Shine Early Learning Pty Ltd v Moarefvand

[2024] NSWPICMP 153

DETERMINATION OF APPEAL PANEL
CITATION:	Shine Early Learning Pty Ltd v Moarefvand [2024] NSWPICMP 153
APPELLANT:	Shine Early Learning Pty Ltd
RESPONDENT:	Sedigheh Moarefvand
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	18 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) made assessment based on incorrect criteria and erred by assessing 3% whole person impairment for the respondent’s cervical spine injury; Appeal Panel found that the MA made his assessment based on correct criteria and did not err; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 17 November 2023 Shine Early Learning Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 October 2023.

2. 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.

3. 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.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. Sedigheh Moarefvand, the respondent, commenced employment in 2010 with the appellant, working as a childcare teacher and cook. On or around 6 September 2023 she instituted proceedings in the Personal Injury Commission (Commission) seeking determination of a claim she had made against the appellant’s insurer for permanent impairment from an injury she suffered in her workplace, the degree of which she particularised in her application to resolve a dispute (ARD) that she filed to initiate the proceedings was 13% whole person impairment (WPI). She provided in the ARD the following description of her injury and how it occurred:

   “The Applicant worked for the Respondent as a permanent part-time childcare teacher and cook. The applicant’s duties involved significantly repetitive movements including lifting heavy objects, twisting and bending. The Applicant progressively experienced intermittent shoulder, lumbar spine, neck, right knee and bilateral feet pain. In addition to the nature and conditions of the applicant’s employment she also had three falls throughout her time with the respondent that resulted in injury. Please refer to the applicant’s statement for further details.”

2. Attached to her ARD were several documents to support her claim, including a statement she signed on 13 January 2023 and also a report of orthopaedic surgeon Dr Eugene Gehr dated 15 May 2023. Dr Gehr advised in his report that he had assessed the respondent’s permanent impairment to be 13% WPI comprised of 8% WPI for the respondent’s cervical spine and 5% WPI for her lumbar spine. Dr Gehr also advised that his assessment of the respondent’s impairment relating to her cervical spine included 3% WPI in accordance with paragraph 4.34 of the Guidelines, that being for the effect her injury had on her activities of daily living (ADLs).

3. Preceding the respondent initiating proceedings in the Commission, the appellant’s insurer had notified the respondent under s 78 of the 1998 Act that it disputed liability for her claim, and hence the respondent’s reason for initiating proceedings in the Commission. The insurer advised the respondent its reasons for disputing her claim was because it considered her permanent impairment from her injury was not greater than 10%, which her permanent impairment was required to exceed in order for her to be entitled to compensation for permanent impairment under s 66 of the Workers Compensation Act 1987. It relied on a report of orthopaedic surgeon Dr Stephen Rimmer dated 12 July 2023 who had assessed the respondent’s permanent impairment was 0% WPI.

4. On 27 September 2023 the Commission issued a referral to the Medical Assessor requiring him to assess several medical disputes relating to the respondent’s injury, including the degree of any permanent impairment of the respondent as a result of her injury. That referral was amended on 28 September 2023. The date of the injury specified in that amended referral was “21 November 2021 – deemed”. The body parts listed in the amended referral that the Medical Assessor was required to assess were specified to be the cervical spine, lumbar spine and left lower extremity.

5. On 21 September 2023 the respondent filed with the Commission an amended ARD dated 21 September 2023. The section within that amended ARD that related to the details of the respondent’s claim for permanent impairment had deleted the reference to left lower extremity. Noting that, and noting also that Dr Gehr in his report of 15 May 2023 advised that he assessed the respondent had no ratable impairment relating to a fracture of the left metatarsal foot, which was the only part of the anatomy of the respondent’s left lower extremity that he assessed for impairment, it is not apparent to the Appeal Panel from the documents that are before it why the left lower extremity was included in the referral to the Medical Assessor.

6. Be that as it may, the Medical Assessor examined the respondent on 18 October 2023 to conduct his assessment of the matters that were referred to him. As said, he issued the MAC on 23 October 2023.  In that he certified he assessed the degree of the respondent’s permanent impairment was 15% WPI, comprised of 8% WPI for the cervical spine, 5% WPI for the lumbar spine and 2% WPI for the left lower extremity. His assessment of 8% WPI for the respondent’s cervical spine included 3% WPI for the effect of her injury on her ADLs.

7. The appellant’s appeal relates to the Medical Assessor’s assessment of 3% WPI for the effect the respondent’s injury to her cervical spine had on her ADLs. With respect to that matter the Medical Assessor recorded in the MAC that the respondent had reported she suffered pain and discomfort in the midline and to the right side of her cervical spine and that that pain was constant but varied in intensity and radiated to both the right and left shoulders. The Medical Assessor also noted that the respondent lives alone in a one-bedroom apartment and that she requires the assistance of her two sons who live nearby for her domestic activities. The Medical Assessor also noted that the respondent’s sister and niece assisted her with her cooking, cleaning and washing. The Medical Assessor noted that the respondent requires a chair when using her bathroom and had difficulty attending to her hair due to the pain in her neck and required assistance occasionally, but otherwise the respondent was able to feed, wash and dress herself.

8. The Medical Assessor found from his examination from the respondent’s cervical spine that she had left and right tenderness over the paravertebral muscles, but there was no muscle spasm or muscle guarding. The Medical Assessor found that the respondent had 50% of predicted flexion and only 25% of predicted extension of her cervical spine and midline pain. The Medical Assessor found that the respondent had 25% rotation of her cervical spine to the left when compared to 50% to the right and had lateral tilt to the left of 25% which was equal to the lateral tilt on the right.

9. The Medical Assessor also found that the respondent had normal power, tone and reflexes in both her upper limbs. He found that sensory testing of her upper limbs revealed no abnormality on the right side but decreased sensation in the entirety of her right arm that did not follow a nerve root pattern.

10. The Medical Assessor correlated his findings relating to the respondent’s cervical spine with DRE cervical category II for which the base rating is 5% WPI. The Medical Assessor explained that because the respondent has difficulties in self-care particularly with respect to washing her hair and dressing herself, he considered 3% WPI ought to be added to the base of 5% WPI allowed under DRE cervical category II. He noted that Dr Gehr had also assessed that for the impact the respondent’s injury had on her ADLs.

PRELIMINARY REVIEW

1. 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.

2. 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 came to the conclusion that the appellant had not established either of these ground for appeal on which it relied, and consequently there was no basis for the Appeal Panel to examine the appellant.[1]

   [1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

1. 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. 

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, the appellant submitted that the Medical Assessor’s assessment of 3% WPI for the impact of the respondent’s impairment of her cervical spine on her ADLs was an error and based on incorrect criteria. The appellant noted that the history the Medical Assessor recorded included that the respondent was capable of feeding, washing herself and dressing herself. The appellant noted that the respondent, in a statement she signed on
   13 January 2023, said she could not attend to her hobbies such as swimming, cannot do the dishes at home because her thumbs and wrist would not allow her, could not do much cleaning and cooking at home and cooking was difficult because of her sore wrists and that her sons and sisters come over a couple of times a week to help her with mopping, vacuuming and cleaning the dishes.

3. The appellant referred to paragraph 4.35 of the Guidelines, which the appellant submitted the Medical Assessor failed to consider correctly. The appellant submitted that the Medical Assessor failed to evaluate the evidence, specifically that relating to how the respondent is capable of feeding, washing herself and dressing and the appellant submitted that a correct application of the criteria would result in a 2% WPI being added for the impact of the respondent’s impairment had on her ADLs.

4. In reply, the respondent submitted that the Medical Assessor noted that her ability to feed, wash and dress herself was affected by her injury and that she now requires a chair in the bathroom whilst doing her hair due to pain in her neck. The respondent submitted that the Medical Assessor considered and evaluated the evidence relating to her ADLs. The respondent submitted that whilst she can attend to some of her ADLs, because she has difficulty with washing and dressing herself she falls within the criteria for a 3% WPI to be added.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. Paragraph 4.33 of the Guidelines reads as follows:

   “Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. The bottom of the range is chosen initially, and a percentage of from 0-3 per cent may be added for the impact of the injury on the worker’s ADL. Hence, for example, for an injury which is rated DRE Category II, the impairment is 5 per cent, to which may be added an amount of up to 3 per cent for the effect of the injury on the worker’s ADL. The determination of the impact on ADL is not solely dependent on self reporting, but is an assessment based on all clinical findings and other reports.”

4. In the succeeding two paragraphs in the Guidelines, there follows a diagram and a key to the diagram, the upshot of which is that, as a guide, if a Medical Assessor considers there is a difference in a worker's ability to perform ADLs as a consequence of an impairment of the worker's spine then the Medical Assessor should add one percent to the bottom range of the relevant DRE category if that impairment affects the worker's ability to perform outdoor or recreational activities, 2% if the injury impairs the worker's ability to attend to his or her domestic requirements and 3% if the injury affects the worker's ability to attend to his or her personal needs. To repeat, paragraphs 4.34 and 4.35 operate only as a guide, and the overriding requirement is for the Medical Assessor to add an amount to the bottom range of the relevant DRE category for the effect an injury to the spine has on ADLs only if that addendum accords with the Medical Assessor's clinical judgement.

5. There needs to be more than a difference of opinion on a subject matter about which reasonable minds might differ in order to establish error on the part of a Medical Assessor. In other words, it is not sufficient with respect to any matter that was referred to a Medical Assessor to assess that another examiner may have reasonably formed a different view than that of the Medical Assessor, provided it was open to the Medical Assessor, based on a proper exercise by the Medical Assessor of his or her clinical judgement, to make the assessment she or he did.

6. In this matter the Medical Assessor identified from his examination of the respondent’s cervical spine that she had tenderness in the left and right paravertebral muscles and restricted movement of her neck. The Medical Assessor also identified, based on what the the respondent reported to him, that she suffered pain and discomfort in the midline and to the right side of her cervical spine that was constant and varied in intensity and radiated down to both her shoulders. The Medical Assessor also identified, again based on the respondent’s report to him, that she depended on her children for assistance with her domestic activities and depended on her sister and a niece with some tasks relating to her self-care. The Appeal Panel also considers that, based on the Medical Assessor’s findings from his examination and also the respondent’s reported symptoms, the respondent would in all likelihood be limited in term of her recreational activities.

7. Given all that, the Appeal Panel can discern no error in the exercise by the Medical Assessor of his clinical judgement.  He has made no error by adding 3% WPI for the effect the respondent’s cervical spine injury has on her ADLs. He relied upon his own clinical findings and the respondent’s reported symptoms when exercising his clinical judgement and the Appeal Panel can discern no error in the exercise by him of his clinical judgement. Other examiners may have added 2% WPI, rather than 3% WPI, the effect the appellant’s injury to her cervical spine has on her ADLs, but that merely indicates a difference of opinion between medical examiners on a matter about which reasonable minds might differ, and does not expose any error in the Medical Assessor’s clinical judgement.

8. Further, it does not matter that pain the respondent experiences in her wrists and thumbs, that is unrelated to her cervical spine injury, also affects her with her ADLs.  Because the respondent’s cervical spine injury materially contributes to her experiencing difficulty with her ADLs, the Medical Assessor was correct to add a rating of WPI in accordance with paragraphs 4.33-4.35 of the Guidelines when assessing the respondent’s permanent impairment relating to her cervical spine. 

9. For these reasons, the Appeal Panel has determined that the MAC issued on
   23 October 2023 should be confirmed.