Shamoun v Hungry Jacks Pty Ltd
[2022] NSWPICMP 12
•19 January 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Shamoun v Hungry Jacks Pty Ltd [2022] NSWPICMP 12 |
| APPELLANT: | Wisam Shamoun |
| RESPONDENT: | Hungry Jacks Pty Ltd |
| APPEAL PANEL: | William Dalley Dr Mark Burns Dr Brian Noll |
| DATE OF DECISION: | 19 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Allegation of error by way of failure to provide adequate reasons for assessment of DRE cervical category I; Held- the medical assessor had not recorded sufficient information to permit understanding of assessment in DRE category I rather than DRE category II; upon re-examination, Panel satisfied assessment as DRE II was appropriate; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 July 2021 Wisam Shamoun (the appellant) 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 2 June 2021.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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 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 section 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 Shamoun was employed as an Assistant Manager by the respondent, Hungry Jacks Pty Ltd. On 8 January 2016 he suffered a fall in the course of his employment with injuries to his cervical spine, lumbar spine and right shoulder.
Mr Shamoun was assessed by an orthopaedic surgeon, Dr John Watson, at the request of the workers compensation insurer on 22 June 2016. Dr Watson diagnosed “minor soft tissue injury to the right shoulder girdle, soft tissue injury musculoligamentous injury cervical spine and lumbar spine”.
Mr Shamoun continued to suffer pain and restriction of movement as result of his injuries. On 10 March 2020 Mr Shamoun was reviewed by Dr James Bodel, orthopaedic surgeon, for assessment of impairment the purposes of a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987. Dr Bodel assessed Mr Shamoun as having 18% whole person impairment (WPI) as a result of the subject injury.
Mr Shamoun’s solicitors made a claim for lump-sum compensation in accordance with the assessment of Dr Bodel. The insurer had Mr Shamoun examined by an orthopaedic surgeon, Dr Anthony Smith who assessed Mr Shamoun as having no impairment as result of the subject injury.
Mr Shamoun’s legal representatives filed an Application to Resolve a Dispute in the Commission which included a claim for lump-sum compensation in accordance with Dr Bodel’s assessment. The medical dispute concerning impairment was referred, by consent, to the President for referral to a Medical Assessor to assess permanent impairment as result of injury to the cervical spine, lumbar spine and right upper extremity (right shoulder).
The Medical Assessor examined Mr Shamoun on 26 May 2021. The Medical Assessor assessed Mr Shamoun as having 7% WPI in respect of the lumbar spine, 8% WPI in respect of the right upper extremity (shoulder) and 0% WPI in respect of the cervical spine.
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 the worker should undergo a further medical examination. The Panel is satisfied that demonstrable error has been established and there was insufficient information available to enable the Panel to reassess the appellant.
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.
Further medical examination
Dr Mark Burns of the Appeal Panel conducted an examination of the worker on 22 November 2021 and reported to the Appeal Panel:
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter No: M1- W759/21
Appellant: Wisam Shamoun
Respondent: Hungry Jacks Pty Ltd
Date of determination: 2 June 2021
Examination Conducted By: Dr Mark Burns
Date of Examination: 22 November 2021
1. The workers medical history, where it differs from previous records
Mr Shamoun attended unaccompanied and the history obtained from Dr Drew Dixon, Medical Assessor in his previous Medical Assessment Certificate was read and discussed with Mr Shamoun. He agreed that the history taken by Dr Dixon was correct.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Shamoun reported that due to a mixture of the lockdown for Covid-19 and the fact that he has a significant psychological medical condition that he has hardly gone out of his home since 2 June 2021. He currently lives with his sister who looks after him.
Current symptoms:
Mr Shamoun reports that he continues to have significant pain and discomfort in the midline and to the right of his cervical spine. The pain comes and goes and is much worse at night. He has pain radiating down into his right arm, which goes down the outside of the arm and into the right thumb. There is occasional numbness in the thumb. The pain occurs once or twice each day and may last for several minutes up to several hours.
Current treatment
He continues to attend the Merrylands Medical Centre and is given prescriptions for Voltaren. He takes Voltaren on an as needs basis and for analgesia he uses Panadol daily and occasional Panadeine.
Mr Shamoun was very emotional throughout the consultation and as his lumbar spine and right upper extremity findings had not been appealed, I limited my consultation to only the cervical spine, which had been appealed.
3. Findings on clinical examination
Mr Shamoun was 180cms tall and weighed 107kgs. He was noted to walk with a shuffling gait and avoided eye contact throughout the entire consultation.
Cervical spine
Examination of his cervical spine revealed significant tenderness in the midline and towards the right trapezius. Muscle guarding was noted in the right trapezius and paravertebral muscles. He had great difficulty in relaxing during the examination. Flexion in the cervical spine was 75% of predicted and extension only 25% of predicted. Rotation to the left and right was one third predicted and symmetrical. Lateral tilt to the left and right was one third predicted and symmetrical.
Neurological examination of both upper limbs revealed normal power, tone, and reflexes. Sensation was reported as being slightly decreased over the radial side of the forearm into the right thumb. This was in the C6 distribution. It was normal in all the other fingers in the right hand.
Testing for carpal tunnel syndrome on the right side revealed negative Tinel’s sign and Phalen’s test. There was also no wasting of the thenar eminence.
The circumference of the right upper arm was 33cms compared to 32.5cms on the left. The circumference of both forearms was 30cms.
An incidental finding at the top of the cervical spine in the midline was a large mass, which he stated was a cyst, which had been present for the last 10 years.
4. Results of any additional investigations since the original Medical Assessment Certificate
He stated that no further investigations had been carried out.”
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. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the reason for the Medical Assessor’s conclusion that Mr Shamoun had 0% WPI in respect of the cervical spine did not appear to follow from the limited findings on examination recorded by the Medical Assessor.
In reply, the respondent submits that the Medical Assessor was entitled to exercise his clinical judgement and recorded sufficient history and findings on examination to warrant clinical assessment as falling within DRE I so as to warrant an assessment of 0% WPI.
FINDINGS AND REASONS
The procedures on appeal are contained in section 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 appeal is limited to the assessment of the cervical spine and the following observations are confined to that body part. The Medical Assessor recorded a history of ongoing pain and stiffness in the neck which Mr Shamoun treated by the application of ice. The Medical Assessor noted complaint of pain “radiating from his neck down to his right hand, mainly to the right thumb, index, middle and ring fingers.”.
The Medical Assessor recorded his findings on examination:
“There was stiffness of the cervical spine with flexion and extension decreased by one third lateral rotation decreased by one half bilaterally and lateral flexion decreased by one third bilaterally. There was tenderness of the right trapezius muscles. The cervical foraminal compression test was positive, his brachial plexus stretch test was equivocal. His supraclavicular brachial plexus was non-tender. There was tenderness of the lower cervical spinous process. There was no neurological deficit of either upper limb nor wasting.”.
The Medical Assessor noted reports of the findings on radiological examination in March 2016 and November 2019. The latter report was said to show:
“minimal disc bulges at C2/3 and C3/4 and C/5. There was minimal indentation at the anterior theca. At C5/6 there was minimal osteochondral bar with mild right-sided facet OA with mild right foraminal narrowing and minimal osteochondral bar at C6/7. Note was made of a cystic lesion in the midline posterior early, thought to be a sebaceous cyst.”
In respect of the cervical spine the Medical Assessor diagnosed “neck strain injury with post-traumatic stiffness with shoulder brachalgia with right trapezial pain and mild spondylotic changes, and a right sided facet joint OA at C5/6 on CT scan.”
In assessing the cervical spine the Medical Assessor reported: “That for the cervical spine where he has post-traumatic stiffness is from Table 15-5, AMA5, DRE I, 0% whole person impairment”. The Medical Assessor reported that he had taken into account “a neck strain injury with post-traumatic stiffness” in making that assessment.
The Medical Assessor reviewed the reports of Dr Bodel noting relevantly that Dr Bodel had found DRE Category II for the cervical spine “which I did not find today”. The Medical Assessor noted that Mr Shamoun’s general practitioner, Dr Laughlin, had concurred with Dr Bodel regarding ongoing symptoms. He noted the respective opinions of Dr Watson and Dr Smith, commenting that, upon examination, it appeared that symptoms were continuing and had not resolved.
In their respective submissions both parties referred to the criteria contained in Table 15-5 of AMA 5[2] respect of the assessment of DRE Cervical Category I and DRE Cervical Category II.
[2] Page 392
The relevant criteria are as follows.
DRE Cervical Category I
0% Impairment of the Whole PersonDRE Cervical Category II
5% – 8% Impairment of the Whole PersonNo significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures.
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 non-verifiable 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 disc at the level and on the side expected from objective clinical findings with radiculopathy or with improvement of radiculopathy following surgery
or
fractures [balance not reproduced as not applicable]
In his submissions the appellant notes that the Guidelines relevantly provide:
“Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present.”[3]
[3] Paragraph 4.18, Page 25.
The appellant noted that the Medical Assessor had made a diagnosis of a neck strain with post-traumatic stiffness but had not explained why this did not satisfy the criteria for DRE Cervical Category II. The appellant noted that the Medical Assessor had not recorded findings as to “the presence or absence of spasm, muscle guarding, motion, non-verifiable radicular complaints or localised tenderness.” The appellant submitted that the report did not disclose the reasoning as to why Mr Shamoun’s condition to be classified as DRE Cervical Category I rather than DRE Cervical Category II.
The Panel does not accept that the Medical Assessor failed to record findings with respect to motion or non-verifiable radicular complaints. The Medical Assessor recorded decreased lateral rotation, extension and flexion, noting that the restrictions were “bilateral” and hence addressing the criteria of “asymmetric loss of range of motion”, finding that the range of motion was symmetrical. The Medical Assessor also considered the criterion, “non-verifiable radicular complaints”, noting “there was no neurological deficit of either upper limb nor wasting.”.
However, the Panel accepts that the Medical Assessor has not recorded any finding as to the presence or “absence of muscle guarding or spasm”. The presence or absence of muscle guarding or spasm can form the basis of assessment within DRE Cervical Category I or DRE Cervical Category II. The absence of any record as to findings with regard to muscle guarding or spasm form an essential part of the assessment of the worker and the Panel is satisfied that the absence of that information does not permit an understanding of how the Medical Assessor assessed Mr Shamoun as falling within DRE Cervical Category I.
The Panel has considered the submissions of the respondent but does not accept that it follows that because the Medical Assessor has assigned DRE Cervical Category I, it follows that the Medical Assessor must have observed no muscle guarding or spasm. The Panel considers that, to argue the existence of evidence from the conclusion, is not an appropriate method for the provision of adequate reasons in accordance with Wingfoot.
The Panel accepts that failure to provide adequate reasons sufficient to enable a court (or an appeal panel) to determine whether there is an error constitutes demonstrable error[4] and this ground of appeal is made out.
[4] Wingfoot Australian Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 (Wingfoot) and see El Masri v Woolworths Ltd [2014] NSWSC 1344 per Campbell J at [50].
Accordingly, it is necessary for the Panel to review the evidence to determine whether it is appropriate in the circumstances to revoke the MAC and issue a further certificate.
The parties have raised no objection and no submissions have been made in respect of the assessment of the lumbar spine and the right upper extremity (shoulder). The Panel
accepts that the Medical Assessor has appropriately assessed those body parts and that Mr Shamoun should be assessed as having 7% WPI in respect of the lumbar spine and 8% WPI in respect of the right upper extremity (shoulder).The Panel has considered the observations of Dr Burns, a Medical Assessor member of the Panel upon re-examination. Dr Burns relevantly observed asymmetrical range of motion in flexion and extension, the presence of muscle guarding in the right trapezius and paravertebral muscles. Dr Burns also noted normal power, tone and reflexes with slightly decreased sensation over the radial side of the forearm into the right thumb in the C6 distribution.
The Panel accepts that the conclusions that followed from those findings is that there was a finding of asymmetrical motion and there was muscle guarding and non-verifiable radicular symptoms which would warrant placing Mr Shamoun within DRE Cervical Category II and hence appropriately assessed at 5% WPI. Interference with activities of daily living was appropriately addressed by the Medical Assessor in respect of the lumbar spine and no further assessment in this regard is required in respect of the cervical spine[5]
[5] Guidelines, Chapter 4.36 at Page 28
There is no basis on the evidence for any deduction for any pre-existing condition or abnormality nor any previous injury which contributes to the overall level of impairment assessed and hence no deduction is to be made pursuant to section 323 of the 1998 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 June 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Drew Dixon and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Lumbar spine | 8/01/2016 | Table 4.1 | Table 15-3 | 7% | Nil | 7% |
| 2. Right upper extremity (shoulder) | 8/01/2016 | Par 2.5 | Pie charts 16-40, 16-43 and 16-46 | 8% | Nil | 8% |
| 3. Cervical spine | 8/01/2016 | Table 4.1 | Table 15-5 | 5% | Nil | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 18% | |||||
Mr William Dalley
Member
Dr Mark Burns
Medical Assessor
Dr Brian Noll
Medical Assessor
19 January 2022
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