Sharma v Australian Pharmaceutical Industries Ltd
[2024] NSWPICMP 119
•5 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sharma v Australian Pharmaceutical Industries Ltd [2024] NSWPICMP 119 |
| APPELLANT: | Shivani Sharma |
| RESPONDENT: | Australian Pharmaceutical Industries Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 5 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by concluding appellant’s presentation at examination was inconsistent; whether MA erred or applied incorrect criteria by assessing appellant’s impairment of her upper extremities by reference to impingement; Appeal Panel held MA made no error and made his assessment based on correct criteria; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 October 2023, Shivani Sharma, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Christopher Oates, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 September 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):
· 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 for 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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment as a store person with Australian Pharmaceutical Industries Pty Ltd, the respondent, in December 2020. She claimed she suffered a work injury to her left hip, cervical spine, lumbar spine, left shoulder, left elbow, left wrist and left hand and developed, as a consequence of those injuries, a psychological condition and a gastrointestinal condition.
On 20 February 2023 the appellant’s solicitors sent by email a letter to the respondent’s insurer advising it that the appellant claimed compensation in the sum of $81,937.70 under s 66 of the Workers’ Compensation Act of 1987 (the 1987 Act) for permanent impairment she said resulted from her injury. The appellant’s solicitors attached with their correspondence reports from orthopaedic surgeon Dr James Bodel dated 19 May 2022 and 10 October 2022 and from general and gastrointestinal surgeon Dr Anthony Greenberg dated 7 February 2023 to support of the appellant’s claim.
Dr Bodel had examined the appellant on 19 May 2022 at the request of appellant’s solicitors and in his report of that date provided his opinion on various aspects of the injury the appellant claimed to have suffered. This included his findings of the appellant’s range of movement of her shoulders that he made from his examination of the appellant. In his report of 10 October 2022 he advised that he assessed the appellant’s degree of permanent impairment from her claimed injury was 28% whole person impairment (WPI). His assessment did not include any component relating to the appellant’s gastrointestinal system.
Dr Greenberg examined the appellant, also at the request of the appellant’s solicitors, on 11 November 2022 and in his report of 7 February 2023 he advised that “on the balance of probabilities” the gastrointestinal symptoms that the appellant had described to him were a consequence of her orthopaedic injuries. He advised he had assessed the appellant at 3% WPI relating to the lower gastrointestinal tract.
On 8 June 2023 the insurer wrote to the appellant notifying her under s 78 of the 1998 Act that it disputed her claim for compensation for permanent impairment. It advised her that it accepted that she had an injury to her left hip but disputed she had an injury to her cervical spine, lumbar spine, left shoulder, left elbow, left wrist, left hand, right shoulder, left knee and right hip and that she had a consequential gastrointestinal condition. It reminded the appellant that it had arranged for her to be examined by Dr John Bosanquet, who the Appeal Panel notes is an orthopaedic surgeon and who provided a report dated 4 May 2023 in which he advised he assessed the appellant had 3% WPI relating to a left trochanteric bursitis. It reminded her that Dr Truskett, who the Appeal Panel notes is a surgeon and who had also examined the appellant, had advised in a report dated 17 April 2023 that he assessed she had 0% WPI relating to her gastrointestinal tract. It advised her that because her permanent impairment did not exceed 10% she was not entitled to compensation for permanent impairment under s 66 (1) of the 1987 Act.
The appellant then commenced proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation for permanent impairment. She also sought determination of other claims she had made for weekly payments of compensation and compensation for her costs in obtaining medical treatment.
The matter came before a Member of the Commission, namely Mr John Wynyard, who with consent of the parties made the following determination:
“1. I amend the ARD to plead injury in accordance with the applicant’s amended injury details dated 10 August 2023.
2. There will be an award in favour of the respondent in respect of the claim pursuant to s 66 regarding the lumbar spine.
3. There will be an award in favour of the respondent in respect of the claim for the left lower extremity (hip) pursuant to s 66.
4. There will be an award for the respondent in respect of the claim of injury for the left wrist, left elbow, left hand and the digestive tract.
5. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases:
(a) Date of injury: 7 November 2019 (deemed)
(b) Matters for assessment: Left upper extremity (shoulder)
Right upper extremity (shoulder)
Cervical Spine
(c) Evidence: ARD and attached documents
Reply and attached documents
6. The balance of the ARD is otherwise discontinued and I dispense with the necessity for the applicant to lodge a Notice of Discontinuance.”
The applicant’s amended injury details dated 10 August 2023, to which Member Wynyard made reference in his first determination, were in these terms:
“Injury Details – 21/03/2018
Type of Injury: Disease
Date of Injury: 21/03/2018 (deemed)
Date of Compensation Claim: 21 March 2018
Place of Injury: Employer's Premises
Injury Description / Cause of Injury and Death:
Disease injury to the left hip by way of contusion and mild greater trochanteric bursitis;
musculoligamentous injury to the lumbar spine and aggravation of degenerative disc disease;
On 21 March 2018, whilst working as a store person in the employment of the respondent, the applicant experienced intense pain in her left hip and lower back due to the nature of her employment involving constant and repetitive walking, bending, pushing, lifting, and packing.
Injury Details – 07/11/2019
Type of Injury: Disease
Date of Injury: 7 November 2019 (deemed)
Date of Compensation Claim: 7 November 2019
Place of Injury: Employer's Premises
Injury Description / Cause of Injury and Death:
Musculoligamentous injuries and aggravation of a disease process to the bilateral shoulders; cervical spine; left knee; left elbow; left wrist and left hand. Secondary gastrointestinal injury due to excessive medication intake and secondary psychological injury.
Upon the applicant's return to suitable duties following the abovementioned injury, she was directed to work in the A Frame Section and she sustained injury to her bilateral shoulders; neck; left knee; left elbow; left wrist and hand with a deemed date of injury 7 November 2019, as a result of the nature of the duties she was required to perform.
The applicant further developed a secondary psychological injury and secondary gastrointestinal injuries as a result of her excessive medication intake to treat her work injuries.
We refer you to the applicant's various statements for further details.”
On 20 September 2023, consistent with the fifth determination Member Wynyard made, a delegate of the President of Commission issued a referral to the Medical Assessor to assess various medical disputes relating to the appellant’s injury deemed to have occurred 7 November 2019, including the degree of her permanent impairment relating from her injury. The referral specified that the body parts to be assessed were cervical spine, left upper extremity (shoulder), and right upper extremity (shoulder).
As mentioned at the outset, the Medical Assessor issued the MAC in response to that referral on 20 September 2023, in which he certified the degree of the appellant’s permanent impairment from the injury deemed to have occurred on 7 November 2019 was 11% WPI, comprising 2% WPI relating to that left upper extremity (shoulder), 2% WPI relating to the right upper extremity (shoulder) and 7% WPI relating to her 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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that the MAC did not contain a demonstrable error. Consequently, the Appeal Panel is unable nor needs to examine the appellant.
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 appellant has raised no issue with respect to the Medical Assessor’s assessment of her permanent impairment relating to her cervical spine. She challenges the Medical Assessor’s assessment of her permanent impairment relating to her left and right upper extremities.
The Medical Assessor recorded in the MAC that the appellant’s present symptoms included pain in her neck which radiates to her left scapula and the apex of her shoulder and down her left arm, with numbness in the middle finger of the left hand. The Medical Assessor noted that the appellant reported this pain as worse at night. The Medical Assessor noted that the appellant also has pain radiating to her right scapula and the apex of her right shoulder. The Medical Assessor recorded that the appellant finds it difficult to move her head up and down because of stiffness and experiences difficulties turning her head. The Medical Assessor noted that the appellant reported experiencing difficulty in lifting either arm because of severe pain.
The Medical Assessor made brief notes in the MAC regarding the radiological investigation the appellant had undergone. These included an X-ray of her left shoulder and elbow done on 14 November 2019 which the Medical Assessor said was normal. They also included an MRI of the appellant’s left shoulder done 10 January 2020 which the Medical Assessor said revealed bursitis and rotator tendonitis. The investigations also included an ultrasound of her right shoulder done on 17 February 2020 which the Medical Assessor said revealed supraspinatus tendonitis and bursitis.
With respect to his examination of the appellant, the Medical Assessor recorded that the appellant’s husband assisted the appellant to remove and then replace her sweater whilst the appellant kept her arms by her side. The Medical Assessor noted that the appellant demonstrated pain behaviour and was breathing heavily and whimpering at times and had a look of apprehension when she first entered the examination room and that look remained. The Medical Assessor noted that the appellant did not use her arms to position herself on the couch.
The Medical Assessor’s findings from his examination of the appellant included the following:
“Power in the upper limbs was intact, however self-limited by a complaint of pain in the neck and shoulder girdles causing wavering during testing.
There was global tenderness about the shoulders bilaterally, over the posterior, lateral, superior and anterior aspects. There was no focal tenderness. All active range of movement was severely restricted and any attempt to gently test passive range of movement was strongly resisted. The power of the upper arms demonstrated during this was far greater than the power demonstrated during formal testing of strength.
Flexion; right equals left equals 30°. Extension; right equals left equals 20°. Abduction; right equals left equal 10°. Adduction; right equals left equals 0°. External rotation; right equals left equals 5° with complaint of neck and shoulder girdle pain. Internal rotation; right equals left equals 5°. Rotation was measured with the elbows at her sides, rather than in 90° of abduction.
Active range of movement was measured with a goniometer.”
The Medical Assessor diagnosed the appellant had suffered a soft tissue injury to her right shoulder and left shoulder “with elements of supraspinatus tendonitis and bursitis in the shoulders”.
The Medical Assessor expressed his view that the appellant’s presentation at examination was inconsistent. He provided the following comments relating to that:
“There was significant fear avoidance behaviour with self-limiting of active range of movement and strong resistance against any attempt at checking gentle passive range of movement to see if there was a physical or mechanical block to movement of the shoulders, as could occur with adhesive capsulitis, a possible cause of multi-directional shoulder movement restriction.
I asked Ms Sharma about Dr Bodel’s results regarding shoulder range of movement, where in May 2022 she was able to demonstrate 90° of bilateral flexion and abduction, and 60° of bilateral internal and external rotation, far greater in range than that demonstrated today. She replied that her pain has got worse since that time and this further limits her ability to move her arms.
I asked her why she could turn her head further when speaking to her husband, who was to her right whilst she was sitting during interview, compared with the minimal rotation of the head demonstrated during formal testing, but she gave no reply.”
The Medical Assessor said that he could not use the range of movement method to assess the appellant’s permanent impairment relating to her upper extremities. He explained this was because the appellant’s “active movement is markedly affected by pain and active range of movement cannot be properly checked by performing gentle passive range of movement because of strong resistance by the claimant”. He referred to paragraphs 1.12, 1.36 and 2.5 of the Guidelines.
The Medical Assessor explained that he assessed the appellant’s impairment with respect to her upper extremities based on her having impingement of shoulders. The Medical Assessor explained that the pathology that was revealed by the imaging of the appellant’s shoulders would be expected to cause impingement on appropriate provocative testing. He noted that provocative testing could not be performed on the appellant. The Appeal Panel notes that the Medical Assessor would have been unable to do provocative testing because of the limited flexion the appellant exhibited of her shoulders at the examination and because of the pain behaviours she was exhibiting.
The Medical Assessor noted that the appellant’s symptoms relating to her shoulders had been present for more than 12 months.
The Medical Assessor explained that given the objective extent of the pathology the appellant had (which the Appeal Panel observes is that which the radiological investigations revealed) and were the appellant’s clinical presentation not affected by her pain behaviours, then an impairment by reference to impingement could be made based on the pathology present. The Medical Assessor, for those reasons, assessed the appellant’s impairment for each shoulder as 3% upper extremity impairment which converts to 2% WPI.
The Medical Assessor noted that Dr Bodel assessed the appellant’s impairment relating to her left shoulder was 10% WPI and that in his initial report Dr Bodel had not assessed any impairment for the appellant’s right shoulder. The Appeal Panel notes that Dr Bodel’s assessment of the appellant’s impairment of her left shoulder was based on the restricted range of shoulder movement he found the appellant had from his examination of her which occurred on 19 May 2022. The Medical Assessor remarked that he had found:
“…marked reduction in active range of movement of both shoulders in my examination today compared with that found by Dr Bodel, indicating that the results were not consistent over time and therefore range of movement cannot be used as a valid method for assessing permanent impairment”.
The Medical Assessor also remarked that Dr Bodel conducted his examination of the appellant three years after the deemed dated of the appellant’s injury, and the Medical Assessor considered the appellant’s injury should have reached a state of stability by the date upon which Dr Bodel examined her.
The Medical Assessor noted that Dr Bodel also subsequently in a report of 10 October 2022 advised that he had assessed the appellant at 10% WPI for her right shoulder using the same range of movement findings.
The Medical Assessor observed that Dr Bosanquet advised in his report of 26 July 2022 that he found the appellant had resisted all shoulder movements and was unable to assess her range of movement because of “prominent fear avoidance behaviour”. The Medical Assessor also noted that Dr Bosanquet in a subsequent report of 4 May 2023 explained that he found the appellant had very limited shoulder range of movement and that he was unable to do a satisfactory examination of the effective range of the appellant’s movement due to the appellant's resistance and so did not assess her permanent impairment relating to her shoulders.
The Medical Assessor made the following comment:
“To assist the parties to this dispute, I did make an assessment of permanent impairment of the shoulders based on the pathology present, rather than range of movement, rather than making no assessment at all. The assessment method I used was based on the principles outlined and quoted above from SIRA Guidelines 4th Ed.”
The Appeal Panel notes that the Medical Assessor’s reference to the “principles outlined” is a reference to paragraphs 1.12, 1.36, 2.5 and 2.16 of the Guidelines.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the basis of the Medical Assessor’s conclusion that her presentation relating to her upper extremities was inconsistent was a difference between his findings and the findings of Dr Bodel from Dr Bodel’s examination in May 2022. The appellant submitted that the Medical Assessor was, in accordance with paragraph 1.6 of the Guidelines, required to base his assessment on how she presented at the time of assessment. The appellant submitted that Dr Bodel’s prior examination of her could not consequently be used by the Medical Assessor to establish whether there was any inconsistency in her presentation.
The appellant submitted that because the Medical Assessor found she had a significant limitation of the range of movement of her shoulders, paragraph 2.16 of the Guidelines operated to prevent the Medical Assessor using impingement as the basis upon which to assess her permanent impairment relating to her shoulders.
In reply, the respondent submitted that the Medical Assessor correctly applied paragraphs 1.36 and 2.5 of the Guidelines to find inconsistency in the appellant’s presentation on examination. The respondent submitted that the Medical Assessor, consistent with the Guidelines, was correct to adopt a different method than the range of movement method to assess the appellant’s permanent impairment relating to her upper extremities.
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.
In the Appeal Panel’s view the Medical Assessor was correct to find the appellant’s presentation at examination was inconsistent. There are several reasons for this.
To begin with, the Medical Assessor found at examination that the appellant demonstrated pain behaviour and breathed heavily and whimpered at times. Secondly, he found the appellant had intact power in her upper limbs which she self-limited because of complaints of pain in her neck and shoulder that caused wavering. Thirdly, the appellant complained of global tenderness over her shoulders bilaterally, including over the posterior, lateral, superior and interior aspects, but demonstrated no focal tenderness. Fourthly, the appellant demonstrated greater power of her upper limbs during passive range of movement than the power she demonstrated during active range of movement. Fifthly, the appellant strongly resisted passive range of movement and her active range of movement was severely restricted. Sixthly, the appellant was observed by the Medical Assessor to be able to turn her head when speaking to her husband but exhibited minimal rotation of her head during formal testing. Lastly, the range of movement that Dr Bodel found the appellant had of her shoulders when he examined her on 19 May 2022, at a time when the appellant’s injury ought have reached stability, was far greater than what she demonstrated the examination the Medical Assessor conducted.
The Medical Assessor’s conclusion that the appellant’s presentation was inconsistent was not based solely on the discrepancy between the movements that Dr Bodel found the appellant had of her shoulders during his examination and the movement the Medical Assessor found during examination. That was one of the factors amongst many that the Medical Assessor weighed to conclude that the appellant’s presentation was inconsistent.
In the Appeal Panel’s view it was appropriate that the Medical Assessor take account of the discrepancy between what he found relating to the appellant’s shoulder movements and that which Dr Bodel found. It was relevant because it was unlikely, given the nature of the appellant’s pathology in her shoulders, as revealed by the radiological investigations, that there would have been such a deterioration in her range of movement over the 15 months between the two examinations. But even if that factor were disregarded, the Medical Assessor ought to have still concluded that the appellant’s presentation at examination was inconsistent for all the other factors that the Appeal Panel has identified.
The Appeal Panel considers that the Medical Assessor correctly exercised his clinical judgement not to use the appellant’s range of movement of her shoulders to assess her permanent impairment relating to her upper extremities. This is because the range of movement she exhibited was, as the Medical Assessor explained, markedly affected by pain and passive range of movement was strongly resisted by the appellant. The Appeal Panel considers the range of her movements exhibited during the Medical Assessor’s examination was nonsensical.
Given that the Medical Assessor could not use, and was correct not to use the appellant’s range of movement of her shoulders to assess her impairment of her upper extremities, the Medical Assessor accordingly had to use his discretion and weigh the other available evidence to determine whether the appellant had an impairment.
In the Appeal Panel’s view the Medical Assessor was correct to use impingement to assess the appellant’s impairment of her upper extremities. The Medical Assessor could not make a diagnosis of impingement because he could not conduct appropriate provocative testing due to the appellant’s pain and the extremely limited range of movement she exhibited during examination of her shoulders. The Medical Assessor nevertheless had to make an assessment, and he inferred, based on the pathology that the radiological examination of the appellant’s shoulders revealed, that it was likely that the appellant did have impingement. Further, in the Appeal Panel’s view, there was no other appropriate method by which the appellant’s impairment relating to her shoulders could have been rated. She did not have a peripheral nerve disorder. She did not have any vascular disorder. There was no resection or any implants. There was not evidence of hypertrophy. There was no evidence of recurrent subluxation or dislocation. Impingement was really the only analogous method by which the appellant’s impairment could be rated.
In the Appeal Panel’s view the Medical Assessor did not make an error with respect to his assessment of the appellant’s impairment of her upper extremities nor did he apply incorrect criteria to rate her impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 September 2023 should be confirmed.
0