Santos v Worldmark Pty Ltd

Case •

[2022] NSWPICMP 30

•

25 February 2022
DETERMINATION OF APPEAL PANEL
CITATION: Santos v Worldmark Pty Ltd [2022] NSWPICMP 30
APPELLANT: Benjamin Santos
RESPONDENT: Worldmark Pty Ltd
APPEAL PANEL: Member Marshal Douglas
Dr Margaret Gibson
Dr Richard Crane
DATE OF DECISION: 25 February 2022
CATCHWORDS: 

WORKERS COMPENSATION- Appellant worker injured his right shoulder and neck and subsequently suffered a consequential condition in his left shoulder; appellant claimed to have a permanent impairment from those injuries and consequential condition; matter referred to Medical Assessor (MA) to assess; appellant contended that MA’s assessment of permanent impairment of cervical spine was not done in accordance with correct criteria and was not based on all of the MA’s findings from examination and on all relevant documentary evidence with which MA had been briefed; Held- Appeal Panel found that MA had made assessment in accordance with correct criteria and all of the evidence supported the assessment the MA made. 

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 10 December 2021 Benjamin Santos (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the application to appeal). The medical dispute was assessed by Dr Neil Berry, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 1 December 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 assessment was made on the basis of incorrect criteria, and

    ·        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, 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

  1. The appellant was employed by Worldmart Pty Ltd (the respondent) between 2008 and 14 November 2018. He had responsibility for daily activities of the respondent’s workshop in Sutherland. That required him to carry out vehicle detailing.  On 28 January 2017 he slipped on a wet soapy floor while working in a wash bay, injuring his neck and right shoulder.  As a consequence of those injuries he subsequently suffered a condition in his left shoulder.

  2. The appellant’s solicitors arranged for the appellant to be examined by hand and plastic reconstructive surgeon Dr Min Fee Lai for the purpose of assessing whether the appellant had a permanent impairment from his injury and consequential condition in his left shoulder.  That examination occurred on 11 May 2020.  On 22 May 2020 Dr Lai wrote to the appellant’s solicitors reporting that she had assessed the appellant had 17% whole person impairment (WPI) from his injury, comprised of 6% WPI from the appellant’s left upper extremity, 4% WPI from his right upper extremity, 6% WPI from his cervical spine, and 1% WPI for scarring. 
    Dr Lai advised that she had assessed the appellant’s total impairment from his cervical spine was 7% WPI, but considered that pre-existing degeneration in the appellant’s cervical spine contributed to this impairment and, as a consequence, she deducted 10% of the impairment when assessing the appellant’s impairment from his injury, and hence her assessment that the appellant had 6% WPI from his cervical spine, when rounded, due to his injury.

  3. On 12 February 2021 the appellant signed a Permanent Impairment Claim Form seeking compensation from the respondent for 17% WPI he claimed to have suffered as a result of his injury on 28 January 2017 and consequent condition in his left shoulder.  On that same date the appellant’s solicitors wrote to the respondent’s insurer enclosing that claim form as well as Dr Lai’s report dated 22 May 2020.

  4. The respondent’s solicitors then arranged for the appellant to be examined by orthopaedic surgeon Dr Robin Diebold.  He examined the appellant on 26 March 2021. 

  5. Dr Diebold had on two prior occasions examined the appellant with respect to claims the appellant had made for other types of compensation. 

  6. In a report of 25 March 2020, which followed his examination of the appellant on that day,
    Dr Diebold expressed his view that the appellant’s left shoulder condition was due to bilateral trapezial muscle pain and that this condition was not related to the injury that the appellant had suffered to his right shoulder.  He also expressed his view that the appellant did not suffer cervical spine pain. 

  7. In the report Dr Diebold sent to the respondent’s solicitors dated 26 March 2021, which followed his examination of the appellant on that day, Dr Diebold repeated his view that the condition in the appellant’s left shoulder was not related to the injury the appellant had suffered to his right shoulder, but rather myofascial pain, which he considered was not secondary to the injury the appellant has suffered to his right shoulder.  He also expressed his view that the appellant’s cervical spine pain was due to myofascial pain and trapezius and periscapular muscles.  Dr Diebold advised the respondent’s solicitors that he had assessed the appellant had no impairment with respect to his cervical spine, left upper extremity and right upper extremity. 

  8. Following Dr Diebold’s report of 26 March 2021, the respondent’s insurer, AAI Ltd trading as GIO, wrote to the appellant on 22 April 2021, care of his solicitors, to notify him under s 78 that it disputed liability for his claim for lump sum compensation as a result of his injury on 28 January 2017.  The insurer advised the appellant that its reasons for its decision were that he had not sustained an injury to his cervical spine or left shoulder and that he did not have any permanent impairment resulting from the injury to his right shoulder.

  9. The appellant thereupon lodged with the Personal Injury Commission (the Commission) an Application to Resolve a Dispute (ARD) seeking determination of his claim for compensation for 17% WPI that he said had resulted from his injury.  The matter was referred to Member Mr Anthony Scarcella who conducted a conciliation conference on 4 August 2021 that did not result in a resolution of the appellant’s claim.  The member then conducted an arbitration hearing to determine several issues that were in dispute between the appellant and the respondent relating to whether the appellant had suffered injury to his cervical spine and whether the appellant suffered a consequential condition to his left shoulder.

  10. On 3 September 2021 the member determined that the appellant had suffered injuries on 28 January 2017 to his right shoulder and cervical spine arising out of or in the course of his employment with the respondent and that the appellant suffered a consequential condition to his left shoulder as a result of the injury to his right shoulder in the course of his employment with the respondent on 28 January 2017.  The member ordered that the matter be remitted to the President for referral to a Medical Assessor for assessment of whether the appellant had any WPI from the injury on 28 January 2027.  The member specified the body systems to be assessed were the right upper extremity (right shoulder), left upper extremity (left shoulder), the spine (cervical spine) and the skin (scarring - TEMSKI). 

  11. In the material before the Appeal Panel there is an amended referral that the Commission forwarded to the MA in which the MA was tasked to assess the appellant’s WPI from the injury on 28 January 2017, but in which the body parts referred for assessment were specified to be cervical spine, right upper extremity (shoulder) and left upper extremity (shoulder).  There was no requirement in that amended referral for the MA to assess the impairment the appellant had due to scarring.  It is not apparent from the material before the Appeal Panel what the initial referral to the MA required the MA to assess or whether there was a further amended referral issued to the MA that tasked the MA to assess the appellant’s WPI from scarring.  Whatever be the case, the MA did assess the appellant’s WPI from scarring.

  12. The MA conducted his examination of the appellant on 23 November 2021.  As noted above, the MA issued the MAC on 1 December 2021.  In that he certified that the appellant had 8% WPI from his injury, comprised of 0% WPI with respect to the cervical spine, 4% WPI with respect to the right upper extremity (shoulder), 3% WPI with respect to the left upper extremity and 1% WPI with respect to scarring.

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 Appeal Panel observed that in the application to appeal, the appellant requested he be re-examined by one of the Medical Assessors who is a member of the Appeal Panel.  During its preliminary review, the Appeal Panel came to the view that, for reasons explained below, the MA’s assessment was based on the correct criteria and that the MAC does not contain a demonstrable error. The Appeal Panel consequently cannot revoke the MAC, and the Appeal Panel does not therefore need to nor have the power to require the appellant to be re-examined.[1]

    [1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.

EVIDENCE

  1. The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination. 

MEDICAL ASSESSMENT CERTIFICATE

  1. The appellant’s appeal against the MAC relates only to the MA’s assessment of his impairment with respect to his cervical spine.  The history the MA obtained from the appellant relevant to that included that the appellant had constant pain in his neck which is aggravated by twisting or turning movements.  The MA recorded his finding from his physical examination of the appellant’s cervical spine in the MAC in the following terms:

    “The claimant had normal contour of the cervical spine.  There was no paraspinal muscle spasm.  There was tenderness in the paraspinal muscles but no muscle guarding.  Right and left rotational was to 90 degrees.  Right and left lateral flexion was normal.  Flexion and extension was normal.  There was no other abnormality detected in the cervical spine.”

  2. Some of the MA’s findings from his examination of the appellant’s upper extremities are also relevant to the MA’s assessment of the appellant’s impairment of the appellant’s cervical spine.  Those findings are that the appellant’s reflexes in his arms were intact and that there was no unilateral muscle wasting in the appellant’s upper extremities.  Further the MA recorded that the appellant had indicated that he gets tingling over the fronts and backs of both hands at night which comes and goes.  The MA noted that “clinically today there was no disturbance of sensation and no evidence of nerve root tension sign”.

  3. The MA provided brief summaries within the MAC of the findings of some of the radiological investigations the appellant had undergone.  The MA did not include any summary or make any comment on the findings the reporting radiologist made on an MRI done on the appellant’s cervical spine on 15 July 2021. 

  4. The MA provided a summary of the appellant’s injuries and diagnoses.  With respect to the appellant’s neck the MA offered a diagnosis of a soft tissue injury to the neck. 

  5. The MA assessed the appellant’s permanent impairment from his cervical spine to be 0% WPI.  The MA stated that he had based his assessment on the history he obtained on 23 November 2021, his clinical examination on that date, the ARD, the respondent’s reply to the ARD, and the documents attached to the ARD and the reply.  With respect to the appellant’s cervical spine, the MA provided the following reasons for his assessment:

    “Mr Santos has a history of injury and CT scan which was carried out at the same time as the ultrasound of his right shoulder which showed multi level degenerative changes but no evidence of frank injury.  Clinical examination today reveals that the claimant has a full range of movement with no evidence of muscle spasm, alteration of spinal contour or any evidence of upper limb radiculopathy.  I therefore refer you to the AMA 5th Edition of the Guides of the Evaluation of Permanent Impairment, Chapter 15, Table 15-5 on page 392 and Mr Santos will be placed in DRE Category 1 which is 0% whole person impairment.”

  6. The MA noted that Dr Lai had assessed the appellant’s impairment of the appellant’s cervical spine by reference to DRE Category II, but the MA stated that his examination of the appellant revealed “there is a symmetrical range of movement with no muscle spasm and no other clinical signs” and the MA said that “it is more appropriate to assess the claimant as DRE Category I which is 0% whole person impairment”.  The MA also observed that
    Dr Diebold in his reports dated 25 March 2020 and 26 March 2021 found no evidence of any clinical signs in the neck and the MA stated that he agreed with that.

SUBMISSIONS

  1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

  2. In summary, the appellant submitted that the MA ought to have classified his impairment of his cervical spine as being within DRE Cervical Category II.  The appellant referred to two alternate sets of criteria listed within Table 15-5 of AMA 5 by reference to which the appellant submitted his impairment could be classified as DRE Cervical Category II. 

  3. The appellant submitted that the MA did not correctly consider whether he had exhibited nonverifiable radicular complaints and, by virtue of not doing so, the MAC contains a demonstrable error. 

  4. The appellant also submitted that the MA ignored evidence that revealed he had previously suffered radiculopathy.  The appellant noted the MA did not comment or refer to the opinion of the radiologist who reported on the MRI scan of 15 July 2020. The appellant submitted that by virtue of the MA not having regard to evidence of prior radiculopathy and by not referring to the MRI, the MA did not consider the second set of criteria by which his impairment could have been classified as DRE Cervical Category II.  The appellant submitted the MA had not therefore based his assessment on correct criteria. 

  5. In reply, the respondent submitted that the MA obtained a detailed history and that the MA made clinical findings from his examination of the appellant and that the MA based his assessment of the appellant’s impairment on that.  The respondent noted that the MA disclosed in the MAC that from his clinical examination of the appellant he found the appellant had full range of movement with no evidence of muscle spasm, alteration of spinal contour or upper limb radiculopathy, and the respondent submitted that, by making those findings, the MA had found that the appellant did not have nonverifiable radicular complaints during the examination.  The respondent submitted that the MA’s absence of comment on the MRI scan of the appellant’s cervical spine on 15 July 2020 did not amount to a demonstrable error because it was not incumbent upon the MA to comment on every document provided to him but rather to consider all the evidence and provide reasons for his opinion.  The respondent submitted the MA had done that. 

  6. With respect to the appellant’s submission that the MA failed to consider the alternative criteria for an assessment to be made under DRE Category II, the respondent submitted that the MA was required to base his assessment on the clinical features that were present at the time the assessment was and that any past complaints by the appellant of radiculopathy were insufficient therefore to enable a finding of DRE Category II.

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.

  3. The criteria specified within Table 15-5 of AMA 5, by which the appellant contends that the MA ought to have assessed his impairment as falling within DRE Cervical Category II, are as follows:

    “Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity

    or

    individual had clinically significant radiculopathy and an imaging study that demonstrated a herniated disk at the level and on the side that would be expected based on the radiculopathy, but has improved following nonoperative treatment.”

  4. The MA’s findings from his examination of the appellant relevant to the impairment of the appellant’s cervical spine were that the appellant had normal contour of the cervical spine and had normal right and left lateral flexion, had no paraspinal muscle spasm, had tenderness in the paraspinal muscles but no muscle guarding, had right and left rotation to 90 degrees, had normal flexion and extension, had intact reflexes in both arms, had no unilateral muscle wasting and had no clinically relevant disturbance of sensation and no evidence of nerve root tension sign. 

  5. Those findings confirm that the appellant did not exhibit nonverifiable complaints at the time the MA examined him. 

  6. The MA noted in the MAC, and was therefore aware, that the appellant complained of experiencing tingling over the fronts and backs of his hands at night which came and went.  That however is not evidence of radiculopathy because the symptoms that the appellant described is a sensation experienced globally in both hands and consequently does not indicate a symptom within a radicular distribution; that is a set of symptoms falling within the distribution of a nerve root.  Consequently it does not constitute a nonverifiable radicular complaint. 

  7. Hence, based on the MA’s findings at examination, the appellant did not meet the first set of criteria as set out in [35] by which his impairment of his cervical spine could be classified as falling within DRE Cervical Category II. 

  8. The Appeal Panel does not accept the respondent’s submissions regarding the second set of criteria set out at [35] that the appellant was required to have exhibited radiculopathy at the time of the MA’s examination of the appellant in order to meet these criteria.  This is necessarily the case because the criteria required that the appellant “had” clinically significant radiculopathy and also that the radiculopathy had improved with non-operative treatment.  In other words, contrary to what the respondent submitted, if prior to the examination by the MA, the appellant had clinically significant radiculopathy but had experienced improvement following non-operative treatment, and there was an imaging study that demonstrated a herniated disc at the level and on the side that would be expected based on the radiculopathy the appellant had previously experienced, then the appellant would have complied with these criteria and could have been assessed as falling within DRE Cervical Category II. 

  1. However, the evidence in this case does not establish that the appellant previously had “clinically significant radiculopathy”.  The appellant said in his statement of 29 April 2021 that he occasionally felt pins and needles going down both of his arms down to his fingertips.  Further to that, the appellant described to the MA that he experienced tingling over the fronts and back of both hands at night which came and went.  Those symptoms do not represent radiculopathy because, as said above, they are symptoms experienced globally in both hands and not within a radicular distribution. 

  2. The appellant also referred to Dr Lieu’s report of 24 February 2017 wherein Dr Lieu within the history he obtained noted that the appellant had experienced constant moderate to severe pain around the posterior lateral aspect of his shoulder with some radiation to his neck.  That also is not describing a symptom indicative of radiculopathy as it not a symptom within a radicular distribution.  That is, the symptom is no within the distribution of a particular nerve root. 

  3. The appellant also referred to the history radiologist Dr Laughlin Dawes set out in his report on the MRI of the appellant’s cervical scan done on 15 July 2020 that the appellant had “painful neck with radiculopathy in both arms”.  In all likelihood that history would have been provided to Dr Dawes by the appellant’s general practitioner (GP) who referred the appellant for MRI examination.  The Appeal Panel also observes that a similar history was recounted by Dr Chee Chung Hiew in his report on a CT scan of the appellant’s cervical spine that was done on 7 February 2017.  There is however, no note or record within the appellant’s GP’s medical records that substantiates the appellant exhibited signs of or complained of symptoms of radiculopathy at any consultation he had with his GP. 

  4. The Appeal Panel notes from a record the appellant’s GP made with respect to a consultation on 31 January 2017, which resulted in the appellant’s GP referring the appellant for CT investigation of his cervical spine that the GP’s examination revealed that the appellant was tender on abduction, had a tender right neck and restricted range of motion of the neck and that the appellant’s “DTR of UL was intact”.  The Appeal Panel notes that the appellant reported to his GP having a painful right shoulder and pain along the left neck down the shoulder.  Those findings and symptoms do not reveal that the appellant had radiculopathy. 

  5. The Appeal Panel further observes that the appellant’s GP noted in the clinical record he made for a consultation the appellant had on 8 May 2018, that the appellant’s reason for visiting was “neck pain with radiculopathy”.  There is no record however that was made with respect to that consultation the signs or symptoms with which the appellant presented at the consultation by which radiculopathy could have been diagnosed.

  6. The Appeal Panel also notes that the appellant’s treating neurosurgeon, Dr Renata Bazina, reported to the appellant’s GP on 18 December 2018 that the appellant had no history of radicular signs or pains.

  7. Simply put, there is no material before the Appeal Panel that establishes the appellant had suffered previously clinically significant radiculopathy, that is exhibiting signs or symptoms within a radicular distribution of a particular nerve root or experiencing symptoms within a radicular distribution of a particular nerve root.

  8. It is the case that the MA did not make reference to the MRI of the appellant’s cervical spine done on 15 July 2020 on which Dr Dawes reported.  That investigation, in the opinion of
    Dr Dawes, revealed mild disc herniations at C4/C5 and C5/C6.  However, absent there being evidence that revealed that the appellant previously suffered clinically significant radiculopathy, that CT investigation, of itself, does not allow the appellant’s impairment to be classified as being within DRE Cervical Category II.

  9. In the Appeal Panel’s view the MA made his assessment based on the correct criteria and applied that criteria correctly to assess the appellant’s impairment with respect to his cervical spine.  Further, in the Appeal Panel’s view, the MAC does not contain a demonstrable error.

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


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