Simpson v R&L Refrigeration & Air-Conditioning Pty Ltd
[2024] NSWPICMP 820
•3 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Simpson v R&L Refrigeration & Air-Conditioning Pty Ltd [2024] NSWPICMP 819 |
| APPELLANT: | Clint Simpson |
| RESPONDENT: | R&L Refrigeration & Air-Conditioning Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Ross Mellick |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 3 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by failing to set out sufficient findings to explain the assessment he made of the appellant’s permanent impairment; Appeal Panel held the MA’s findings from his examination were insufficient to support his assessment; Appeal Panel held it could not rely on a presumption of regularity in this case; Held – Appeal Panel found the Medical Assessment Certificate (MAC) contained a demonstrable error; appellant re-examined; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 July 2024 Clint Simpson, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 June 2024.
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 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.
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 with R & L Refrigeration & Air-Conditioning Pty Ltd (the respondent) in 2017 as a fulltime refrigeration mechanic. On 17 November 2019 he suffered an injury to his right shoulder and spine. This occurred while he and a fellow employee of the respondent lifted an object weighing between 100 and 150 kilograms from a truck.
On 10 November 2023 the appellant’s solicitors wrote to the respondent’s solicitors advising them that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from his injury that had been assessed to be 28% whole person impairment (WPI). The appellant’s solicitors enclosed with their correspondence two medical reports to support the appellant’s claim, specifically a report of consultant neurologist Dr Paul Teychenné dated 10 February 2023 and a report of orthopaedic surgeon Dr Murray Hyde Page dated 10 October 2023.
In his report Dr Teychenné advised that he considered the appellant had suffered an incomplete cervical cord lesion due to his injury on 17 November 2019. Dr Teychenné assessed the appellant had 24% WPI due to spinal cord dysfunction from the incomplete cervical cord lesion, that being a combination of 10% WPI he assessed by reference to the criteria of Table 15-6b of AMA 5 and 15% WPI assessed by reference to the criteria of Table 15-6c of AMA 5.
Dr Hyde Page diagnosed the appellant had suffered an acute right shoulder injury with a labral tear from his injury. Dr Hyde Page noted that the appellant had arthroscopic surgery in which his labrum was repaired, a paralabral cyst was removed and a rotator cuff decompression was done. Dr Hyde Page noted the appellant only achieved a partial recovery from this surgery resulting in the appellant having ongoing pain and stiffness in his right shoulder. Dr Hyde Page assessed the appellant had 5% WPI due to the injury to his right shoulder, which he assessed based on the restricted movement the appellant had in his right shoulder.
Dr Hyde Page also considered the appellant suffered an injury to his cervical spine in the incident on 17 November 2017 due to his aggravating underlying cervical spondylosis in the incident. Dr Hyde Page did not make any assessment of the degree of permanent impairment the appellant had relating to his cervical spine.
The Appeal Panel notes that the 24% WPI Dr Teychenné assessed the appellant had from his injury and the 5% WPI Dr Hyde Page assessed he had combines to 28% WPI in accordance with the Combined Values Charge of AMA 5, and hence the appellant’s claim for compensation for 28% WPI.
On 22 November 2023 the respondent’s solicitors wrote to the appellant’s solicitors advising the appellant’s solicitors, in substance, that based upon a report the respondent’s insurer had received from orthopaedic surgeon Dr Richard Powell dated 14 June 2023, the respondent offered to settle the appellant’s claim by paying compensation to the appellant for 11% WPI from his injury. The respondent’s solicitors previously provided the appellant’s solicitors with a copy of Dr Powell’s report under cover of a letter dated 7 July 2023. In that report, which followed Dr Powell’s examination of the appellant on 9 May 2023, Dr Powell advised that the appellant had sustained injuries to his cervical spine and right shoulder, which he diagnosed were, respectively, a musculoligamentous injury of the appellant’s cervical spine and aggravation of multi-level changes of cervical spondylosis, and a right shoulder labral tear that was managed by means of a shoulder arthroscopy, subacromial compression, labral tear and excision of a paralabral cyst. Dr Powell advised that he assessed the appellant had 7% WPI of his cervical spine but considered a one-tenth deduction should be made for the presence of pre-existing pathology such that he assessed the degree of the appellant’s permanent impairment from his injury is 6% WPI. Dr Hyde Page advised that he assessed the appellant had 5% WPI relating to his right shoulder from his injury. He assessed that by reference to restricted range of motion the appellant had in his shoulder. Dr Powell also advised that he considered a one-tenth deduction should be made for the presence of pre-existing pathology in the appellant’s shoulder, but noted upon that being done, it produced the same figure after rounding the result.
It is apparent that the appellant did not accept the respondent’s offer, since the appellant initiated proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 2 February 2024 seeking determination by the Commission of his claim for compensation for permanent impairment from his injury.
On 26 February 2024 a delegate of the President referred the medical dispute between the parties to the Medical Assessor, with that medical dispute being defined in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 17 November 2019
Body part/s referred: Cervical spine
Right upper extremity
Lumbar spine
Thoracic spine
Method of assessment: Whole person impairment”
The Medical Assessor examined the appellant on 12 March 2024 and, as said above, issued the MAC on 12 June 2024. The Medical Assessor detailed within the history he set out in the MAC that the appellant intermittently uses Endone and Melatonin and has physiotherapy consisting of massage for his neck. The Medical Assessor noted that the appellant’s present symptoms include the appellant having weakness in his right shoulder when reaching in front or overhead. The Medical Assessor noted that the appellant described experiencing neck pain with associated aches and intermittent vomiting and occasional vision blackouts and experiencing electric shocks in his arms and legs and numbness globally across his fingers.
The Medical Assessor recorded that the appellant previously enjoyed going to the gym and playing cricket and golf, which he is no longer able to do.
The Medical Assessor briefly noted the results of radiological investigations the appellant had done on his right shoulder and on his cervical spine.
The Medical Assessor recorded in the MAC making the following findings from his physical examination of the appellant:
“On examination he walked with a stick in his right upper hand. Romberg’s test was negative. Trendelenburg’s test is normal. Upper limb reflexes were symmetrical, with a negative Hoffman test. Peripheral power was intact. Upper arm circumference was 37cm and symmetrical. Forearm circumference was 34cm and symmetrical. Lower limb reflexes were symmetrical, with no clonus in the lower limbs.
There were well healed arthroscopic portals around the right shoulder. Range of motion was assessed in the shoulders as follows:
MOVEMENT
RIGHT
LEFT
Flexion
100°
100°
Extension
40°
40°
Abduction
90°
90°
Adduction
20°
20°
Internal rotation
80°
80°
External rotation
80°
80°
The upper limbs were neurovascularly intact.”
The Medical Assessor provided the following summary of the appellant’s injury:
“Mr Simpson sustained an injury lifting at work and injured his right shoulder. Today imaging demonstrated a labral tear, for which he has undergone arthroscopic surgery. He subsequently developed pain in his neck, with non-specific symptoms radiating into his limbs, representing aggravation of pre-existing degenerative disease in his neck.”
The Medical Assessor explained that he assessed the appellant’s impairment relating to his cervical spine accorded by reference to the criteria for DRE Cervical Category II of Table 15.5 of AMA 5. He explained this was because of the restricted range of movement he found the appellant and non-verifiable symptoms the appellant experienced radiating into his upper limbs. No complaint has been made by either party regarding that element of the Medical Assessor’s assessment.
The Medical Assessor also explained that on account of the appellant’s restrictions of activities of daily living and in accordance with paragraph 4.34 of the Guidelines he added 1% WPI to the base rating of 5% WPI allowed for diagnosis-related estimate (DRE) Cervical Category II. The Medical Assessor noted that Dr Powell had added 2% WPI for the appellant’s restrictions in activities of daily living, in regards to which the Medical Assessor said that he had assessed 1%.
The Medical Assessor also stated his opinion that the appellant had a pre-existing condition of cervical spondylosis and that his injury to his cervical spine represented an aggravation of that condition. The Medical Assessor considered that a one-tenth deduction was to be made on account of that when assessing the degree of the appellant’s permanent impairment from the injury to his cervical spine. No complaint has been made about that in the Appeal.
The Medical Assessor also explained in the MAC that he assessed the appellant’s impairment relating to his right shoulder by reference to the appellant’s range of motion. He noted that the appellant had restricted range of motion in his right shoulder but also an equivalent restricted range of motion in the appellant’s “uninjured left should”. The Medical Assessor said “hence, according to SIRA page 12, paragraph 2.20, 0% whole person impairment is assessed for the right shoulder”.
The Medical Assessor noted that Dr Hyde Page had “detected asymmetrical movement in the right shoulder” and that Dr Hyde Page had assessed the appellant had an impairment in his right shoulder. The Medical Assessor also noted Dr Powell had assessed the appellant had 5% WPI for restricted range of motion in his shoulder but observed that Dr Powell did not record in his report of 14 June 2023 the range of motion of the appellant’s left shoulder. The Medical Assessor repeated “at my assessment today, I did not detect asymmetrical restriction of movement and hence, have not assessed impairment for the right shoulder”.
The Medical Assessor also recorded in the MAC that the appellant “did not report issues related to his thoracic or lumbar spine”. The Medical Assessor said “examination did not detect any abnormality with respect to the thoracic or lumbar spine”. The Medical Assessor said that “according to AMA5 page 389, figure 15.4 and 384, 15.3 assessment of DRE Category was made for the thoracic and lumbar spine (0% whole person impairment)”. The Appeal Panel notes that Figure 15-4 provides a flow chart detailing steps to be taken in the evaluation process of assessing spinal impairment. That proves no significant instruction to a medical assessor, noting the process to be followed is specified in Table 4.1 of the Guidelines. The Appeal Panel further notes that page 384 of the Guidelines contains Table 15-3 of AMA 5 which provides the criteria by which to determine into which DRE Lumbar Category a worker’s lumbar impairment may fall, and page 389 contains Figure 15-4 which similarly detail the criteria for the DRE Category for thoracic spine impairment. It would seem that the Medical Assessor’s reference to Figure 15.4 was an error and he was in fact referring to Table 15-4.
The Medical Assessor also noted within the MAC that Dr Teychenné had in his report of 10 February 2023 advised he assessed the appellant had 24% WPI due to “spinal injury and spinal cord dysfunction”. Regarding that the Medical Assessor said, “there was no evidence of spinal cord dysfunction at my assessment today”. The Medical Assessor also noted that “Dr Farey did not make such an assessment at the time of his review”. The Appeal Panel notes that Dr Ian Farey is a spinal surgeon to whom the appellant’s general practitioner referred the appellant for treatment and management. Dr Farey examined the appellant on 31 March 2020 and again on 9 June 2020 and in reports he provided to the appellant’s general practitioner regarding those consultations he made a diagnosis of cervical spondylosis and associated radiculopathy. He did not make a diagnosis of spinal cord dysfunction or incomplete cervical cord lesion.
Thus, the Medical Assessor certified that he assessed the degree of the appellant’s permanent impairment from his injury was 5% WPI, consisting wholly of the impairment he assessed the appellant had relating to his cervical spine from his injury, and 0% WPI relating to his right upper extremity, thoracic spine and lumbar 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 the respondent should undergo a further medical examination. This is because, for reasons explained below in “findings and reasons” the Appeal Panel found the MAC contains demonstrable errors which the Appeal Panel needs to correct. To correct those errors the Appeal Panel required clinical data, which could only be obtained through further examination of the appellant.
The Appeal Panel appointed Medical Assessor Ross Mellick, a neurologist, to examine the appellant’s the appellant’s thoracic and lumbar spine and also examine him for spinal cord dysfunction. The Appeal Panel appointed Medical Assessor John Brian Stephenson, an orthopaedic surgeon, to examine the appellant’s shoulders. The respective reports of those medical assessors are set out below under the heading Findings and Reasons.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Paraphrasing the appellant’s submissions so as to provide a summary of them, they are that the Medical Assessor did not correctly apply paragraph 2.20 of the Guidelines because he failed to provide a rationale for subtracting the impairment of his left should from the impairment of his right shoulder when calculating the degree of permanent impairment he had from his injury due to his right shoulder.
The appellant submitted that the Medical Assessor did not explain how he measured the range of movement of his shoulders including whether he measured the range of movement multiple times.
The appellant submitted that the Medical Assessor did not obtain an adequate history regarding his right shoulder in that he did not refer to the reports of Dr Powell and Dr Teychenné.
The appellant submitted that the Medical Assessor failed to assess his spine comprehensively and failed to explain how he concluded there was no evidence of spinal cord dysfunction. The appellant submitted that the Medical Assessor did not engage sufficiently with the evidence regarding his conclusion that there was no evidence of spinal cord dysfunction in that the Medical Assessor did not engage with the evidence provided by Dr Teychenné in his report of 10 February 2023.
The appellant submitted that the Medical Assessor did not provide adequate reasons for assessing he had 0% WPI with respect to his thoracic spine and lumbar spine. The appellant submitted that the Medical Assessor did not “detail the process of examination for the thoracic and lumbar spine”.
The appellant submitted that the Medical Assessor when assessing his degree of permanent impairment relating to his cervical spine did not explain which activities of daily living he considered to determine what percentage WPI should be added in accordance with paragraph 4.33 of the Guidelines.
The appellant submitted that the Medical Assessor erred by making a deduction of one-tenth under s 323 when assessing what the degree of his permanent impairment is from his injury to his cervical spine. The appellant noted that prior to his injury he did not have symptoms associated with cervical spondylosis. The appellant submitted that the Medical Assessor did not determine what the specific consequence is of a pre-existing condition to his current impairment.
Paraphrasing the respondent’s submissions so as to provide a summary of them, they are that the Medical Assessor found the range of motion of the appellant’s shoulders in all planes was the same bilaterally and, consequently, there is no merit in the appellant’s submission relating to the Medical Assessor’s assessment of his impairment relating to his right shoulder.
The respondent submitted that the Medical Assessor was unable to find any evidence of spinal cord dysfunction from his examination of the appellant and from his review of the medical investigations provided to him. The respondent submitted that the Medical Assessor adequately examined the appellant’s thoracic and lumbar spine and noted the appellant did not report issues regarding his thoracic or lumbar spine. The respondent highlighted that the Medical Assessor recorded that he found no abnormalities with respect to the appellant’s thoracic and lumbar spine.
The respondent noted that the Medical Assessor recorded that the appellant was unable to play cricket and golf and was unable to go to the gym, which he did prior to his injury. The respondent noted that the Medical Assessor added 1% WPI on account of that. The respondent submitted that the Medical Assessor correctly applied the guidelines with respect to activities of daily living.
The respondent submitted that the Medical Assessor did not err by applying the provisions of s 323.
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.
At the outset, and for the sake of completeness, the Appeal Panel notes that the appellant’s “spinal cord” was not included in the referral as one of the “body part/s” to be assessed by Medical Assessor. Nevertheless, it is apparent from the appellant’s solicitors’ letter of 10 November 2023, which enclosed the report of Dr Teychenné dated 10 February 2023 to support the appellant’s claim for compensation for permanent impairment, that his claim included permanent impairment due to spinal cord dysfunction from his injury. Whether he had any permanent impairment due to spinal cord dysfunction was consequently part of the medical dispute between the parties.[1]
[1] Skates v Hills Industries Ltd [2021] NSWCA 142 at [46].
With respect to the Medical Assessor’s assessment of the appellant’s permanent impairment relating to his lumbar spine, thoracic spine and spinal cord dysfunction, the Appeal Panel agrees with the appellant’s submissions insofar as the appellant contends that the findings the Medical Assessor recorded from his examination are not sufficient to confirm the assessment he made. That is, the Medical Assessor’s recorded findings were not sufficient to enable a proper assessment of his permanent impairment to be done with respect to those body parts. In such circumstance, the Appeal Panel can also not be satisfied that the Medical Assessor’s examination of the appellant was sufficiently thorough to enable a proper assessment to be done.
The Medical Assessor’s reasons for his assessment needed to be such so that the appellant, and the Appeal Panel, could comprehend why the appellant failed to be assessed with any impairment.[2] If it is the case that the Medical Assessor did conduct a thorough examination of the appellant, which as the Appeal Panel has indicated in the preceding paragraph is not apparent from the MAC, then the findings the Medical Assessor recorded from his examination of the appellant did not meet this standard.
[2] Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34]
The Medical Assessor did not under the heading “findings on physical examination” include any findings relating to the appellant’s thoracic examination. His findings within that section of the MAC regarding the appellant’s lumbar spine included only findings relating to the appellant’s reflexes. Within part 10d of the MAC the Medical Assessor recorded that the appellant did not report any issues relating to his thoracic or lumbar spine and that his “examination did not detect any abnormalities with respect to the thoracic or lumbar spine”. However, he did not reveal in any detail what his examination of the appellant’s thoracic lumbar spine involved.
Further, the findings the Medical Assessor recorded in the MAC from his examination of the appellant were not sufficient to exclude spinal cord dysfunction. Whilst the Medical Assessor recorded his findings relating to the appellant’s reflexes and the peripheral power of his upper limbs, he recorded little else to enable a conclusion being made that the appellant did not have spinal cord dysfunction.
The Appeal Panel is aware that the assessment a Medical Assessor undertakes of a workers’ permanent impairment is an administrative task, and, consequently there is a presumption of regularity that a Medical Assessor has attended to all matters necessary to undertake the task of assessing a workers’ permanent impairment.[3] In this case however, because the findings from the Medical Assessor’s examination are so scant, the Appeal Panel considers it cannot rely upon the presumption of regularity described in Bojko.
[3] Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36] (Bojko); Warwick Campbell v Starr Electrical Co Pty Ltd [2024] NSWSC 1341 at [118]-[121]; Keelan v Pearl Beach Real Estate Pty Ltd [2024] NSWSC 1430 at [38].
Similarly, the Appeal Panel considers it also cannot rely on a presumption of regularity regarding the Medical Assessor’s examination of the appellant’s shoulders, and consequently accepts the appellant’s submissions to the effect that the Medical Assessor’s examination of his shoulders was not conducted properly. The Appeal Panel notes that the appellant described to the Medical Assessor that he experienced symptoms of being weaker in his shoulder and experiencing pain and electric shocks in his arms. In that circumstance, the Appeal Panel considers that the Medical Assessor ought to have conducted repeated testing of the appellant’s movement of his shoulders or otherwise provided an explanation why he considered his recoded findings of the appellant’s movement of his shoulders are reliable. Because the Appeal Panel cannot rely on a presumption of regularity, it cannot be satisfied that the Medical Assessor did repeat testing. Either his lack of doing that or his failure to provide an explanation why he considered his findings of the appellant’s shoulder movements are reliable (in the event that he did only measure them once) the MAC contains a demonstrable error. Further, the Appeal Panel cannot be satisfied that the Medical Assessor used a goniometer or inclinometer, again because it cannot rely on a presumption of regularity.
The Appeal Panel also accepts the appellant’s submissions insofar as they relate to the Medical Assessor not obtaining a sufficient history to enable him to assess the amount to be added under paragraph 4.23 of the Guidelines for the effect the appellant’s injury has on his activities of daily living. In the Appeal Panel’s view the Medical Assessor ought to have set out the history he obtained relating to what effect, if any, the appellant’s cervical spine injury had on his ability to self-care, manage home care and manage yard and garden care. Absent the Medical Assessor detailing what effect the appellant’s injury has on these matters, the Appeal Panel considers that the Medical Assessor’s explanation for adding 1% WPI only is insufficient.
The Appeal Panel does not accept the appellant’s submission that the Medical Assessor erred by making a deduction under s 323(1) of the 1998 Act. The Medical Assessor found correctly in the Appeal Panel’s view, that the appellant had a pre-existing cervical spondylosis. That is revealed in the MRI scan done of the appellant’s cervical spine on 29 December 2020 being just over a year after the appellant suffered injury, and also the MRI done on 29 June 2022. The earlier MRI showed narrowing of the appellant’s cervical spine at C5/6 and C6/7. Given that that investigation was done just over a year after the appellant suffered injury, that degeneration in the cervical spine would have been in existence immediately preceding the date of his injury. The subsequent MRI revealed that the degeneration progressed slightly from the date of the earlier degeneration, which would be a consequence of the normal pathological progression of the degeneration. It would not have been due to the appellant’s injury.
The appellant’s injury precipitated symptoms from that degeneration. The appellant’s impairment from his injury has been assessed on the basis that his signs and symptoms correlate with the criteria for DRE Cervical Category II, specifically the appellant displaying restricted range of movement of his cervical spine during the Medical Assessor’s examination of him and also the appellant experiencing non-verifiable symptoms radiating into his upper limbs. The appellant’s restriction of movement of his cervical spine and the symptoms he experiences in his upper limbs emanate from the pre-existing degeneration in his cervical spine although triggered by his injury. The pre-existing condition necessarily forms part of and therefore a proportion of his present impairment relating to his cervical spine.
The explanation the Medical Assessor provided for engaging s 323(1) revealed that he did not apply the right test in that he considered the relevance of the appellant’s pre-existing degeneration in his cervical spine to the occurrence of injury, rather than its contribution to his current permanent impairment. Nevertheless, his pre-existing degeneration does contribute to a proportion of his permanent impairment from his injury because the symptoms he has and the restricted range of movement he has are a consequence of his pre-existing degeneration, and without the pre-existing degeneration he would not have an impairment of the cervical spine.
The Appeal Panel also considers that the Medical Assessor was right to assume pursuant to s 323(2) that the deductible proportion for the purpose of s 323(1) is one-tenth, and this is because it is difficult to determine precisely what proportion of the appellant’s permanent impairment is due to his pre-existing condition and making that assumption is not at odds with the evidence.
Because the MAC contains demonstrable errors, the Appeal Panel is required to correct those errors.
As said, the Appeal Panel appointed Medical Assessor Mellick to examine the appellant with respect to the appellant’s thoracic spine, lumbar spine and spinal cord dysfunction/corticospinal tract damage. The Appeal Panel appointed Medical Assessor John Brian Stephenson to examine the appellant’s shoulders.
The Appeal Panel repeats that neither party raised issue with respect to the Medical Assessor’s findings from his examination of the appellant’s cervical spine or the Medical Assessor finding that the appellant’s impairment with respect to his cervical spine falls within DRE Category II.
Medical Assessor Mellick examined the appellant on 1 October 2024 and provided the Appeal Panel with the following report on his examination:
“1. HISTORY RELATING TO THE INJURY
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: On 17 November 2019 Mr Simpson was picking up skirting from the floor. He was swinging the skirting up onto his left shoulder when he experienced sudden pain in his right shoulder. He ceased work immediately because of the pain. No ambulance was called and he was taken by a workmate to the Taree Hospital and an ultrasound was done. He was not admitted and was informed that he had a torn ligament in his right shoulder.
He subsequently saw his general practitioner and was referred to Dr Kennedy, Orthopaedic Surgeon, who confirmed the diagnosis of a tear in the right shoulder and approximately three months after the injury surgery was performed by Dr Kennedy. Mr Simpson said that the pain in the right shoulder initially did not improve. However, about three months’ later he noticed the pain had begun to improve.
It was about the time of improvement in the right shoulder pain that he became aware of pain in the neck, together with a burning sensation involving the lateral aspect of the convexity of both shoulders. The burning pain was posteriorly situated at the convexities of both shoulders and was associated with pain involving the left and right sides of the neck.
He did not have investigations of the cervical spine until a month or two after surgery on his right shoulder. The scans were organised by his general practitioner and spondylosis was found at the C4/5, C5/6 and C6/7 regions but the features were reported not to have been ‘typical of slowing nerve issues’. My understanding is that Dr Farey found no evidence of a neurological disorder co-existing with the cervical spondylosis.
Mr Simpson was then referred by Dr Farey to a pain management programme. That programme was not helpful and involved a video link with seven other patients, and there was never face-to-face contact with a pain specialist. They were given instructions about an exercise programme by a physiotherapist that had to be performed at home on a regular basis. The whole programme lasted for about ten weeks and he reported that the cervical symptoms became worse, and he experienced an extension of symptoms to the posterior cervical region and downwards between the shoulder blades to the lower thoracic region and caudally to the lower lumbar region. He reported electric shock-like sensations which were ‘pulsating’ and occurring intermittently in both forearms and in the back of the left calf.
While giving this history, Mr Simpson suddenly indicated that he preferred to stand and after standing briefly he suddenly squatted, explaining that he was troubled by the electric shock feelings in both forearms and left calf. After a few minutes he resumed sitting and history taking continued.
He reported no therapeutic benefit from the pain management programme and was subsequently referred to a neurosurgeon, Dr Holford, who arranged nerve ablation treatment. He reports that that treatment was directed at the cervical spine and that the cervical symptoms became worse. He saw Dr Holford again who said he was able to fuse Mr Simpson’s neck but did not recommend the procedure, however he gave Mr Simpson the option to have the surgery if he wished. The surgery was declined. The doctor said the success rate was ‘not high’ but to come back if he changed his mind.
· Present treatment: A variety of medications have been provided. Mr Simpson is currently taking analgesic medication and tablets for anxiety and depression.
· Present symptoms: Mr Simpson reports persisting pain involving the lateral and posterior convexity of both shoulders and pain in the cervical region extending down involve the thoracic spine and the lumbar region in the midline.
He sometimes requires help from his wife to shave and to shower and to put on and take off his footwear. He does not require help with these matters on a consistent basis.
His function is variable and he is sometimes able to help with light household activities.
He has had a significant increase in weight, having gained about 17 kg since the injury in question and his current weight is 122 kg. He is 6ft 4ins tall.
· Details of any previous or subsequent accidents, injuries or condition: There is no previous or subsequent accident, injury or condition.
· General health: Very good
· Work history including previous work history if relevant: Mr Simpson began working in his parent’s newsagency and left that job to be trained as a refrigeration mechanic, which he has been doing for his whole working life.
· Social activities/ADL: Mr Simpson is married with four children between the ages of 20 and 6. He does not smoke, has two beers on the weekend and takes no recreational drugs.
2. FINDINGS ON PHYSICAL EXAMINATION
Mr Simpson was alert and cooperative.
Examination of the cranial nerves revealed no abnormalities.
Cervical movements were performed slowly and symmetrically through all planes of movement without muscle guarding. There was no paravertebral muscle wasting. Thoracic and lumbar movements were performed slowly, symmetrically and without muscle guarding over a normal range. The movements involved rotation, extension, lateral flexion to right and left and forward flexion.
He was able to assume the seated position and rise from the seated position without assistance. As recorded above, he requested to stand and then suddenly squatted so he was seated on his heels. It was a maximum squat and he was able to rise with ease.
He was able to assume the seated position on the examination couch with hips flexed and knees extended. After a few minutes, he indicated discomfort. This was not associated with muscle guarding. He lay on his back and straight leg raising was performed bilaterally to 30° without contact from the examiner.
I found no abnormalities of contour, posture, tone, coordination or of the superficial or deep modalities of sensation on examining the upper and lower extremities. Power was tested in the upper extremities and was variable when testing grip, improving with encouragement. There was no impairment of power production otherwise. There was normal finger abduction and dexterity bilaterally.
There was no organically determined weakness involving the proximal or distal lower extremities. Tone was normal.
The deep tendon reflexes were symmetrical and normally brisk in the upper and lower extremities and the plantar responses were flexor bilaterally.
No sensory abnormality or sensory level was noted on examining the torso anteriorly and posteriorly.
His gait was normal with normal accessory upper extremity and truncal movements.
Rombergism was absent.
3. DETAILS AND DATES OF SPECIAL INVESTIGATIONS
A bone scan was performed on 14 April 2021 and reported to reveal no focal increased activity in the cervical facet joints. Mild degenerative changes were noted. There was no specific comment about the thoracic or lumbar spine.
4. SUMMARY
· summary of injuries and diagnoses:
I have provided the history as related to me by Mr Simpson involving initial onset of pain in the region of the shoulder. I am asked to assess the thoracic and lumbar spine, spinal cord dysfunction and corticospinal tract damage. Spinal cord dysfunction may exhibit a variety of symptoms and signs, in addition to the symptoms and signs of corticospinal tract damage.
The distribution of pain into the thoracic and lumbar spine in the midline and in the paraspinal area is in keeping with the distribution of the spinal musculature and draws attention to pain of musculoskeletal origin. The findings on examination did not demonstrate any abnormality of movement of the thoracic or lumbar spine and were not associated with any paravertebral spinal guarding at any level.
The neurological assessment that I describe above involved testing of multiple long tract sensory and motor tracts passing through the spinal cord. The normality of my findings establishes normality of the spinal cord from the upper most part of the spinal cord.
Although there is reference to variable impaired activities of daily living, there are no organically determined abnormalities of function explaining those impairments.
There was evidence of inconsistency on examination in relation to power production and straight leg raising. With reference to the pulsating electric shock sensations recorded in the history, these symptoms are not associated within a context of other features such as organically determined symptoms or abnormal signs, and that description is most unlikely to refer to a process involving an organically determined disorder. Psychologically based symptoms are contributing to the clinical picture as it now presents.
I do not identify assessable abnormalities which explain impaired activities of daily living.
· consistency of presentation
There is consistency of presentation when correlated with the conclusions I reach, the nature of the injury, the co-existing radiological information and findings on physical examination.
5. REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment
My neurological assessment has included consideration of the history obtained from Mr Simpson and his wife, my findings on physical examination, radiological evidence and other documentary evidence. I do not identify an assessable impairment of the thoracic spine, lumbar spine, spinal cord or the corticospinal tract causally related to the injury on 17 November 2019.
b. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
I have considered all documents sent but do not propose to refer to each one.
· A detailed report prepared by Dr Murray Hyde-Paige dated 10 October 2023 provides the details of his physical examination and he recorded a ‘reasonably good grip strength in both hands…no evidence of any muscle wasting or weakness in the right upper limb compared to the left’. He recorded a normal examination of the thoracolumbar spine and that there were no symptoms involving Mr Simpson’s lower extremities. Those findings are in accord with the findings and conclusions I describe above.
However, I do not agree with Dr Hyde-Paige’s findings of an abnormality involving the deep tendon reflexes in the right arm or the sensory changes that he interpreted as indicating radiculopathy. The doctor’s findings provide no evidence of a thoracic or lumbar spine disorder, nor evidence of spinal cord dysfunction or corticospinal tract damage. In that regard, our findings coincide well.
Those comments are in keeping with my conclusions with regard to Mr Simpson’s legs and the normality of bladder and bowel function and control and also are in keeping with my observations regarding the absence of long tract or segmental signs pointing to the presence of any spinal cord dysfunction or corticospinal tract damage. The absence of any reference to pain or other symptoms involving the thoracic and lumbar spine is also in keeping with Mr Simpson’s presentation to me. The symptoms in the thoracic and lumbar spine only became part of the history because of my direct enquiry; otherwise, the impression is that Mr Simpson would not have drawn attention to those symptoms. Dr Hyde-Paige also records that he found a normal examination of the thoracolumbar spine.
· A report prepared by Dr Richard Powell dated 14 June 2023 includes no reference to symptoms involving the thoracic or lumbar regions. It is noted that Dr Powell recorded on page 4 that the neurological examination was entirely normal, which is in accord with my findings. Therefore, the doctor does not identify reflex changes or other evidence of motor or sensory symptoms and signs indicating corticospinal or spinal cord impairment or pathology, again agreeing with my findings.
Under the heading ‘Diagnosis’ Dr Powell records evidence of a musculoligamentous nature. Dr Powell’s report contains no history or other comment that raises evidence of corticospinal dysfunction, a spinal cord injury or evidence of an assessable impairment of the thoracolumbar spine.
The reference to symptoms involving both arms with extension distally to involve the hands in a global fashion does not indicate a spinal cord dysfunction as a cause. The physical examination reported by Dr Powell contains no sign suggesting a spinal cord disorder to have been present.
· Reports prepared by Dr Ian Farey, Spinal Surgeon, dated 31 March 2020 and 9 June 2020 made no reference to symptoms involving the thoracic or lumbar spine and his findings on physical examination were recorded to be neurologically normal. Dr Farey’s findings are consonant with my conclusions and he makes no reference to finding the abnormalities referred to by Dr Hyde-Paige regarding the diagnosis of radiculopathy with which I disagree.
· A report prepared by Dr Rebecca Martin dated 6 August 2020 included no evidence of spinal cord dysfunction and the physical examination included comment that the thoracic and lumbar spine ‘moved well’. She specifically recorded that the lower limb reflexes were present without clonus, which refers to the absence of evidence of a corticospinal disorder. Dr Martin referred to a painful withdrawal in relation to the supinator jerk which is an anomalous response and cannot be explained as the result of an organic process. It is of no diagnostic significance regarding organicity.
· Reports prepared by Dr Holford, Pain Specialist, dated 15 March 2021, 15 October 2021, 8 November 2021 and 11 May 2022 made no reference to symptoms indicating spinal cord dysfunction or corticospinal abnormalities, nor any comment of abnormalities of the thoracolumbar spine.
· A report prepared by Dr Teychenné dated 10 February 2023 makes a diagnosis of incomplete cervical cord lesion. His findings and conclusions have not been replicated by any other doctor and certainly my findings disagree with his observations. I disagree with his diagnosis of an incomplete cervical cord lesion.”
The Appeal Panel is of the view that Medical Assessor Mellick’s examination of the appellant was thorough and the Appeal Panel adopts the history he detailed in his report to the Appeal Panel and his findings as set out therein from his examination of the appellant.[4] In other words, the Appeal Panel agrees with Medical Assessor Mellick’s conclusion that the appellant does not exhibit any symptoms or signs of spinal cord dysfunction or corticospinal tract damage. Consequently, the appellant has 0% WPI due to spinal cord dysfunction or corticospinal tract damage.
[4] Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
The Appeal Panel also, based on the Medical Assessor Mellick’s findings with respect to the appellant’s lumbar and thoracic spine, assesses the appellant’s impairment with respect to each as 0% WPI. None of the appellant’s signs or symptoms correlate with the criteria for DRE Thoracic Category II or DRE Lumbar Category II.
The Appeal Panel notes that the history Medical Assessor Mellick obtained included the appellant needing help from his wife to shave and to shower and to put on and take off his footwear, although not on a consistent basis, and also needing help with light household activities. The Appeal Panel also notes that the Medical Assessor found that the appellant is unable to engage in golf or tennis and no longer able to go to a gym. The Appeal Panel considers that, on balance, a 2% WPI addition is warranted pursuant to paragraph 4.33 of the Guidelines, noting that the appellant only requires limited and occasional assistance for his personal care activities and also with household tasks. That means the Appeal Panel assesses the appellant’s impairment with respect to his cervical spine as 7% WPI, which when the deduction of 10% is made under s 323(1), results in 6% WPI resulting from his injury.
Medical Assessor Stephenson examined the appellant on 13 November 2024 and provided the Appeal Panel with the following report:
“1. The workers medical history, where it differs from previous records
Occupation: Refrigeration Mechanic, fitting a large refrigeration construction for a hotel on the Mid North Coast and was crawling while lifting the skirtings for a cool room. These were 8 to 9 metres long and weighted between 120-130 kg.
He lifted at waist height putting force through the right shoulder. He experienced pain in right shoulder. Dr Holford, pain specialist, North Shore Pain Clinic, has treated him. He has not been able to return to work. He had a right shoulder reconstruction for labral tear, Dr Stuart Kennedy, MD.
2. Additional history since the original Medical Assessment Certificate was performed
No additional history.
3. Findings on clinical examination
On examination, full range of motion of the opposite left shoulder. He was using a cane in the left hand. He stated he has neck pain which has been managed conservatively. On examination, right shoulder reference AMA5, Chapter 16, Page 476 to 479 and Figure 16-40 to Figure 16-46, upper extremity impairment is converted to WPI at Page 439, Table 16-3.
Conclusion: I found a 9% whole person impairment as a result of the injury to right shoulder on date of injury.
There is no deductible proportion in the absence of previous injury, condition or abnormality.
Right Shoulder
Abduction
80°
5% UEI
Adduction
20°
1% UEI
Flexion
90°
6% UEI
Extension
30°
1% UEI
External Rotation
30°
1% UEI
Internal Rotation
70°
1% UEI”
Subsequent to Medical Assessor Stephenson providing his report to the Appeal Panel he informed the Appeal Panel that he used a large goniometer to measure the appellant’s range of movement of his shoulders and also measured the appellant’s shoulder motion three times and achieved the same result each time.
The Appeal Panel is satisfied that Medical Assessor Stephenson conducted a thorough examination of the appellant and that his findings from his examination are reliable and the Appeal Panel consequently adopts those findings. Based on those findings the appellant has 15% upper extremity impairment which converts to 9% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 June 2024 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
Matter number: | W873/24 |
Applicant: | Clint Simpson |
Respondent: | R&L Refrigeration & Air Conditioning Pty Ltd |
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 Medical Assessor Rob Kuru 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) |
| Cervical spine | 17/11/2019 | Chapter 4 | Table 15-5 | 7% | 1/10 | 6% |
| Right upper extremity | Chapter 2 | Figures 16.40, 16.43, 16.46 | 9% | - | 9% | |
| Thoracic spine | Chapter 4 | Table 15-4 | 0% | - | 0% | |
| Lumbar spine | Chapter 4 | Table 15-3 | 0% | - | 0% | |
| Spinal cord dysfunction | Chapter 5, Paragraph 5.6 | Table 15-6 | 0% | - | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
7
0