although we have found a demonstrable error, it was on the basis of the finding of the MA, and no re-examination was necessary.
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.
Medical Assessment Certificate
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
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.
There were two grounds of appeal. Ms Rowley challenged firstly the finding that she did not warrant a DRE III cervical assessment on the basis that she was suffering from radiculopathy. Secondly Ms Rowley also contested the finding by the MA that her cervical condition did not produce any restrictions in her activities of daily living.
The MAC
The MA took a consistent history of the injury and her subsequent treatment. He noted her cervical complaints under ‘Present Symptoms’:[1]
“… Ms Rowley stated that she still has constant pain, a ‘burning’ sensation (a nerve burn) affecting the entire neck, worse on the right hand side. She stated that the discomfort radiated to into the shoulder blade, across to the lateral aspect of the shoulder, then down to the elbow and into the fourth and fifth digits. She stated that the discomfort was aggravated by driving, repeated rotation of the head, and lifting any significant weight or lifting at reach. …. She described decreased range of motion in the cervical spine affecting rotation to the right rotation to the left. She described burning a 'pins and needles' sensation, affecting the entire arm, ‘like a string’ that extends from her neck into the shoulder blade, across to the lateral aspect of the shoulder, then down to the elbow and into the fourth and fifth fingers.”
[1] Appeal papers pages 10-11.
The MA described Ms Rowley’s complaints with regard to the right shoulder as being:[2]
“…localised to the top of the shoulder between her shoulder blade and the spine. The neck and the shoulder are ‘all one’…”
[2] Appeal papers page 25.
The MA repeated that in relation to the right upper limb, Ms Rowley described a ‘pins and needles’ and ‘tingling’ sensation.
On examination, the MA noted limitation of the range of motion of the cervical spine to the left. On examining the right shoulder he said:[3]
“… Note that neurovascular examination of the right upper limb elicited altered sensation, affecting ulnar nerve distribution distally from the elbow. Tinel’s test is positive at this site and therefore it is reasonable to determine that the origin of these symptoms is the elbow.”
[3] Appeal papers page 27.
In considering Ms Rowley’s activities of daily living, the MA recorded:
“With respect to her activities of daily living Ms Rowley reported the following:
Self Care: Able to perform activities of self care without assistance, but with simple
accommodation. Specifically, this affects brushing / washing hair, she keeps her hair short to make it easier to care for.Household duties: No reported impairment of ability to perform activities of household duties.
She stated that she can do it ‘but is medded up’ namely taking medication to allow her to do this.
Hobbies: Unable to perform some outdoor duties or recreational activities, including hobbies such as kayaking and swimming. She stated that this aggravates her shoulder, so she avoids this activity to prevent pain in her shoulder.”
The MA did not formally give any diagnosis. At paragraph [7] the “summary of injuries and diagnoses” was simply given as:
· Cervical spine
· Thoracic spine
· Right upper extremity (shoulder)
The MA in giving his reasons for the assessment said:[4]
“There is no impairment arising from sensory loss. Note that the sensation loss in the right arm arises from the ulnar nerve at the elbow and is not related.”
[4] Appeal papers page 28.
The MA explained his calculation by saying that a Cervical DRE Category II was warranted on his clinical findings. He noted that there was “no requirement of additional impairments” pursuant to Table 4.2 of the Guides.[5] He also said:
“Note that there are no additions for Activities of Daily Living (ADLs) as it is the shoulder that prevents her from performing her hobbies, not the neck.”
[5] Appeal papers page 29.
When considering the opinions of the practitioners, the MA noted the report of Dr Peter Steadman, Consultant Orthopaedic Surgeon of 8 May 2019. The MA said that Dr Steadman had certified a DRE cervical category “II” at 12% WPI. He said:
“It assumed [sic] that the classification of DRE II categorization arose from a
determination of radiculopathy. As discussed above, the symptoms in the ulnar nerve originate, from the available evidence, from a local irritation at the elbow, and not the cervical spine, hence my classification differs from his.”
SUBMISSIONS
DRE III
Ms Rowley submitted firstly that the descriptions merited a classification of her injury as DRE cervical spine category III as provided by AMA 5, because she suffered from radiculopathy.
In support of this submission, Ms Rowley set out the evidence upon which she relied. We shall refer to those reports in our discussion as to her ADLs below, but they do not avail the appellant in this ground. This submission may be dealt with shortly.
Discussion
Table 15.6 of AMA5 provides the criteria for the assessment of the impairment of the cervical spine.[6] However, Chapter 1.1 of the Guides provides that “where there is any deviation [from AMA5], the difference as defined in the Guidelines and the procedures detailed in each section are to prevail.”[7]
[6] AMA 5 page 392.
[7] Guides page 3.
The criteria for a DRE III rating regarding the cervical spine are set out in Table 15.6 of AMA 5, and they include:
“Significant signs of radiculopathy, such as pain and/or sensory loss in a dermatomal distribution…”
The preamble to Chapter 4 of the Guides states that Chapter 15 of AMA 5 applies to the assessment of permanent impairment of the spine, “subject to the modifications set out below.”[8]
[8] Ibid page 24.
One of the modifications relates to the definition of the word “radiculopathy.” Radiculopathy is defined in Chapter 4.27 of the Guides as follows:[9]
“4.27 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
•• loss or asymmetry of reflexes
•• muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
•• reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
•• positive nerve root tension (AMA5 Box 15-1, p 382)
•• muscle wasting-atrophy (AMA5 Box 15-1, p 382)•• findings on an imaging study consistent with the clinical signs (AMA5, p 382).”[9] Guides page 27.
The appellant did not address the terms of this guideline. The thrust of Ms Rowley’s submissions was to emphasise that there was no causative ulnar or medial nerve entrapment, but rather there was pathology in the cervical spine which involved the right C7 or C8 nerve root, and thus caused radiculopathy.
It is evident that Ms Rowley does not have the requisite criteria for radiculopathy to be established as required by Chapter 4.27. Whilst the imaging studies might have been capable of supplying one of the minor criteria, there was no loss or asymmetry of reflexes (only of motion), there was no muscle weakness anatomically localised to a relevant spinal nerve root distribution, and the MA did not find reproducible impairment of sensation that was similarly localised.
Accordingly, this ground of appeal is rejected.
Activities of daily living
Submissions
The appellant submitted that it was common ground that Ms Rowley’s activities of daily living were restricted by the symptoms in her right arm. It was asserted that the MA had fallen into error in ascribing those symptoms to the involvement of an ulnar nerve condition.
We were referred to the imaging evidence, and that of Ms Rowley’s treating and expert medical practitioners. The findings as to ADLs, it was argued, did not exclude a conclusion that the cervical pathology also contributed to those restrictions. The medical evidence, it was submitted, did not provide a sufficient basis for the MA’s diagnosis of ulnar nerve neuropathy in the face of that evidence.
The respondent referred to the relevant guidelines regarding the allocation of WPI for the restrictions in ADLs, and sought to support the findings by the MA regarding the ulna nerve deficit. It referred to Dr Steadman’s suggestion that Ms Rowley’s ulnar nerve be treated by surgery and/or injection.
DISCUSSION
The basis for the MA’s diagnosis was said by him to be “from the available evidence.” He referred to his clinical examination, which elicited altered sensation affecting the ulnar nerve distribution distally from the elbow, and a positive Tinel’s test. He noted that Dr Steadman was of the view that the restriction in Ms Rowley’s activities of daily living had been caused by the pathology in the cervical spine, but preferred his own findings on examination. He did not however engage with Dr Steadman’s discussion about the ulnar nerve condition, which we now turn to.
In his first report of 14 April 2019 Dr Steadman noted:[10]
“The ulnar nerve, despite normal nerve conduction studies, appears to be accounting for the little finger symptoms.”
[10] Appeal papers page 56.
Whilst the MA noted Dr Steadman’s view, it is instructive to reproduce the whole of
Dr Steadman’s statement when asked for recommendations about future treatment[11]:“8. Your recommendations for future treatment including an estimate of the costs of such treatment.
Additional treatment might include an MRI of her right shoulder and cervical spine along with a CT guided injection of the right C7 nerve root. ….
Operative intervention of the ulnar nerve at the elbow may help and depending on the response to the injection surgical intervention may help. …
…..”
[11] Appeal papers page 60.
It can be seen that Dr Steadman thought that the right C7 nerve root needed treatment, as well as the ulnar nerve at the elbow.
Dr Steadman also said[12]:
“SUMMARY
Patricia Rowley has had an injury to her neck and affecting her right arm with radiculopathy….”
[12] Appeal papers page 58.
Dr Steadman differentiated between the effect of the ulnar nerve condition and the radiculopathy affecting Ms Rowley’s right arm as a result of the cervical injury. In his report of 14 April 2019 he said:[13]
“Her current symptoms are that she suffers from pain in the mid-part of her neck and the mid-part of her back in between the shoulder blades and she has pain around the right shoulder that radiates down to both the little finger and the middle finger. It becomes apparent from the documentation that she was offered a spinal fusion for the pain going to the middle finger consistent with C7 radicular compression. The ulnar nerve, despite normal nerve conduction studies, appears to be accounting for the little finger symptoms.”
[13] Appeal papers page 56.
The same symptom complex was described to the MA, including the symptoms in the fourth and fifth digits. The MA did not discuss Dr Steadman’s finding that the ulnar nerve involvement extended only to the little finger, and that the other symptoms had been caused by C7 radiculopathy.
Other evidence before the MA also supported the involvement of nerve root compromise arising from the pathology demonstrated in the cervical spine:
“l The MRI scan of 13 May 2015 showed pathology that did not exclude the possibility that the restrictions in the activities of daily living were being caused by the discal pathology there revealed.[14] The MA did not consider the investigations that were before him, beyond mentioning unidentified MRI scans when he took the general history.
[14] Appeal papers page 180.
· Associate Professor Heard, on 28 August 2015, noted that relevant nerve conduction studies were normal and symmetrical.
· In his report of 29 October 2015 Dr Marc Coughlan, Neurosurgeon, said in reference to the MRI, presumably of 15 May 2015:[15]
[15] Appeal papers page 733.
‘… In the cervical spine at C6/7 she does have a small right paracentral disc osteophyte complex abutting and slightly compressing the exiting C7 nerve root….’
· The nerve conduction studies conducted by Associate Professor Sturm on 25 November 2015 noted that there was no electrophysiological evidence of nerve entrapment and that the medium and ulnar nerve studies were within normal limits.[16]
· The pain specialist, Dr Marc Russo, said on 20 January 2016:[17]
‘What she describes is pain radiating down the right arm in a C8 bar nerve root distribution into the fourth and fifth fingers as a sharp burning type pain.’
· Dr Preston, Rheumatologist, on 10 February 2016 described “symptoms [which] suggest a radiculopathy in the right arm,” and advised an injection into the right C8 nerve root.[18]
· Dr Ed Bateman, Orthopaedic Surgeon, in his report of 5 July 2016 opined that the root cause of Ms Rowley’s problem was probably from the neck.[19]
· The General Practitioner Dr Eksteen showed multiple entries referring to neck and right shoulder symptoms including neuropathy in the right hand.”
[16] Appeal papers page 349.
[17] Appeal papers page 710.
[18] Appeal papers page 378.
[19] Appeal papers page 721.
We note that the medical evidence relied on by the appellant is somewhat out of date, the latest report being that of Dr Steadman dated 8 May 2019. Nonetheless, the clinical picture has remained constant, and the medical evidence is persuasive that at the least,
Ms Rowley’s restrictions cannot solely be ascribed to the ulnar nerve involvement at the elbow.We think it more probable that the radicular symptoms restricting Ms Rowley are coming from the cervical pathology, subject perhaps to those in the fifth finger.
We note that the MA has neither discussed the investigations that were referred to him, nor engaged with Dr Steadman’s opinion regarding the ulnar nerve. The failure to explain the involvement of the C7 and/or C8 nerve root we find to be a demonstrable error. We do not discount that Ms Rowley may also suffer from an ulnar nerve condition involving the fifth finger of the right hand. As indicated, we think it more likely however that the pathology in the cervical spine is the cause of her restrictions.
The Guides provide from Chapter 4.34 - 4.35:
“4.33 Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.
4.34 The following diagram should be used as a guide to determine whether 0%, 1%, 2% or 3% WPI should be added to the bottom of the appropriate impairment range. This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury. (As written).
YARD/GARDEN/SPORT/RECREATION 1%
HOME CARE 2%
SELF CARE 3%
[The diagram is omitted, as its effect is described below]4.35 The diagram is to be interpreted as follows:
Increase base impairment by:
•• 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
•• 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
•• 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
It can be seen that the criteria set out in chapter 4.35 have to be considered in the context of the overall discretion given to an MA by virtue of the expression “as a guide” in chapter 5.34. It follows that the examples in chapter 5.35 are not intended to be read as strict criteria, but are simply examples to assist the MA.
We note also that the definition regarding each class does not require there to be a total inability by an injured worker to perform the task identified. If a worker is restricted with the usual household duties such as cooking, vacuuming and making beds or tasks of equal magnitude such as shopping, climbing stairs or walking reasonable distances, then a further 2% can be assessed.
The description by the MA that Ms Rowley was able to do her household duties but “is medded up” indicates that she requires medication in order to perform those duties. The speed and efficiency with which Ms Rowley was able to do her household duties was not addressed, but the evidence satisfies us that Ms Rowley’s abilities to carry out household duties has been restricted by the injury.
Therefore we award 2% pursuant to the guideline, to be added to the 5% WPI for the cervical spine injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 February 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr O’Toole 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) |
| Cervical Spine | 07/05/2015 | Chapter 4 Pages 24-30 | Chapter 15 Table 15-5 (p 392) | 7% | Nil | 7% |
| Thoracic Spine | 07/05/2015 | Chapter 4 Pages 24-30 | Chapter 15 Table 15-4 | 0% | Nil | 0% |
| Right Upper Extremity (Shoulder) | 07/05/2015 | Chapter 2 Pages 10-23 | Chapter 16 Table 16-40, 16-43 and 16-46 | 4% | Nil | 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
John Wynyard
Member
Dr James Bodel
Medical Assessor
Dr Philippa Harvey-Sutton
Medical Assessor
9 August 2021
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