Slade v Woolworths Ltd
[2024] NSWPICMP 692
•3 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Slade v Woolworths Ltd [2024] NSWPICMP 692 |
| APPELLANT: | Beverly Slade |
| RESPONDENT: | Woolworths Limited |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 3 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of the upper extremities; worker appealed submitting insufficient findings and inadequate reasons for failing to assess the elbows; the Medical Appeal Panel (Panel) found error and a re-examination was considered necessary in the circumstances; Held – applying the correct criteria to the findings of Medical Assessor who conducted the re-examination, the Panel found that there is no rateable impairment for the elbows. MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
Ms Beverley Slade (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 March 2024.
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.
The appellant requested that she be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
As a result of its preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel found error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
Further medical examination
Medical Assessor Doron Sher of the Appeal Panel conducted an examination of the worker on 23 July 2024 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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 matter was referred by the Personal Injury Commission to the Medical Assessor as follows:
The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 01/07/20 (deemed)
· Body parts / systems referred: Left upper extremity (CTS and elbow)
Right upper extremity (CTS and elbow)
· Method of assessment: Whole Person Impairment
The Medical Assessor issued a MAC as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Left upper extremity (CTS and elbow) | 01/07/20 (deemed) | Chap 2 P 10 | P 495 Carpal Tunnel Notes | 3 | 0 | 3 |
| Right upper extremity (CTS and elbow) | 3 | 0 | 3 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 6 | |||||
The worker appealed. The complaint on appeal is in respect of the elbows and there is no complaint about the assessment of CTS for each extremity at 3% WPI.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error for reasons which included the following:
(a) failed to assess the elbows in accordance with the Guidelines, and
(b) the examination and reasoning were inadequate.
In summary, the respondent Woolworths Limited (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the appeal should be dismissed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a medical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied.
The Medical Assessor recorded the following history:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Slade related that she had been working at a service station. A lot of this work involved stocktaking with filling shelves and cleaning. She was always under a great deal of pressure. As she continued to do this, she was aware of pain in both wrists and at that stage, to a lesser extent her elbows.
She saw her doctor and was referred to Specialist Orthopaedic Surgeon, Dr Mark Rice in Dubbo. A diagnosis of carpal tunnel syndrome was established. This included nerve conduction studies where the right side was more severely affected than the left.
A decompressive procedure was conducted on the right side on 19/09/19. A similar procedure was conducted on the left on 03/03/20. This only gave her limited subjective improvement.
One of her main concerns had been dropping items. Unfortunately, this continued.
Present treatment:
Her only clinical management at the moment is taking over the counter paracetamol.
· Present symptoms:
Cold climatic conditions make the condition worse on each side. There is pain in the volar surface of both wrists. At the moment on the left side, this is more severe than on the right. She describes that she has altered sensation in the middle, ring and little fingers. Unfortunately, the dropping of items (for example her mobile telephone) tends to continue.
· Details of any previous or subsequent accidents, injuries or conditions:
Aches and pains in the elbows have been described, possibly with some irritable features of the ulnar nerve, although this has never been unequivocally demonstrated. There was a brief written comment in the file that there had previously been surgery for carpal tunnel syndrome, although I could find no detail of this.
· General health:
She takes medication for the control of a thyroid condition and also raised cholesterol.
· Work history including previous work history:
This lady has always worked as a support worker, assisting other people. She is continuing to do this but now her hours have been reduced down to 25 to 30 hours a week. This is usually assisting her people to go to different appointments and to give general company. Occasionally she will do some light physical tasks, such as helping with washing up.
· Social activities/ADL:
Ms Slade has a de facto husband. There is a son of 42 and three daughters of 38, 37 and 34. All are understood to be fit and well and have left home. Ms Slade lives in Wellington and her partner lives in Orange. When she travels to Orange, which is quite frequently, she normally stays with him.
She is a non-smoker and non-drinker.
She tries to do some cautious stretching throughout the day. In years gone by she was keen on metal detecting but feels that she cannot do this now. She has a couple of small dogs that she looks after. She occasionally does some driving but finds this very difficult. She described that she does her housework by short, intermittent instalments. This includes cutting the grass, although this is particularly difficult.”
The Medical Assessor made the following comments in relation to special investigations:
DATE
INVESTIGATION
RESULTS
04/01/19
Ultrasound scan right hand
Dupuytren's contracture. Ring finger tendon partial thickness tear.
17/05/19
Nerve conduction studies
Carpal tunnel syndrome bilaterally. The right side is more severely affected.
16/12/20
Minor right sided carpal tunnel syndrome.
19/04/21
Ultrasound scan right wrist
No significant features.
31/01/22
Ultrasound scan elbows
21/02/22
Nerve conduction studies
His examination findings were as follows:
“Ms Slade was towards the lower end of average stature with a height of 1.63m. Her weight was 80kg. With these parameters, she currently has a body mass index of 30. This is just at the technical category of ‘obese’. The upper level of healthy BMI is 25. In order to achieve this, she should strictly be no more than 66kg. She was in moderate discomfort.
Cervical Spine. There was no complaint of pain in the neck, nor was there any tenderness. Forward flexion and lateral rotation to the left were normal. Lateral rotation to the right was slightly reduced to two-thirds of the range. Extension and lateral flexion to each side were all reduced to half the normal range.
No significant features were identified with the shoulders. At the elbows, there was mild cubital tenderness on the left side. There was also mild lateral epicondylitis on the left. There were no such features on the right.
The Tinel’s assessment of carpal tunnel syndrome was conducted very gently. This demonstrated a mildly positive reaction on the right and a stronger reaction on the left.
One factor which was very obvious was Dupuytren's contracture bilaterally.
Reflexes were present, although particularly difficult to demonstrate, especially the C5 reflex at the flexor elbow.
I was unable to convincingly demonstrate any neurological dysfunction. In general, pinprick sensation seemed to be rather patchy and inconclusive.”
The Medical Assessor summarised the injury and diagnosis as follows:
“Summary of injuries and diagnoses:
Ms Slade gives a history of developing carpal tunnel syndrome and probably other strain features affecting both of her arms. At the time when this started, she was carrying out a lot of physically arduous work. She was also under a lot of pressure to perform. It is certainly a possibility that her occupation would have resulted in strain conditions of upper limb joint structures. Earlier on, it was identified that she had carpal tunnel syndrome, which was managed surgically. This seemed to give her limited improvement. Historically and clinically this condition returned, although neurologically (by nerve conduction studies) it was never effectively demonstrated subsequently. Similarly, no significant features with the ulnar nerve at the cubital tunnel were ever demonstrated.
The situation has been further complicated by the existence of Dupuytren's contracture bilaterally. At this assessment, there was also evidence of mild (very mild) lateral epicondylitis on the left. Nevertheless, no significant neurological features were able to be demonstrated.
Therefore, Ms Slade has experienced bilateral carpal tunnel syndrome, which appears to have been satisfactorily addressed surgically although has been left with continuing associated relatively minor dysfunction. No further specific neurological feature has been demonstrated.
· Consistency of presentation:
Ms Slade’s presentation was completely consistent.”
The Medical Assessor explained his assessment of permanent impairment as follows:
“9. THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment:
Detailed review of the file.
Detailed clinical assessment.
Review of the quite extensive investigations.
10.REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment:
FACTOR
% WPI
Left upper extremity (CTS and elbow)
3
Right upper extremity (CTS and elbow)
3
b. An explanation of my calculations:
This has been a particularly complex case to try to run to earth and to provide a fair and reasonable whole person impairment for Ms Slade. It is obvious that each arm is certainly not normal, although it is equally obvious that there is very little in the way of severe continuing pathology. I am therefore directed to Page 495 in AMA 5 with specific notation about carpal tunnel. Although this is not exactly the features demonstrated, it looks as though note 2 is likely to be the most accurate that we are going to find in her rather complex circumstances. This, therefore provides 5% upper extremity impairment bilaterally. This is converted to WPI on Page 439, Table 16-03 with 3% bilaterally.”
The Medical Assessor explained where his opinion differed from other medical opinion as follows:
“Specialist Orthopaedic Surgeon, Dr James Bodel in his series of reports from 28/01/22 through to 03/08/23 assesses a combined whole person impairment of 19%. With great respect, I am unable to demonstrate this quite large whole person impairment with the features with which Ms Slade currently presented.
Specialist Neurologist, Dr Alun Krishnan advised that there was no neurological evidence of medial or ulnar nerve dysfunction and therefore, he was unable to provide a whole person impairment. This is effectively the situation with which I was confronted. Nevertheless, as I have already mentioned, regardless of the specialist techniques of demonstrating nerve conduction studies or otherwise, Ms Slade’s wrists (particularly) are still not normal, certainly from a functional perspective, hence my stance at providing as far as I possibly could, a fair and reasonable assessment of WPI from AMA 5 Page 495.”
The Medical Assessor made no deduction under s 323 and there is no complaint about this aspect on appeal.
Contrary to the submission of the respondent, it cannot be determined from the examination findings recorded by the Medical Assessor whether or not the criteria for rating impairment of the elbows have been correctly applied.
In these circumstances error was found because of an inadequate path of reasoning and a re-examination was considered necessary.
In the circumstance of a finding of error, the Appeal Panel considered that a re-examination of the worker was necessary and Dr Doron Sher a Medical Assessor who was also a member of the Appeal Panel was appointed to conduct the re-examination of the appellant and report to the Appeal Panel.
Medical Assessor Doron Sher conducted the examination on 23 July 2024 and reported to the Appeal Panel as follows:
“RE: Ms Beverley Slade DOB: xxxx
Matter number: W975-24 – Date OF ASSESSMENT: 23/7/2024
Ms Slade was identified by her New South Wales Driver’s Licence. She attended alone.
Her history did differ somewhat from the MAC dated 28/3/2024 from Dr Tim Anderson. She stated that her right carpal tunnel decompression was in November of 2019 (not in September of 2019) with a correct date being supplied of the left side being March of 2020. Symptoms relating to the elbows have been quite variable and her current symptoms have been present for approximately 6 to 7 months. The patient had multiple complaints of pains around the elbow. Her principal issue now is a constant “itch” over the lateral aspect of the radiocapitellar joint which she has been told is a nerve problem. She also feels that her symptoms match well with the diagnosis of lateral epicondylitis that she googled on the internet. The itchy sensation does go up onto the posterior aspect of her arm and triceps and down towards the olecranon. She has a similar but less severe pain on the right side.
Her principal pain is in the volar aspect radiating down from the central part of the forearm at the distal biceps insertion towards the wrist. This has also been present for approximately 6 months. The pain is present both at rest and with activity and occasionally wakes her. She mainly sleeps on her left side and feels that the left arm can go numb because of it.
She has also noted that she is dropping objects such as her phone and pieces of paper but it seems that this is more from her hand than from the elbows.
The patient also has attended for recent nerve conduction studies on 5/7/2024.
The patient also relates some itchiness in her neck on the left side near her “jugular vein” which she also feels relates to nerve compression.
3 weeks ago the ulnar 3 fingers on her right hand felt cold in the very cold weather but this seems to have settled. She is unable to keep either elbow flexed for a long period of time because it then feels tired and she has to straighten them out.
Ms Slade has not had physiotherapy for her elbows.
Her clinical examination showed tattoos on both volar forearms. Her carrying angle was normal and symmetrical and she had unrestricted range of motion of both elbows into flexion, extension, pronation and supination being measured with a goniometer with 0 to 145 degrees of flexion and 90 degrees of pro/supination.
Examination to palpation was challenging because she had significant hypersensitivity throughout the elbow. She was tender at the epicondyles, radiocapitellar joint, the biceps and olecranon but there was no one spot that was more tender than any other. This was symmetrical in both of her elbows. Performing a Tinel’s test of her ulnar nerve created electrical shocks shooting down the volar forearm from the distal biceps down to the wrist. It certainly did not follow the ulnar nerve pattern. This was again present in both elbows. There was no instability and with some encouragement flexion and extension power were symmetrical and within normal limits. Resisted extension and flexion testing looking for epicondylitis was negative.There was no range of motion loss, no instability, no muscle or tendon injury and no neurological injury present at or around the elbow. While there was hypersensitivity, no rateable impairment could be established from her clinical examination.”
The Appeal Panel considers that Medical Assessor Doron Sher has conducted a thorough examination and the Appeal Panel adopts the findings of Medical Assessor Sher on re-examination.
Applying the correct criteria to the findings of Medical Assessor Doron Sher, the Appeal Panel finds that there is no rateable impairment for the elbows and this means that the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 March 2024 should be confirmed.
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