Secretary, Department of Customer Service v Kouros
[2023] NSWPICMP 193
•8 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Customer Service v Kouros [2023] NSWPICMP 193 |
| APPELLANT: | Secretary, Department of Customer Service |
| RESPONDENT: | Anastasia (Tess) Kouros |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 8 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appeal from finding that claimant suffered de Quervain’s syndrome; whether de Quervain’s syndrome can be cured; Held – appeal misconceived as de Quervain’s syndrome is recurrent and employer’s reliance on previous surgical release on both wrists did not signify that the claimant had totally recovered; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 November 2022 Secretary, Department of Customer Service, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Drew Dixon, a Medical Assessor, who issued a Medical Assessment Certificate (MAC), on 11 November 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 (the 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 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 13 October 2022 the delegate of the President referred this matter to the Medical Assessor for assessment of WPI caused by “consequential injury” to the left upper extremity (wrist) and shoulder, and the right upper extremity (wrist) and shoulder. We note in passing that there is no such thing as a “consequential injury”, but nothing turns on this mis-description. The referral named a date of injury as 24 August 2005.
Ms Kouros was employed as a clerical worker commenced with the respondent in 1984 (she was born in 1956). She developed a carpal tunnel syndrome between the 2000 and 2001 which was surgically treated but she developed de Quervain’s tenosynovitis in 2009. She underwent a surgical release on the right wrist in July 2010, and the left wrist in September 2010. However in December 2010 investigations demonstrated that the de Quervain’s tenosynovitis had recurred.
On 16 April 2012 further surgical release of the de Quervain’s area was performed on the left wrist and although she continued to suffer symptoms, the treating surgeon Dr Nabarro was not prepared to perform any further surgery. Ms Kouros continued to suffer stiffness and weakness of both wrists with recurrent de Quervain’s syndrome in 2022.
The Medical Assessor assessed 8% WPI in relation to the left upper extremity, 10% WPI in relation to the right upper extremity, a combined table value of 17% 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 Procedural Direction PIC7.
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.
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.
This appeal challenged the finding by the Medical Assessor that Ms Kouros suffered from de Quervain’s tenosynovitis.
The MAC
The Medical Assessor took a comprehensive history in paragraph 4 of Ms Kouros’ previous history regarding her wrists.[1] He noted a right carpal tunnel release on 2006, which was followed by a left carpal tunnel release in 2008. The Medical Assessor noted that in
October 2009 Ms Kouros had developed de Quervain’s tenosynovitis, and that inJanuary 2010 that diagnosis was confirmed. He noted that Ms Kouros came to a right wrist release of the de Quervain’s tenosynovitis in July 2010, and for the same problem in the left wrist, in September 2010.[1] Appeal papers page 19.
The Medical Assessor then related that in February 2011 Ms Kouros experienced a recurrence of her de Quervain’s tenosynovitis, in respect of which he noted that
Dr McGuigan was unable to offer any explanation as to its recurrence. The Medical Assessor noted a further operation on the left wrist to release the de Quervain’s area on 16 April 2012.The Medical Assessor recorded that Ms Kouros had persisting pain, tightness and loss of movement and loss of strength of both shoulders in December 2022 together with “stiffness and weakness of both wrists with recurrent de Quervain’s syndrome…”
The Medical Assessor recorded that Ms Kouros was experiencing “recurrent pain and swelling in the de Quervain’s area of both wrists…”[2] On examination the Medical Assessor said:[3]
“She had severe de Quervain’s tenosynovitis with moderate hypertrophic synovial swelling at the base of both thumbs in the region of the EPB and APL tendon sheaths which were tender, with a positive Finkelstein’s test. There was no neurovascular deficit in either hand and she had a full range of motion of both wrists, fingers and elbows.”
[2] Appeal papers page 19.
[3] Appeal papers page 20.
In his summary, the Medical Assessor said:[4]
“This claimant developed bilateral de Quervain’s tenosynovitis in the course of her work duties…”
[4] Appeal papers page 21.
In explaining his calculations, the Medical Assessor noted:[5]
“The history of injury to her wrists and shoulders, and the operative interventions for de Quervain’s tenosynovitis with synovectomies….”
[5] Appeal papers page 22.
The Medical Assessor considered the other expert opinions before him and noted the prior history therein given of Ms Kouros’ management of her de Quervain’s tenosynovitis, including the surgical procedures she came to. He considered all the reports relied on by the appellant employer.
SUBMISSIONS
Appellant employer
The appellant employer submitted that the Medical Assessor had made an error in his calculation. This is correct. The Medical Assessor mistakenly used the term “whole person impairment” when he should have used the term “upper extremity impairment”. We have however examined his calculations and note that he did not carry that error through. We were unable to locate any other “obvious error” (as was asserted), let alone any that would combine with what clearly was a typographical error (as was also asserted). We note that the appellant employer was unable to articulate them either.
We are therefore satisfied that nothing turns on the Medical Assessor’s corrected error of description.
Secondly, the appellant employer submitted that the Medical Assessor had fallen into error by finding that Ms Kouros suffered from moderate de Quervain’s tenosynovitis. We were referred to the opinions of various experts. The appellant employer observed that:
· on 29 June 2022 Dr Bentivoglio confirmed that whilst Ms Kouros had developed de Quervain’s tenosynovitis in both wrists, there was no longer any evidence of it present on that date;
· on 4 April 2022 Dr Guirgis recorded complaints of residual tenderness and that she was suffering residual symptoms after the de Quervain’s tenosynovitis release, and
· on 20 November 2017 Dr McGuigan related that Ms Kouros some years earlier had suffered de Quervain’s syndrome.
The qualified specialists, the appellant employer argued, therefore “would seem to have accepted” that the worker no longer suffers from de Quervain’s tenosynovitis.
It followed, the appellant employer argued, that there was no basis for a finding that at the date of the examination by the Medical Assessor, Ms Kouros was suffering from de Quervain’s tenosynovitis. Ms Kouros had been surgically treated for that condition and any pain or discomfort in her wrists was as a result of the surgery.
Respondent’s submissions
Ms Kouros made submissions of the most general nature which related mainly to the experience of the Medical Assessor, whose opinion, it was argued, should therefore be preferred.
DISCUSSION
The appeal must be rejected. It was founded on the proposition that de Quervain’s tenosynovitis can be cured by surgery. This is an assumption without any medical basis. A simple reading of both the history recorded and the fourth paragraph of the Medical Assessor’s reasons, referred to above, demonstrates that such an assumption is baseless. De Quervain’s syndrome may often be recurrent, as Ms Kouros’s history itself demonstrates.
For these reasons, the Appeal Panel has determined that the MAC issued on
11 November 2022 should be confirmed.
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