Secretary, Department of Education v Read
[2023] NSWPICMP 154
•24 April 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Education v Read [2023] NSWPICMP 154 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Mandy Ruth Read |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 24 April 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appeal of assessment of injury to right upper extremity as a result of assault; cervical and lumbar spine assessments not controversial; employer argued that the Medical Assessor should not have combined an assessment of the range of motion of the worker’s wrist with the assessment arising from a peripheral nerve injury; worker in fact suffered a wrist injury and a separate peripheral nerve injury; impairment did not arise solely as a result of a peripheral nerve injury so that the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 paragraph 2.9 did not preclude assessment of the range of motion; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 January 2023 the Secretary, Department of Education (the Department) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 January 2023.
The Department relies on the grounds of appeal under s 327(3)(c) and (d) 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 was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment, limited to the grounds 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, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Read was employed as assistant travel support officer by the Department, assisting in the transportation of special needs children to school. On 15 June 2018 the vehicle in which she was travelling was struck by another car. One of the children panicked and began assaulting her. She suffered injuries to her neck, back and right wrist as well as concussion.
Ms Read claimed permanent impairment compensation. The Personal Injury Commission was not required to determine any dispute and the claim was referred to a Medical Assessor to assess permanent impairment arising from injures to Ms Read’s cervical spine, lumbar spine and right upper extremity as well as scarring.
The Medical Assessor assessed 15% whole person impairment (WPI) comprised of 7% in respect of Ms Read’s cervical spine, 7% in respect of her lumbar spine, 8% in respect of her right upper extremity and 0% for scarring. The Medical Assessor deduced one half of the assessments of Ms Read’s cervical and lumbar spines under s 323 of the 1998 Act.
The appeal relates only to the Medical Assessor’s assessment of Ms Read’s right upper extremity.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Read to undergo a further medical examination because the assessment made by the Medical Assessor does not disclose an error.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC 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 we have considered them.
In summary, the Department submitted that the Medical Assessor did not assign the appropriate grade to the severity of sensory deficit in Ms Read’s right upper extremity and that he should not have combined his evaluation of neurological function with range of motion. The Department noted that the Medical Assessor had referred to grade 2 sensory deficit under Table 16-10 of AMA 5 which was not appropriate for a deficit in the range
26-60% and said that the Medical Assessor had intended to assess grade 3.The Department also said that the Medical Assessor erred in combining his evaluation of neurological dysfunction with loss of the range of motion, noting paragraph 2.9 of the Guidelines. It said that it was clear from the MAC that the Medical Assessor considered that Ms Read’s upper extremity impairment resulted only from the peripheral nerve injury.
In reply and in submissions prepared by Ms Magee of counsel, Ms Read agreed that if the Medical Assessor found a sensory deficit of 50% then grade 2 was appropriate. However, she said there was no basis to say that 50% “involvement” equates to 50% sensory deficit and that the Medical Assessor had correctly assessed her in grade 2 under Table 16-10.
Ms Read said that the Medical Assessor did not consider that her upper extremity impairment resulted solely from a peripheral nerve injury so that he correctly combined neurological dysfunction with the range of motion of her right upper extremity.
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 an 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 MAC is brief, though a careful reading does disclose the Medical Assessor’s reasons. The material in the file is also limited and there is no a complete copy of the notes of Ms Read’s treating surgeon, Dr Hounslow. The notes with respect to the treatment of her right upper extremity end in 2021.
The Medical Assessor said:
“…Radiological investigations were taken. It was identified that she had a right wrist injury. She experienced a lot of pins and needles down the ulnar side of her right hand and to a lesser extent the thumb. She eventually came under the care of Specialist Hand Surgeon, Dr Sarah Hanslow. An ulnar nerve transposition procedure was conducted on 21/01/21. Initially, this gave her some improvement but then this seemed to fade. Her only other care has been hand therapy and physiotherapy. The physiotherapy for her neck and right wrist continues. She also does her own exercise regime.”
The Medical Assessor noted that there was a normal range of movement of Ms Read’s shoulders and elbows. He set out the range of motion in her wrists, noting that the range of movement of her right wrist was less than the left. He said:
“The surgical scar over the right cubital tunnel had healed fairly well. This whole area was rather numb.
Sensation to pin prick in the right arm suggested mild alteration of sensation in the ulnar nerve distribution and to a lesser extent in the radial nerve distribution, although this was very minimal. The left arm was normal.
Reflexes were a little difficult to demonstrate but did seem to be present and reasonably equivalent at the elbows (C5 & 7) and at the wrists (C6).”
The Medical Assessor said:
“She did her best to defend herself by raising her right arm in a protective mode across her head and face.
She has been left with a variety of features in which she continues to have the effects of a musculo-ligamentous strain of her cervical and lumbar spine. There are also continuing neurological features in her right arm. Part of her clinical management included decompression at the right cubital tunnel although this does not appear to have made a great deal of difference.”
The Medical Assessor assessed the impairment arising from the loss of the range of movement of Ms Read’s right wrist at 10% upper extremity impairment (UEI). He said:
“Neurological dysfunction: At this assessment, there was evidence of continuing dysfunction of the right ulnar nerve. This is addressed in AMA-5, Page 492,
Table 16-15. With the ulnar nerve either above the mid-forearm or below it, the maximum sensory dysfunction is 7% UEI. This is further modified on Page 482,
Table 16-10. Grade 2 is selected with 50% involvement. Technically, that reduces the upper extremity impairment down to 3.5% which is rounded up in her favour to 4%.This is combined with the 10% from the reduced range of movement, giving 14% upper extremity impairment. From Page 439, Table 16-03 this converts to 8% WPI.”
Assessment of peripheral nerve impairment
The Medical Assessor diagnosed continuing dysfunction of Ms Read’s right ulnar nerve. He described sensory dysfunction in the passage set out at [23] above. He correctly identified that Table 16-15 provided that the maximum percentage applicable to sensory deficit of the ulnar nerve is 7%. Table 16-10a applies to a deficit in the range 26-60% which applies where there is:
“Distorted superficial tactile sensibility (diminished light touch and two-point discrimination), with some abnormal sensations or slight pain, that interferes with some activities.”
The Medical Assessor determined that Ms Read’s sensory deficit fell within than range and that an assessment of 50% was appropriate. He was then required to adopt the procedure in Table 16-10b and to:
“Multiply the severity of the sensory deficit by the maximum upper extremity impairment value to obtain the upper extremity impairment for each nerve structure involved.”
The Medical Assessor multiplied 50% with 7% and assessed 3.5% UEI, which he rounded up to 4% UEI. His methodology was correct based on his observations and the reference to grade 2 is a typographical error only. The typographical error could have been corrected by an application to the President under cl 73 of Procedural Direction PIC7.
Right wrist injury
The Medical Assessor set out his assessment in respect of the range of motion of Ms Read’s right wrist. The medical evidence in the file shows that Ms Read suffered an injury to her wrist which is separate to the peripheral nerve injury.
Ms Read underwent an MRI scan on 6 July 2018 and the radiologist noted the clinical history:
“Direct trauma to ulnar aspect of wrist with pan over the extensor tendons of thumb overlying MCP joint.”
Dr Woodward observed:
“Bulky heterogeneous oedematous ligament dorsal and volar radioulnar ligaments with features suspicious for traumatic partial avulsion of the triangular fibrocartilage from its radial attachment. Associated joint effusion.
Tenosynovitis of extensor digitorum longus and diffuse oedema of the dorsal extrinsic ligaments.”
Ms Read saw Dr Hanslow who reported on 15 August 2018. She said:
“She was taken to Wyong Hospital due to the closed head injury and noticed initial discomfort in the wrist but it was not severe. The wrist pain was possibly masked by the analgesics for her head injury. She was discharged the same day and noticed increasing pain in the right wrist over the following weekend. She was reviewed on the Monday following the incident and referred for X-ray which was normal. She has had physiotherapy with exercising, bracing and strapping. Overall she does feel the wrist is improving. Currently she experiences pain over the dorsoulnar aspect of the right wrist that radiates to the ulnar 2 digits. She experiences pain around the base of the thumb and the pain is aggravated by activities such as putting on a seatbelt or any lifting and twisting manoeuvres. She has not experienced any pins and needles and has not had cortisone injection.
On examination there is no swelling of the wrist. There is reduced range of movement in palmar and dorsiflexion of 45° with a reduced range of movement in pronation of 70° but full supination of 90°. There is tenderness over the distal radioulnar joint, TFCC and extensor carpi ulnaris. Provocative tests for the TFCC and ulnar ballottement test were negative. There was pain with loading the extensor carpi ulnaris. The hand is neurovascularly intact.”
Dr Hanslow recommended a cortisone injection into the ulnocarpal joint. She reviewed Ms Read on 7 November 2018 and said that any return to work would be guarded and limited.
Ms Read underwent another MRI scan of her right wrist on 24 September 2019 with a clinical history of ongoing pain and paraesthesia. Dr Slater observed a “moderate sized effusion in the carpal bones but no evidence of bone bruise or fracture. TFC and scapholunate ligament intact.”
In December 2019 Ms Read underwent nerve conduction studies at Dr Hanslow’s request with clinical notes “paraesthesia and pain 5th finger R hand ? ulnar neuropathy.” On 4 March 2020 Dr Hanslow noted that the studies were normal but that they may be a false negative because the history was consistent with an element of ulnar nerve dysfunction. She referred Ms Read for image guided cortisone injection to the ulnar nerve. On 7 July 2020 Dr Hanslow noted that Ms Read’s symptoms resolved three days after the injection. She referred her to physiotherapy for nerve gliding exercises to prevent recurrence.
On 11 November 2020 Ms Holmes, hand therapist, noted that Ms Read suffered symptoms which were only temporarily improved with therapy and that overall her pain was increasing. She queried if a cubital tunnel release would be beneficial. Dr Hanslow agreed in a report dated 24 November 2020 that Ms Read was a candidate for right cubital tunnel release with medial epicondylectomy. The surgery was carried out on 21 January 2021 and Ms Read underwent further hand therapy.
Dr Ghabrial only assessed Ms Read’s ulnar nerve injury and his assessment was the same as that made by the Medical Assessor in respect of the peripheral nerve injury.
Dr Powell, who saw Ms Read at the request of the Department, clearly set out the history of both aspects of the right upper limb injury in his report dated 2 August 2022. He said:
“Following the incident in May 2018 Ms Read had pain about the ulnar side of the right wrist with a feeling of numbness into the ulnar side of the hand and forearm.
She was found to have an avulsion injury about the right wrist and was placed in a splint.
Symptoms persisted and she attended physiotherapy.
Ms Read was then referred to Dr Hanslow, Orthopaedic Surgeon, who assessed her and two steroid injections were performed about the ulnar side of the hand, which provided temporary relief of symptoms.
As symptoms continued, Dr Hanslow reviewed her and felt that there had been some involvement of the ulnar nerve at the elbow and an injection was undertaken at the elbow.
There was temporary improvement of symptoms (perhaps less than she had experienced with the injections at the wrist).
In view of her continuing difficulties, Dr Hanslow suggested an operation.”
Dr Powell noted Ms Read’s current symptoms:
“Ms Read feels numb about the right elbow, particularly medially extending posteriorly, and also on the ulnar border of the right hand, which fluctuates in intensity.
The level of discomfort fluctuates depending upon use of the right hand, and the region is tender.”
Dr Powell considered that it was probable that Ms Read suffered some non-specific soft tissue subcutaneous bruising in the right wrist arising from the assault component of the incident and that she may have had some tenosynovitis of the right extensor carpi ulnaris tendon possibly following direct trauma in the incident. He considered that was no longer clinically evident. He did not consider that there was likely to have been an ulnar nerve injury though she may have sustained some bruising in the region of the cubital tunnel or a traction strain of the ulnar nerve associated with complex movements of the right upper limb during her defence.
Taking that history into account, it was appropriate for the Medical Assessor to assess the range of motion of Ms Read’s right upper limb. He found a restriction of the range of motion at the wrist which he appropriately assessed.
Because there were two separate components to the injury, paragraph 2.9 of the Guidelines does not apply. It reads:
“If an upper extremity impairment results solely from a peripheral nerve injury, the assessor should not also evaluate impairment(s) from AMA5 Section 16.4 ‘Abnormal motion’ (pp 450–79) for that upper extremity. AMA5 Section 16.5 should be used for evaluating such impairments.
For evaluating peripheral nerve lesions, use AMA5 Table 16-15 (p 492) together with AMA5 tables 16-10 and 16-11 (pp 482 and 484).”
Ms Read’s upper extremity impairment did not arise solely from a peripheral nerve injury.
For these reasons, we have determined that the MAC issued on 13 January 2023 should be confirmed.
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