Shannon v Woolworths Group Limited
[2022] NSWPICMP 504
•8 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Shannon v Woolworths Group Limited [2022] NSWPICMP 504 |
| APPELLANT: | Tania Shannon |
| RESPONDENT: | Woolworths Group Limited |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 8 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in failing to take into account the muscle wasting of both the thigh and calf of the left lower extremity and failed to provide reasons for not doing so; further, the MA erred in failing to take into account his findings in relation to plantar flexion when assessing the left lower extremity; Held – Panel found thigh wasting unrelated to ankle injury and no error in the plantar flexion assessment of the left lower extremity; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 October 2022 Tania Shannon (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 8 September 2022.
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,
· 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.
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.
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).
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 it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons which will be more fully discussed below.
EVIDENCE
Documentary evidence
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.
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 MA erred in failing to take into account the muscle wasting of both the thigh and calf of the left lower extremity and failed to provide reasons for not doing so. Further, the MA erred in failing to take into account his findings in relation to plantar flexion when assessing the left lower extremity.
In reply, the respondent submits that no errors were made.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the left lower extremity (ankle/foot), the lumbar spine (consequential condition) and the right lower extremity (knee) (consequential condition) resulting from an injury on 3 October 2018.
The MA obtained the following history:
“Ms Shannon stated that on 3.10.18 she tripped on a dolly of a bin in the deli/bakery department of the Woolworths store in North Strathfield. She did not fall to the ground but heavily took her weight on the left foot.
Ms Shannon indicated that over the subsequent hour, pain increased to the region of the left foot and ankle and that swelling arose.
Ms Shannon indicated that after approximately the first day she also developed some pain to the region of the low back which persisted.
She attended a medical practitioner at the request of the company in Burwood. She reportedly was advised that she could return to work on the subsequent day with restricted duties.
She undertook this but found that she was ‘struggling’. As a consequence, she attended her usual medical practitioner, Dr Gertrude Peries, General Practitioner of Concord.
She stated that an x-ray and diagnostic ultrasound examination were arranged. Little abnormality was noted.
She indicated that she was certified unfit for work for a few days with a return to work with medical restriction advised.
Physiotherapy was tried.
Ms Shannon was subsequently referred for MRI examination.
A subsequent referral was arranged for her to attend Dr John Negrine, Consultant Orthopaedic Surgeon of Burwood. The doctor advised that she wear a CAM boot.
The oral agents, Panadol and Nurofen were taken for pain relief.
Ms Shannon was subsequently certified unfit for work.
I have noted that on 1.8.19 she underwent arthroscopic synovectomy of the left ankle with some reported subsequent clinical benefit. This was performed by Dr Negrine at the Prince of Wales Private Hospital.
She continued to be troubled by intermittent pain to the region. She stated that she had also developed ‘pins and needles’ affecting the left thigh and calf regions. She also had a feeling of weakness to the left foot.
She found that her back complaints had worsened subsequent to the surgical intervention and she attributed this to an aggravation as a consequence of her gait.
Ms Shannon also developed aching of the right knee more to the infrapatellar region post-surgery.
Investigations were arranged in relation to the region of the lumbar spine. Nil radiological investigations, however, followed with respect to the region of the right knee.
I have noted that Ms Shannon was referred to Dr Richard Parkinson, Consultant Neurosurgeon of the St Vincent’s Clinic, Darlinghurst. It is evident that an L3/4 disc lesion was identified on MRI examination.
Ms Shannon proceeded to an L3/4 discectomy performed by Dr Parkinson on 23.6.20 at the Prince of Wales Private Hospital. She reported that this provided her with some symptomatic benefit. The sensory changes and feeling of weakness appeared to improve following that intervention.”
After setting out details of Ms Shannon’s present treatment, symptoms, general health, work history social activities and activities of daily living, the MA then set out his findings on physical examination as follows:
“Ms Shannon was a cooperative woman in nil apparent physical distress while at rest…
General inspection of the trunk demonstrated some exaggeration of the lumbar curve. A midline longitudinal surgical scar was noted to overlie the lumbar spine of approximately 2cm. There were mild pigmentary changes. There was nil loss of contour.
Active truncal range of motion was examined with a mild global symmetric limitation being noted. Anterior sagittal rotation (forward flexion) was such that Ms Shannon could reach to the level of the lower tibial thirds with her fingertips while standing.
Tenderness was reported with palpation overlying the mid to low posterior lumbar spinous processes. There was nil muscular spasm or guarding with palpation of the paralumbar musculature.
Ms Shannon exhibited a slow symmetric gait when observed walking within the confines of my office. She was able to undertake a near full squatting manoeuvre. She was noted to undertake submaximal cautious lunging manoeuvres.
Active straight leg raising was to approximately 60° right side and 50° left side with some low back discomfort reported with the examination.
Girth measurements within the lower limbs were approximately as follows: 52cm (right thigh); 50cm (left thigh); 40cm (right calf); 38.5cm (left calf).
Active range of motion was assessed at both knees with use of a goniometer…
Nil crepitus was evident with testing passive range of motion. I also did not identify any mechanical instability.
Nil localised areas of tenderness were identified upon palpation of both knees.
Active range of motion was assessed at both ankles/hindfeet in a similar manner…
Nil swelling was evident pertaining to either ankle/foot. Mild tenderness was reported with palpation to the region of the lateral malleolus at the left ankle.
Difficulty arose with discerning scarring pertaining to the arthroscopic procedure of the left ankle.
Motor and sensory systems examination were essentially non-contributory within the lower limbs.
The Babinski responses were normal with both toes downgoing.”
The MA then referred to the radiological material he had, adding: “I am generally in agreement with the Radiologists’ reports.”
He summarised the injuries and diagnoses as follows:
“It is evident that Ms Shannon sustained trauma of the left ankle joint which required arthroscopic surgical treatment. She reports persisting complaints to this region.
Radiological investigation had also demonstrated a left-sided L3/4 disc protrusion with subsequent discectomy having been performed at this level.
It would be apparent that Ms Shannon also has had complaints referable to the right knee. Nil radiological investigations have been attended. It is probable that these complaints have been as a consequence of aggravation of degenerative changes/osteoarthritis at the joint.”
The MA assessed a total of 14% WPI.
He explained his calculations as follows:
“With respect to the region of the left foot/ankle, a potential lower extremity impairment of 2% has been determined taking into account limitation with active range of motion of the hindfoot. A similar finding has been noted of the contralateral non-affected side. Where this is the case, the relevant guides indicate that such a finding should be deducted from the region in question. As such, a 0% lower extremity impairment is applicable pertaining to this region.
Muscular wasting has been observed in relation to the left thigh and left calf. I consider that this finding pertaining to the left calf may be attributed to the left ankle injury. Based upon reference to AMA 5 (Chapter 17, 17.2d, Table 17-6, pg 530), this equates with a mild degree of unilateral muscular atrophy. When also taking into account the Workers Compensation Guidelines, this results in a 6% lower extremity impairment.
I do not consider that any other methodologies are applicable in relation to the left lower extremity.
It has been noted that a previous injury had been the case in relation to the left ankle with subsequent intermittent complaints. On this basis, I consider that a one-tenth deduction is applicable
When the 6% lower extremity impairment is converted to a whole person impairment, this equates with a 2% WPI. After a one-tenth deduction and rounding, a 2% WPI is accrued.
With respect to the region of the lumbar spine, decompressive surgery has been performed which equates with a DRE Category III rating, ie 10-13%. It is considered that a 2% weighting is applicable taking into account negative impacts upon activities of daily living. Nil modifiers are applicable with respect to surgery. There are nil findings of neurological dysfunction/radiculopathy. As such, a 12% WPI has been determined in relation to the region of the lumbar spine.
When the whole person impairments of 2%, 0% and 12% are combined, a final whole person impairment of 14% is determined.”
The MA then turned to consider the other medical opinions stating:
“I have noted the medical report (3.11.21) prepared by Dr Peter Giblin, Consultant Orthopaedic Surgeon of Sydney. Dr Giblin had also found a 12% whole person impairment with respect to the lumbar spine. Similarly, a 0% whole person impairment has been documented in relation to the right knee. Dr Giblin had indicated a 6% whole person impairment in relation to the left lower extremity taking into account wasting both of the thigh and calf. In this regard, I have indicated that it is my opinion that muscular atrophy of the left calf may be attributable to left ankle injury. I consider that this is not likely pertaining to the finding of the left thigh.
I have also reviewed the medical report (10.3.22) prepared by Dr Timothy Siu, Consultant Neurosurgeon of Sydney. The doctor had confined his opinion in relation to a determination of impairment to the region of the lumbar spine outlining an 11% WPI in this regard.
I have also reviewed further medical documentation prepared by the various treating practitioners. I have also reviewed relevant hospital and other administrative documentation.”
The appellant makes the following submissions:
(a) The MA failed to take into account the muscle wasting of both the thigh and calf of the left lower extremity.
(b) The MA notes he observed muscular wasting to the left thigh and left calf.
(c) He fails to provide any explanation to support his findings and opinion as to why he has chosen NOT to include the muscular wasting to the left thigh in the assessment.
(d) The wasting observed is consistent with the measurements of wasting of the thigh muscle of the left lower extremity noted in the assessment of Dr Peter Giblin in his report dated 3 November 2021.
(e) The method used by Dr Giblin which takes into account both areas of muscle wasting, being in the calf and thigh should be incorporated, as per Dr Giblin’s assessment of the left lower extremity as follows: “In terms of the examination of her left lower extremity, I have utilised the measurement of the muscle wasting to attract a total of 6% WPI.”
(f) Whilst we note the comments of the MA in relation to the similar findings on contralateral non-affected side, there is evidence that there is a reduction in the active range of motion in the Plantar Flexion of 20 degrees, which according to the Guidelines, AMA5 Table 17- 11 Ankle motion impairment estimates note:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline, and is subtracted from the calculated impairment for the involved joint.”
The rational for this decision should be explained in the assessors’ report (AMA 5 Section 16.4c, Page 454).
(g) The MA fails to account for the 20* degrees of active range of movement loss in respect of the Plantar Flexion which he found on examination and which on our interpretation would result in an additional three (3) percent (%) assessable for the impairment of the lower extremity.
The appellant makes no challenge to the MA’s assessment other than in respect of the left lower extremity.
Dealing firstly with the issue of wasting, the appellant refers to the report of Dr Giblin (orthopaedic surgeon) of 3 November 2021 who noted 2cm of thigh wasting, which would equate with 11% lower extremity impairment, and 1cm of calf wasting, which would equate with 6% lower extremity impairment in accordance with the Guidelines, 4th Edition, page 14, Table 17-6.
This would give a combined total of 16% lower extremity impairment which would equate with 6% WPI. The appellant suggests that this figure for wasting should have been used rather than the figure suggested by the MA, who although finding similar amounts of wasting, only included the wasting of the calf in his final assessment. He excluded the wasting of the thigh.
Importantly in this regard the MA has noted under the heading “an explanation of my calculations”: “Muscular wasting has been observed in relation to the left thigh and left calf. I consider that this finding pertaining to the left calf may be attributed to the left ankle injury.”
In addition, when commenting on the opinion of Dr Giblin, he clearly said:
“In this regard, I have indicated that it is my opinion that muscular atrophy of the left calf may be attributable to the left ankle. I consider that this is not likely pertaining to the finding of the left thigh”.
Ankle injuries which are significant will lead in general to calf wasting and not really to thigh wasting. Thigh wasting is caused by back, hip or knee pathology. In this particular case there was a minimal problem with the left ankle, as noted by the MA (2% WPI) with a full range of movement, and he has certainly accepted that the wasting of the calf could be related to the ankle injury, but not the wasting of the thigh. The thigh wasting is most likely due to the spinal pathology at the L2/3 level.
As regards the issue of range of movement the MA found a reduction of 20 degrees in plantar flexion between the right and left lower limbs. He has found equivalent ranges of movement for both ankle and hindfoot movements on the left and right side, with the only difference being the plantar flexion on the left measuring 30° compared to 50° on the right.
The appellant refers to Table 17-11 on page 537 of the Guidelines, and submits that when the reduction of 20 degrees is referenced to this table, there is a 3% WPI.
That is not correct.
It is noted that 30° of plantar flexion does not rate any impairment. All other figures are equal on both sides, and therefore do not rate impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 September 2022 should be confirmed.
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