Saveski v Brunjev Pty Limited
[2024] NSWPICMP 254
•1 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Saveski v Brunjev Pty Limited [2024] NSWPICMP 254 |
| APPELLANT: | Gordon Saveski |
| RESPONDENT: | Brunjev Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 1 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Upper extremity assessments; appeal by the worker alleged deterioration two weeks after assessment and sought to rely on additional evidence; submitted the Medical Assessor (MA) was in error in finding that the worker had reached maximum medical improvement (MMI); the Appeal Panel found that the approach taken by the MA, when faced with inconsistent presentation by the appellant, is adequately reasoned and in accordance with the correct criteria in the Guidelines; the additional evidence does not reach the necessary threshold for the appeal to succeed, namely that the appellant has suffered a deterioration in his condition that results in an increase in the degree of permanent impairment; nor is the additional evidence sufficient to establish that the appellant has not reached MMI contrary to the finding of the MA; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 December 2023, Mr Gordan Saveski (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
15 December 2023.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):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (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).
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 Procedural Direction PIC7.
The appellant did not request that the worker undergo a re-examination by a Medical Assessor member of the Appeal Panel. The Appeal Panel did not consider a re-examination was necessary because the Appeal Panel did not find error. Absent a finding of error the Appeal Panel has no power to require the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) statement of the appellant dated 19 December 2023;
(b) referral by Dr Seckold to Dr Bateman dated 19 December 2023, and
(c) Certificate of Capacity dated 19 December 2023.
The appellant submits that the evidence is relevant and evidences deterioration since the MAC.
The respondent objects to the admission of the additional evidence.
The Appeal Panel determines that the evidence should be received on the appeal so that the question of the alleged deterioration resulting in an increase in the degree of permanent impairment could be considered.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment as well as the additional evidence referred to above and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but 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.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
•
Date of injury:
10 September 2011
•
Body parts / systems referred:
Left upper extremity (primary injury to the left shoulder and consequential conditions to the left elbow and wrist)
Right upper extremity (consequential conditions to the right shoulder, right elbow, right wrist)
Cervical spine
•
Method of assessment:
Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 10/09/2011 | P 28 p 4.34 | P 392 15.5 | 6% | 1/10th | 5% |
| Left upper extremity | 10/09/2011 | P 7 p 1.36 | 6% | 0 | 6% | |
| Right upper extremity | 10/09/2011 | P 7 p 1.36 | 6% | 0 | 6% | |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
The worker appealed.
In summary, the appellant submitted that the Medical Assessor made demonstrable errors as follows:
(a) it is submitted that the appellant has suffered a deterioration in his condition since the MAC was carried out, and that it is likely that he is going to require further surgery to his right elbow and also his right shoulder. On this basis the worker submits he has not reached maximum medical improvement, and
(b) the appellant submitted that the Medical Assessor has made a demonstrable error, noting that Medical Assessor suggested that the appellant “is either not at MMI or that assessment of range of motion is not an accurate measurement of assessment of impairment in this case”. The appellant submitted that without explanation the Medical Assessor then goes on to answer on page 5, in response to whether all systems have reached maximum medical improvement, his reply is “Yes”. The appellant submitted that is in contradiction to the statement by the Medical Assessor made above.
The respondent employer, Brunjev Pty Limited (the respondent) submitted that the Medical Assessor has not made a demonstrable error or made an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The Medical Assessor is required to conduct an independent assessment on the day of examination.
The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Saveski was working as a security guard. He was at a facility entrance, checking IDs. A patron snuck in behind him. A colleague pushed the patron, who fell onto
Mr Saveski, who then fell down two steps, landing on his left outstretched arm and right shoulder. He developed immediate pain in the left shoulder. He had a scalp laceration. He was taken to Maitland Hospital where his scalp wound was sutured and he had an x-ray of his shoulder and was then discharged. He went on to have an MRI of his left shoulder, which demonstrated a left supraspinatus tear. He was initially referred to Dr Posel, Orthopaedic Surgeon who recommended surgery on the shoulder. He then went to another surgeon, Dr Bateman who undertook surgery on 18 December 2011. Fixation of the biceps tenodesis failed and he had this revised on 9 January 2012.Over time, pain in the left shoulder increased. He returned to Dr Bateman, who undertook an MRI on the left shoulder. On 3 November 2015 he underwent a biceps tenodesis, which helped the pain in the left shoulder.
Mr Saveski developed pain over the left elbow. In 2014 he saw Dr Halpin, Sports Physician, who undertook an MRI. It demonstrated tendinopathy in both the medial and lateral epicondyles. He had PRP injections which helped but unfortunately he had recurrent symptoms and went on to have a second injection.
Since the accident, Mr Saveski has had pain in his neck. He was reviewed by
Dr Christie, Neurosurgeon on 21 October 2015. Dr Christie notes cervical MRI which demonstrates some mild degenerative disease at C5/6 but no significant nerve root impingement. He recommends nonoperative treatment. In 2019 Mr Saveski reported numbness in the ulnar digits of his hands. He was referred to Dr Myers, Hand Surgeon. Dr Myers, in his clinical letter of 31 January 2019, notes Mr Saveski complaining of a pulling sensation in the front of his wrist and postulates failure of the palmaris longus tendon after a tenocyte harvest with secondary irritation of the median nerve. He was referred for nerve conduction studies, which demonstrated some left sided ulnar nerve conduction delay at the cubital tunnel. At review on 7 March 2019, Dr Myers recommends bilateral carpal tunnel and ulnar nerve transposition. He underwent left sided surgery around August 2020 and then right sided surgery on
18 December 2020. He had good relief of elbow and wrist symptoms on the left. On the right he has persistent pain over the triceps insertion of the elbow and numbness in the little finger.Present treatment:
Mr Saveski continues with physiotherapy for the right shoulder with rotator cuff exercises. He intermittently has PRP injections into his right triceps tendon. He intermittently takes Endone for headaches and elbow pain. He takes Lyrica for neck pain.
Present symptoms:
Neck: He has upper neck pain with headaches that radiate around to the left eye. He notes reduced range of motion in both rotation and extension.
Left Shoulder: He has pain in the front of the left shoulder, particularly with elevation.
Right Shoulder: He has pain in the front of the right shoulder with a clicking sensation on movement.
Left Elbow: No significant symptoms.
Right Elbow: Pain at the triceps insertion.
Left Wrist: No significant symptoms.
Right Wrist: Persistent numbness of the right little finger.
Details of any previous or subsequent accidents, injuries or conditions:
Mr Saveski denies any previous injuries.
General health:
Mr Saveski reports that his health is otherwise normal. He takes no regular medications and has no allergies.
Work history including previous work history if relevant:
Nil relevant.
Social activities/ADL:
Mr Saveski previously enjoyed mountain bike riding and gym work. He is unable to do these as he cannot hold or pull on handles without aggravating his elbow pain.”
The Medical Assessor recorded his findings on physical examination as follows:
“On examination he was a fit looking man in no obvious distress. There was no wasting or deformity around the shoulder girdle. There were well healed surgical scars. The range of motion in the shoulders was assessed as follows:
MOVEMENT
LEFT
RIGHT
Flexion
180°
90°
Extension
30°
30°
Abduction
100°
90°
Adduction
20°
20°
Internal rotation
30°
30°
External rotation
60°
60°
Range of motion in the elbows was assessed as follows:
MOVEMENT
LEFT
RIGHT
Flexion
100°
100°
Extension
-10°
-10°
Pronation
30°
80°
Supination
80°
80°
Wrist range of motion was assessed as follows:
MOVEMENT
LEFT
RIGHT
Flexion
30°
40°
Extension
20°
50°
Radial deviation
10°
20°
Ulnar deviation
20°
30°
There was a 5cm incision well healed in the medial elbow consistent with ulnar nerve transposition.
Cervical spine range of motion demonstrated restricted extension and rotation bilaterally. Upper limb reflexes were symmetrical with a negative Hoffman test. Power was intact.
Lower limb reflexes were symmetrical, with downgoing Babinskis.”
The Medical Assessor noted in regard to special investigations as follows:
“I was able to review no imaging related to the injuries.”
The Medical Assessor summarised the injury and diagnosis as follows:
“Summary of injuries and diagnoses:
Mr Saveski was injured in a fall and sustained injury to his right and left shoulders. He also had pain in his neck. He has gone on to have surgery on both shoulders. He developed elbow pain, which was treated with PRP injections. Mr Saveski then went on to have bilateral ulnar nerve transpositions and carpal tunnel releases. He has developed insertional tendinitis of the right triceps insertion.”
In respect of consistency of presentation the Medical Assessor noted as follows:
“Mr Saveski was cooperative throughout the assessment. His restricted range of motion, particularly in the elbows and wrists is not consistent with the diagnosed injuries or consequences of surgical treatment he has undergone. The variability between the motion found at different time points and different assessments suggests Mr Saveski is either not at MMI or that assessment of range of motion is not an accurate measure of assessment of impairment in this case.”
The Medical Assessor explained his calculation of impairment as follows:
“REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment:
BODY PART
% WHOLE PERSON IMPAIRMENT
Cervical spine
6% whole person impairment
Left upper extremity (primary injury to the left shoulder and consequential conditions to the left elbow and wrist)
6% whole person impairment
Left upper extremity (consequential conditions to the right shoulder, right elbow and right wrist)
6% whole person impairment
In making that assessment, I have taken into account the following matters:
Review of the material provided and a detailed examination of the claimant.
b. An explanation of my calculations, if applicable:
The ranges of motion for the shoulders, elbows and wrists are detailed above. As previously stated, significant restriction of range of motion, particularly in the elbows and twists is not consistent with the injuries diagnosed or to be regarded as consequences of surgical treatment Mr Saveski has had. Furthermore, the variability in ranges of motion as detected by Drs Kleinman, Breit and myself either suggest that Mr Saveski is not at MMI, has an alternative diagnosis or that range of motion is not a reliable method to assess Mr Saveski’s impairment.
In accordance with SIRA page 7, paragraph 1.36 and my clinical skill and judgement, the measurements are not plausible and consistent with the impairment being evaluated. Accordingly, I have modified the assessment of impairment for both upper extremities to 6% whole person impairment.
The cervical spine is assessed according to AMA 5 page 392, Table 15.5 as DRE Cervical Category II. An additional 1% is added for restrictions of activities of daily living according to SIRA page 28, paragraph 4.34.
The Medical Assessor made brief comment on the other evidence and medical opinion before him as follows:
“With respect to the report by Dr Kleinman dated 23 April 2023, I agree with the assessment of the cervical spine as DRE Cervical Category II. I have added 1% for restrictions of activities of daily living.
I found slightly more restricted range of motion in the left shoulder. I found normal flexion and extension in both elbows but restriction of pronation and supination, which was not evident at the time of Dr Kleinman’s assessment. I am unable to explain such variability in assessment. I found more restriction in range of wrist movements than those noted above. Restriction in wrist movement is inconsistent with Mr Saveski’s injury or carpal tunnel release.
With respect to the report by Dr Breit dated 30 June 2023, I share his concerns with respect to the accuracy of assessment of range of motion for assessing Mr Saveski’s impairment. I agree with his comments with respect to the median and ulnar nerve releases.
I am in agreement with the assessment of the cervical spine as DRE Cervical Category II with the addition of 1% for restrictions of activities of daily living.
I am in agreement with Dr Breit in making assessment according to SIRA Guidelines 7, paragraph 1.36 for 6% whole person impairment for the left upper extremity and 6% whole person impairment for the right upper extremity.”
The Medical Assessor is entitled to rely on his clinical findings on the day of examination and to make an assessment of impairment based upon those findings.
There are two parts to this appeal. Dealing firstly with the submission that the additional evidence shows a deterioration in the condition that is likely to lead to an increased in the permanent impairment assessed.
The additional evidence does no more than show that on his own report the appellant said he had an increase in symptoms in his elbow and shoulder some two weeks after he was assessed by the Medical Assessor. He consulted his general practitioner (GP) Dr Seckold. His GP provided him with an updated certificate of capacity in which he still retained some capacity for work. The GP referred him to specialists for further review. The appellant suggests that this means he will likely come to surgery to his shoulder and elbow.
There was no additional imaging undertaken.
The reports from the specialist are not available because the appointments have not taken place.
The additional evidence establishes no more than a complaint of an increase in symptoms and referrals to specialist for review. The GP refers to ongoing pain rather than any deterioration in symptoms.
The additional evidence does not meet the test of showing a deterioration of the worker’s condition that results in an increase in the degree of permanent impairment.
The appellant complains on appeal that the additional evidence shows that the appellant’s condition has not reached maximum medical improvement (MMI) and that in any event the Medical Assessor was in error in finding that he reached MMI. In the appellant’s view, this error is borne out in the statement by the Medical Assessor as follows:
“His restricted range of motion, particularly in the elbows and wrists is not consistent with the diagnosed injuries or consequences of surgical treatment he has undergone. The variability between the motion found at different time points and different assessments suggests Mr Saveski is either not at MMI or that assessment of range of motion is not an accurate measure of assessment of impairment in this case.”
The appellant complains on appeal that the Medical Assessor statement is inconsistent with the Medical Assessor simply stating later in his MAC that he has reached MMI.
However, the MAC must be read as a whole and also with regard to the correct criteria for assessment laid out in the Guidelines.
In respect of inconsistent presentation, the Guidelines provide at paragraph 1.36 as follows:
“Inconsistent presentation
1.36 AMA5 (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.’ This paragraph applies to inconsistent presentation only.”
In respect of the assessment of the upper extremity, the Guidelines provide in paragraphs 2.3-2.5 as follows:
“The approach to assessment of the upper extremity and hand
2.3 Assessment of the upper extremity mainly involves clinical evaluation. Cosmetic and functional evaluations are performed in some situations. The impairment must be permanent and stable. The claimant will have a defined diagnosis that can be confirmed by examination.
2.4 The assessed impairment of a part or region can never exceed the impairment due to amputation of that part or region. For an upper limb, therefore, the maximum evaluation is 60% whole person impairment (WPI), the value for amputation through the shoulder.
2.5 Range of motion (ROM) is assessed as follows:
2.5.1 A goniometer or inclinometer must be used, where clinically indicated.
2.5.2 Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
2.5.3 If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation.
2.5.4 If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Guidelines.
2.5.5 If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
When the MAC is read as a whole the Medical Assessor very clearly finds that the appellant has reached MMI but the appellant was not making a full effort with regard to range of motion (ROM).
It is clear from the Medical Assessor’s reasons that he has considered whether the discrepancies in the ROM meant the appellant was not at MMI. It is readily apparent from a proper reading of the MAC that he finds the appellant has reached MMI but that the discrepancies in the ROM mean that the ROM findings are not able to be used as an accurate measure of impairment and in accordance with paragraph 1.36 of the Guidelines his clinical judgement in assessing impairment has been used instead as follows:
“The ranges of motion for the shoulders, elbows and wrists are detailed above. As previously stated, significant restriction of range of motion, particularly in the elbows and twists is not consistent with the injuries diagnosed or to be regarded as consequences of surgical treatment Mr Saveski has had. Furthermore, the variability in ranges of motion as detected by Drs Kleinman, Breit and myself either suggest that
Mr Saveski is not at MMI, has an alternative diagnosis or that range of motion is not a reliable method to assess Mr Saveski’s impairment.In accordance with SIRA page 7, paragraph 1.36 and my clinical skill and judgement, the measurements are not plausible and consistent with the impairment being evaluated. Accordingly, I have modified the assessment of impairment for both upper extremities to 6% whole person impairment.”
The approach taken by the Medical Assessor when faced with inconsistent presentation by the appellant is adequately reasoned and in accordance with the correct criteria in the Guidelines. The Appeal Panel can find no error in the approach by the Medical Assessor. The additional evidence does not reach the necessary threshold for the appeal to succeed, namely that the appellant has suffered a deterioration in his condition that results in an increase in the degree of permanent impairment. Nor is the additional evidence sufficient to establish that the appellant is not MMI contrary to the finding of the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on
15 December 2023 should be confirmed.
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