Slade v Harrison Barratt Group Pty Ltd
[2023] NSWPICMP 566
•9 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Slade v Harrison Barratt Group Pty Ltd [2023] NSWPICMP 566 |
| APPELLANT: | John Slade |
| RESPONDENT: | Harrison Barratt Group Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 9 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor erred in failing to adequately assess his right shoulder injury “in accordance with mandated protocols contained in Chapter 16 of AMA 5 Guides; Panel found proper process of examination was done; no errors; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 July 2023 John Slade (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yui-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 July 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 (the 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).
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 worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in failing to adequately assess his right shoulder injury “in accordance with mandated protocols contained in Chapter 16 of AMA 5 Guides”.
In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of an injury to the right upper extremity on 25 September 2020.
The Medical Assessor obtained the following history:
“John Slade started working with Harrison Barrett Group Pty Ltd on 24 September 2020 and on the following day, 25 September 2020, when he was at work, he was holding a lot of electrical appliances and equipment, walking behind the Team Leader when his right foot was tripped by a protruded metal leg of a stand and he fell heavily on his right shoulder. He carried on to finish the days’ work and the next day, he went to Bowral Hospital where an x-ray was done, showing no fracture and he was discharged. He was then under the care of his family doctor with conservative treatment including x-ray, ultrasound, physiotherapy and medications. The progress was not too good so he ended up with an MRI scan on 15 March 2021, nearly 6 months’ later. The MRI confirmed partial thickness tear of the supraspinatus tendons and severe OA changes in the AC joint. He was then referred to see Orthopaedic Surgeon, Dr Andrew Leicester and was recommended to have conservative treatment with physiotherapy and medications but no injection was done. He was followed up with another MRI scan 7 months’ later, on 08 October 2021, and when reviewed by Dr Leicester, there was progress so he was recommended to continue with same line of management. He stopped working with Harrison Barrett Group Pty Ltd after the fall and roughly 1 year later, on 27 September 2021, he became the in-house Electrician of Bowral Hospital.”
After documenting Mr Slade’s current treatment, the Medical Assessor then set out present symptoms as follows:
“The right arm remains sore, it was sore in the shoulder, in the arm and also in the distal arm area. There was restriction in movement of the right shoulder, as well as the right elbow. The pain seems to have plateaued, there is some residual weakness and he finds repetitive movement, above head level, causes pain in the right shoulder.”
The Medical Assessor then set out details of Mr Slade’s general health, work history and the impact of his injury on his social activities and activities of daily living (ADL’s). He said, as regards the latter: “There seems to be no major issues except when using the right arm in the above shoulder level, for prolonged periods.”
Findings on physical examination were reported as follows:
“On inspection, there is a mild degree of muscle wasting on the right side. Both the right shoulder and right elbow demonstrate restriction of movement. There is no element on instability, whether in the shoulder or in the elbow, both remain mildly stiff but not unstable. There is no features to suggest apprehension sign and no laxity upon testing the shoulder in various directions, as well as the elbow. The left shoulder and left elbow have full range of movement while the right side is mildly restricted.”
He then tabled the range of movement of the right shoulder he measured and observed.
He then noted the radiological material he had and said:
“MRI Right Shoulder 15 March 2021 – Partial thickness tear of the supraspinatus tendon, severe OA changes of the AC Joint.
MRI 07 October 2021 – No significant changes in the partial thickness tear of the supraspinatus, with a background of mild tendinosis.”
The Medical Assessor summarised the injuries and diagnoses as follows:
“John Slade had a fall, landing on his right shoulder and ended up with stiffness and pain, both in the right shoulder and right elbow.”
The Medical Assessor assessed 8% WPI.
He explained his calculations as follows:
“In relation to the right shoulder, using AMA Guide 5th Edition, Figure 16-40, 43 and 46, 150˚ of flexion is 2% upper limb impairment, 40˚ of extension is 1%, 150 ˚ of abduction is 1%, 30˚ of adduction is 1%, 50 ˚ of external rotation is 1%, 40˚ of internal rotation is 3% so altogether, there is 9% upper limb impairment. In relation to the elbow, using Figure 16-34, 20˚ of extension lag is 2% upper limb impairment, 120˚ of flexion is 2% upper limb impairment so altogether there is 4%. When the two joints are added together, there is a 13% upper extremity impairment which will be equal to 8% whole person impairment.”
He then turned to consider the other medical opinions and evidence and said:
“I cannot agree with Dr Rimmer, I don’t think John demonstrates symmetrical movement between the right and left, in both the shoulder and elbow. He certainly demonstrates loss of movement in the two joints due to the fall on the right upper limb. My examination finding is also different to Dr Patrick, in relation to the right shoulder as his finding was much stiffer than mine. I also cannot agree with him that the patient has ulno-humeral instability as if this is the case, the elbow would be loose and unstable, rather than stiff and sore. That explains the difference from my assessment to Dr Patrick’s and my permanent impairment falls in between Dr Patrick’s and Dr Rimmer’s.”
The appellant’s submissions may be summarised as follows:
(a) the AMA Guides mandate that range of movement (ROM) assessments of the upper extremity require a goniometer or inclinometer must be used and in relation to the elbow, flexion, supination and pronation should all be tested;
(b) the Medical Assessor stated:
“He certainly demonstrates loss of movement in the two joints due to the fall on the right upper limb. My examination finding is also different to Dr Patrick, in relation to the right shoulder as his finding was much stiffer than mine. I also cannot agree with him that the patient has ulno-humeral instability as if this is the case, the elbow would be loose and unstable, rather than stiff and sore”;
(c) there is no mention of the Medical Assessor undertaking appropriate examination of the right shoulder and elbow in that he failed to either (unlike Dr Patrick) test the right shoulder with the (mandatory) goniometer and/or undertake proper examination of the right elbow to ascertain its calibration and/or instability (via means of flexion, supination and pronation testing;
(d) Dr Patrick found evidence of right elbow instability;
(e) the Medical Assessor found no evidence of instability but it is not apparent from the MAC that the Medical Assessor conducted any of the tests referred to above;
(f) the WPI assessment has not taken into account the right elbow, and
(g) the Medical Assessor has not provided reasons as to why his opinion differs from that of Dr Patrick.
To begin with, although the Medical Assessor did not specifically state that he used a goniometer, he obviously did in order to assess ROM and other features.
The Guidelines state that such testing is to be conducted “where clinically indicated”.
In other words, there is no “mandatory” requirement as the appellant submits.In any event, the Medical Assessor, in our view, conducted a detailed and thorough examination as set out under his “findings on examination”.
Dr Patrick found right elbow instability referred to as: “…Probably more ulno-humeral rather than entire elbow. This is readily demonstrated with positive upper body sway test”.
However, there is no great detail as to what he found, not are there any investigations of the right elbow. In addition, Dr Patrick did not specify any specific WPI in respect of the right elbow. His assessment of WPI of the “right upper extremity” was 14%.
As the respondent pointed out: “there is no clinical or evidentiary basis on special investigations to support Dr Patrick’s conclusion as to instability in the right elbow”.
We are not aware of the sway test for ulna collateral instability - it is usually assessed at arthroscopy when the ulna-collateral ligament integrity is tested. Usually the ulna humeral joint only opens up by 1mm with valgus stress - to be more would suggest a complete tear of the ligament.
It is usually associated with a fall occasioning dislocation of the elbow and recurrent dislocation is rare.
The Medical Assessor set out the difference in his assessment to Dr Patrick noting that
Dr Patrick found the right shoulder to be stiffer than the assessment made by Medical Assessor. Further the Medical Assessor states that he could not agree with Dr Patrick that the appellant had ulno-humeral instability as if this was the case the elbow would be loose and unstable rather than stiff and sore.This is correct.
Chapter 1.6 of the Guidelines sets out the principles of assessment. The importance of the exercise of clinical judgment by the Medical Assessor in the process of assessment was reported by the Supreme Court in Glenn William Parker vSelect Civil Pty Limited [2018] NSWSC 140:
“In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 where it stated at [33]: ‘the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face…”
Dr Patrick assessed Mr Slade on 12 August 2022. The Medical Assessor’s assessment was conducted on 3 July 2023, almost one year later.
The appellant’s submissions essentially focus on the opinion of Dr Patrick. A mere difference of opinion is not a proper basis for appeal.
In summary, the appellant seems most concerned that the Medical Assessor’s assessment “denied the appellant the opportunity to secure lump sum compensation” for the “significant trauma sustained to his right upper extremity…”
Again, that is not a proper basis for appeal.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 July 2023 should be confirmed.
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