Sadeqi v Aspec Masonry Pty Ltd
[2021] NSWPICMP 19
•12 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sadeqi v Aspec Masonry Pty Ltd [2021] NSWPICMP 19 |
| APPELLANT: | Hussain Sadeqi |
| RESPONDENT: | Aspec Masonry Pty Ltd |
| APPEAL PANEL: | Ms Catherine McDonald Dr David Crocker Dr J Brian Stephenson |
| DATE OF DECISION: | 12 March 2021 |
CATCHWORDS: | WORKERS COMPENSATION- Worker suffered an injury to his cervical spine and left shoulder; AMS determined, based on his observations during the examination, that worker’s difficulty in self-care and activities are a result of the shoulder injury and did not include a component for the impact of the injury on activities of daily living in the assessment of the cervical spine; Held- the AMS gave reasons for his assessment; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 January 2021 Hussain Sadeqi lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr N Berry, an Approved Medical Specialist (AMS) under the legislation in force at the date of the assessment. The AMS issued a Medical Assessment Certificate (MAC) on 22 December 2020.
In the Application, Mr Sadeqi relied on the ground of appeal in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error. However his submissions also alleged that the assessment was made on the basis of incorrect criteria.
The Registrar was satisfied that, on the face of the application, at least one ground of appeal was made out – that the MAC contains. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Sadeqi was employed by Aspec Masonry Pty Limited (Aspec) as a bricklayer. He suffered an injury to his left shoulder and neck on 13 March 2019 while moving pallets of besser blocks.
The injury to his neck was originally disputed by Aspec but, at a telephone conference on 21 October 2020, the matter was remitted to the Registrar for referral to an AMS in respect of both the neck and left shoulder.
The AMS assessed Mr Sadeqi’s cervical spine in DRE Cervical Category II. He did not add a loading for the impact of that injury on the activities of daily living because he said that it was Mr Sadeqi’s left shoulder injury which impacted on his activities of daily living rather than his cervical spine. The AMS assessed Mr Sadeqi using the range of movement method and attached the work sheet which he used to calculate five per cent whole person impairment (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 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the MAC does not disclose an error.
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.
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. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, Mr Sadeqi submitted that the AMS applied incorrect criteria because he did not assess his ability to perform the activities of daily living or explain how he concluded that they related exclusively to his left shoulder. He relied on his statement where he said that his neck causes a problem with dressing and noted that Dr Lim found that his difficulties with both dressing and housework were related to all his injuries and that Dr Lim added 2% to the assessment of his cervical spine for the activities of daily living.
Mr Sadeqi said that the AMS applied “wrong” criteria because he did not assess his ability to do housework, saying that paragraph 4.24 [sic 4.34] of the Guidelines referred to both home care and recreational activities.
He argued that the AMS made a demonstrable error by failing to give reasons to explain why he considered that the restriction in Mr Sadeqi’s activities of daily living related only to his shoulder and by failing to consider the evidence which deals with that issue in the file.
In reply, Aspec submitted that the matters raised did not constitute the application of incorrect criteria or a demonstrable error.
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[1] 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.
[1] [2006] NSWCA 284.
The matter was referred to this Panel on the basis that it was arguable that the MAC contained a demonstrable error and not because it was arguable that the AMS had applied incorrect criteria. Clearly he did not apply incorrect criteria because he relied on the appropriate parts of AMA 5 and the Guidelines to undertake his assessment.
In Pitsonis v Registrar of the Workers Compensation Commission[2] Mason P said:
“The expression ‘incorrect criteria’ is undefined in the Act. In Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL referred (at [58]) to a statement in the minister’s Second Reading speech to the effect that s327(3)(c) was designed to cover circumstances where the Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the ‘criteria’ upon which assessment is to be based are to be found in any relevant guides including guides issues by WorkCover. At [60] his Honour observed that this view drew support from the requirement in s322(1) that the assessment is to be made ‘in accordance with the WorkCover Guidelines’.”
[2] [2008] NSWCA 88.
A demonstrable error is an error which is clear on the face of the MAC[3].
[3] Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39].
While he was required to consider the medical history and available information, the AMS was required to assess Mr Sadeqi as he presented on the day of the examination[4]. His statement and the other medical reports were relevant, but the AMS was required to form his own opinion having considered all of that material, taken his own history and conducted an examination.
The MAC
[4] Guidelines paragraph 1.6.
The AMS recorded Mr Sadeqi’s present symptoms:
“Mr Sadeqi told me today that he remains off work. His shoulder is painful most of the time. It is aggravated by lifting any heavy objects or trying to work with the arm above shoulder height. He also experiences occasional attacks of numbness and tingling in the left arm and hand.
With regard to his neck, he can turn it but finds that his range of movement is restricted
and if he turns frequently the pain increases.In terms of driving, he can drive between 30 and 45 minutes and then he has to stop, get out and move around. He also indicated that he has pain in the upper back on the left side. With regard to his sleep, from time to time it is disturbed by shoulder pain in
particular.”When he examined Mr Sadeqi’s cervical spine the AMS observed:
“Examination of the neck revealed that the claimant had reduced right rotation due to left sided neck pain. The other movements of the neck were all within the normal range. There was no muscle spasm and no alteration of spinal contour.”
In respect of his left upper extremity the AMS observed:
“There was tenderness over the posterior and anterior aspects of the shoulder. Mr Sadeqi was noted in the course of dressing and undressing to have difficulty moving the left arm. The range of movement is detailed in the (attached worksheet). Reflexes were intact. Sensation was normal and there was no evidence of any unilateral muscle wasting.”
The AMS diagnosed “evidence of subacromial bursitis affecting the left shoulder and a left sided soft tissue injury to the cervical spine.”
When assessing permanent impairment, the AMS said:
“Examining the claimant’s neck, he has restricted right rotation experiencing pain in the left paraspinal muscles and there is mild tenderness in the left paraspinal muscles. The other movements are normal and there is no evidence of left or right upper extremity radiculopathy. I therefore refer you to AMA5, Chapter 15, Table 15.5 on Page 392 for the DRE methods for the cervical spine and I would place the claimant in DRE Category II which is a 5% Whole Person Impairment.
In regards to the impact of this injury on the activities of daily living, it is noted that Mr Sadeqi’s difficulties in dressing, undressing and carrying out activities relate to his shoulder injury not his neck injury, and therefore using Paragraph 4.34 on Page 28 of the NSW Workers Compensation Guides for the Evaluation of Permanent Impairment, I make no additional assessment for the impact of his cervical spine injury on the impact of daily activities.”
The AMS contrasted his assessment to that of Dr MF Lai qualified for Mr Sadeqi who made a similar assessment in DRE Cervical Category II because of dysmetria but allowed 2% for the impact on activities of daily living. The AMS said that he differed because “but when observing the claimant and taking his history, it was clear that his limitations of daily living were due to his left shoulder injury not due to his neck injury.”
Medical evidence
The evidence from Mr Sadeqi’s first general practitioner, Dr Hamid, is limited to one certificate which is not a certificate of capacity and an MRI scan of the left shoulder dated 1 May 2019 for which Dr Hamid had referred him.
The records from Mr Sadeqi’s current general practitioner commence in May 2019 and the new patient questionnaire recorded that Mr Sadeqi had been referred by his solicitor.
The records contain notes from physiotherapists who treated him and Dr G Soo who saw him on 13 June 2019. Dr Soo’s notes deal only with the left shoulder injury, noting some radiation of pain to the neck. Dr Soo again did not mention Mr Sadeqi’s neck in a report of the same date. He noted that an MRI scan of the left shoulder showed subacromial bursitis but an intact rotator cuff and long head of biceps.
Dr Soo did not refer to an MRI scan of Mr Sadeqi’s cervical spine dated 21 May 2019. The scan was reported as showing no significant intervertebral disc disease or spinal canal or foraminal stenosis. Despite the use of “significant” in the conclusion, the findings revealed that all intervertebral discus were normal.
On 17 June 2019, Mr KW Ng, physiotherapist, noted that Mr Sadeqi was not doing housework because of pain but that he was mostly independent in self-care, using his right hand and shoulder. On 5 July 2019, the physiotherapist noted that Mr Sadeqi had started doing housework and that he was able to vacuum and tidy up.
On 11 July 2019 Mr Sadeqi saw Dr Soo again who noted that Mr Sadeqi’s shoulder was feeling better with increased movement, though he still had pain on lifting. Again, Dr Soo did not record any complaints with respect to Mr Sadeqi’s cervical spine. At about the same time, the general practitioners he saw did note neck pain.
An Allied Health Recovery Request completed by Mr A Zhou, physiotherapist on 24 September 2020 noted Mr Sadeqi’s capacity:
“Able to bend/lift/move home groceries up to 3kg
Able to perform nil house chores
(cooking, washing, cleaning dust/mop/vacuum) -
family assisting
Able to sit/drive prolonged up to 5min
Able to stand/walk prolonged up to 20min
**functional restrictions***Able to drive for a limited distance up to 10min, taking occasional breaks.”
And
“Self care: showering and toilet is fine with R shoulder, trouble with the L
domestic: light shopping and cleaning with R shoulder, too much pain on left shoulder.”“driving: 30 mins
sitting: 30mins limited by neck and shoulder pain walking and standing: 30 mins limited by shoulder pain
public transport: nil trouble, occasional use
leisure: nil, walking in the morning 30 mins”
Mr Sadeqi’s solicitors referred him to Dr MF Lai who reported on 28 January 2020, 11 months before the examination by the AMS. Dr Lai said that Mr Sadeqi was unable to do any heavy lifting with his left arm and required help from his flat mates. Dr Lai noted complaints in respect of Mr Sadeqi’s neck, left shoulder and upper back, though there is no claim in respect of his thoracic spine. The only radiology Dr Lai saw was the left shoulder investigations of 30 April and 1 May 2019 and he did not refer to the MRI of the cervical spine.
Dr Lai observed a more restricted range of movement than that recorded by the AMS. He diagnosed bursitis and stiffness of the left shoulder and a musculoskeletal injury of the cervical spine. His prognosis for Mr Sadeqi’s return to work was pessimistic.
Dr Lai assessed Mr Sadeqi in DRE Cervical Category II and added 2% for the activities of daily living because his domestic and recreational activities were restricted. Dr Lai did not explain how. Dr Lai’s assessment of impairment of Mr Sadeqi’s left shoulder is substantially higher than that of the AMS but no appeal is brought in respect of the left shoulder assessment.
Dr R Breit saw Mr Sadeqi and reported on 24 June 2020. He did not observe any abnormality in Mr Sadeqi’s cervical spine and considered that there was nothing to indicate a cervical spinal injury and that discomfort was likely to arise from the trapezius muscle. He considered that treatment had been inadequate.
Consideration
The Guidelines provide in paragraph 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.”
That paragraph makes clear that the AMS was not bound to include a component for the impact of the injury on the activities of daily living. It was open to him to assess 0%.
The assessment is consistent with the history Mr Sadeqi gave the AMS about the movement of his neck – he can turn but his range of movement is restricted and frequent turning causes increased pain.
The AMS observed on examination that Mr Sadeqi had reduced right rotation of his cervical spine due to left sided pain. That was the only abnormality he observed and all of the other aspects of examination were normal. Assessment in DRE Cervical Category II was appropriate because of the asymmetry of movement observed.
The AMS observed Mr Sadeqi to have a significantly greater range of movement than was observed by Dr Lai, whose report was prepared nearly a year before. Some improvement would be anticipated in that time.
Mr Sadeqi gave the AMS a more detailed history of the tasks he cannot perform because of his left shoulder. The AMS observed Mr Sadeqi throughout all aspects of the examination and noted that it was his left shoulder injury which impacted on his ability to dress and undress, rather than his cervical spine. The AMS saw that Mr Sadeqi had difficulty moving his left arm. Contrary to Mr Sadeqi’s submissions on the appeal, the AMS gave clear reasons for his finding.
The observations of the AMS were consistent with the most recent Allied Health Recovery Request - that it was his left shoulder which limited Mr Sadeqi’s ability to perform self care.
They are also consistent with the lack of abnormal findings on the MRI scan of the cervical spine which the AMS was not shown and the lack of treatment other than physiotherapy.
The AMS was not obliged to rely on the statement prepared for Mr Sadeqi in support of the application in preference to his own observations. The statement does not set out which injuries cause difficulties and he attributes some of his impairment to an injury to his upper back which is irrelevant to the assessment.
There are cases in which a worker suffers an impact on daily activities as a result of an injury to his spine and from an injury to a different area of his or her body. If the spinal injury was a cause of that impact, the AMS would be expected to include a component in the assessment of the spinal injury for that impact.
In this case the AMS explained why he made the assessment he did, the assessment is consistent with his findings and his failure to include a loading for the impact of the injury on the activities of daily living is not an error.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 December 2020 should be confirmed.
Catherine McDonald
Member
Dr David Crocker
Medical Assessor
Dr J Brian Stephenson
Medical Assessor
12 March 2021
0
2
0