Socrates Distributors Pty Limited v Adaymie
[2022] NSWPICMP 392
•10 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Socrates Distributors Pty Limited v Adaymie [2022] NSWPICMP 392 |
| APPELLANT: | Socrates Distributors Pty Limited |
| RESPONDENT: | Elie Adaymie |
| Appeal Panel | |
| MEMBER: | Ms Deborah Moore |
| MEDICAL ASSESSOR: | Dr Gregory McGroder |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| DATE OF DECISION: | 10 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION -The appellant submits that the Medical Assessor (MA) erred in relation to the deduction he made for a pre-existing impairment and the loading for activities of daily living (ADLs); the Panel found that the evidence supported the MA’s deduction and that no error was made regarding the loading for ADLs; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 June 2022 Socrates Distributors Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 17 May 2022.
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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (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 WorkCover Medical Assessment Guidelines 2006.
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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
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 MA erred in relation to the deduction he made for a pre-existing impairment and the loading for activities of daily living (ADL’s).
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.
Elie Adaymie (the respondent) was referred to the MA for assessment of whole person impairment (WPI) in respect of the cervical spine, the right upper extremity and scarring (TEMSKI) resulting from an injury on 8 October 2019.
The MA obtained the following history:
“Mr Adaymie delivered beverages and his work was physical.
On 8 October 2019 he was standing on the truck when he slipped and fell to the ground. In the fall he injured his back and left shoulder.
He reported the incident but was able to finish his run although in pain.
He consulted his doctor who prescribed antibiotics as he had an infected abrasion in the left elbow. He was prescribed analgesia for pain in his neck, back and shoulder. As the pain in the neck and back persisted he was referred to Dr Davies for his neck, and Dr Jansen for the shoulder.
He was initially treated conservatively including cortisone injections, both to the neck and shoulder. Surgery was recommended by both consultants, and on 26 October 2020 he had a left C6/7 foraminotomy, exterior tactic C6/lateral mass internal fixation and fusion as per the operative report of that date.
On 26 June 2020 he had a right shoulder arthroscopy, sub-pectoral biceps tenodesis, decompression and AC joint resection as per the operative report. Post-operatively he attended physiotherapy, hydrotherapy and did exercises.”
Present symptoms were noted as follows:
“He complains of constant pain and tightness in the right side of the neck. The neck is restricted. Driving and sitting for long periods aggravates his neck. He complains of intermittent pins and needles affecting the index and middle finger.
He complains of right shoulder pain. The pain wakes him at night.”
When asked regarding ”Details of any previous or subsequent accidents, injuries or condition” the MA said:
“In 2010 he injured his neck and in 2011 he had surgery. I note the operation report of 2011: C6/7 anterior discectomy plus fusion and bone graft.
He states he fully recovered after the operation.
In 2016 he injured his lumbar spine where he had a fusion.
There is no history of any previous right shoulder injury or problem.”
The MA added:
“He now works as a sales representative…
He works out in his home gym and swims. He has difficulty doing physical work.”
Findings on physical examination were reported as follows:
“Examination of the neck reveals a 7 x 0.3cm surgical scar. The scar is pale and hypertrophied. In the right shoulder there is a 4cm surgical scar with mild keloid formation. The scar is pale. Arthroscopic stab wounds are also noted.
The neck is held in normal posture. There is discomfort in the thoracic area. The neck is restricted.
The right shoulder was tender whilst there was no tenderness in the left shoulder. There is no obvious wasting of the shoulders.
The left shoulder has a normal range of movement whilst the right shoulder is restricted.
Sensation was normal in both arms as was power. Reflexes were normal and symmetrical (biceps, triceps and supinator jerks).”
The MA then turned to consider the radiological reports he had before him.
He summarised the injuries and diagnoses as follows:
“Mr Adaymie sustained injuries to the neck, right shoulder and back when he fell off the side of the truck. He had right rotator cuff repair and revision surgery at C6/7 where he previously had a discectomy and fusion.
He presents in a genuine manner and there were no inconsistencies.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA replied: “Yes – cervical spine.”
The MA assessed total WPI of 26%. He explained his calculations and reasons as follows:
“I assess 5% right upper extremity impairment due to the restricted shoulder movements (see 10b). He had resection of the distal clavicle which equates to 5% upper extremity impairment (see 10b). The combined impairment is 10% upper extremity, which equates to 6% WPI.
He had a cervical fusion and falls into DRE Cervical Category IV (see 10b). ADLs are affected but he is independent in self-care. There is normal neurology and no other impairments for modifiers for DRE Categories following surgery (see 10b).
I assess 27% whole person impairment.
The claimant had previous neck surgery at the same level for which he tells me he received a settlement. He was assessed at 25% WPI following the injury in 2011 as per MAC dated 26/2/2013. No ADLs were attributed to the neck injury, so no adjustment is necessary (see 10b).
A deduction is applicable for pre-existing condition as he had a fusion at the same level previously. In my opinion the previous fusion is a component of the current impairment. Guided by the history where the claimant fully recovered and subsequently worked doing physical jobs without any problems, I have deducted one-quarter for the pre-existing condition. This equates to 6.75%. He therefore has 20.25% WPI as a result of the subject accident which rounds off to 20%.
He has surgical scars which are easily located. There is colour contrast, trophic changes and mild keloid formation. The scars are visible with usual clothing. Under the best-fit principle of the TEMSKI classification I assess 1% whole person impairment.”
The MA then turned to consider the other medical opinions stating:
“I note the report of Dr Bodel dated 21 October 2021. I note this examination was conducted by video conference. I found a better range of movement than that recorded by Dr Bodel. I note Dr Bodel does not assess the excision of the distal clavicle.
I found the same DRE Category and WPI for the cervical spine. Dr Bodel based on his history makes no deduction for pre-existing condition.
I found the same impairment for scarring as Dr Bodel.
I note the report of Dr Machart dated 4 January 2022. I found the same impairment for the cervical spine. Dr Machart deducts two-thirds for pre-existing condition. In my opinion the deduction is very high. I have deducted one-quarter (see 10a).
Dr Machart finds symmetrical range of movement of the shoulders and gives no impairment for the right upper extremity due to restricted shoulder movements. I have assessed impairment due to restricted shoulder movements, and like Dr Machart have included the impairment associated with excision of the distal clavicle. I found the same impairment for scarring.”
The MA concluded:
“The worker had a previous fusion of the cervical spine. In my opinion his persistent symptoms in the neck are as a result of the injuries sustained at work and the previous injury. I am of the opinion that the pre-existing condition is a component of the current impairment.
I have deducted one-quarter as outlined under 10a.”
As noted earlier, the appellant submits that the MA erred in two respects, firstly in relation to the deduction he made for a pre-existing impairment and secondly in his loading for ADL’s.
Dealing firstly with the s 323 deduction, the appellant submits as follows:
“The Respondent suffered an injury to his cervical spine in 2011 and required a C6/7 anterior discectomy, fusion and bone grafting. In 2013 he was assessed by an AMS as having 25% WPI for the cervical spinal injury in 2011.
The MA gave a one quarter deduction (i.e. 6.75% WPI) to the assessment of the cervical spine on account of that injury. The Appellant says that the deduction was at odds with the available evidence.
The 2013 MAC is evidence of the actual consequences of the 2011 injury and fusion at C6/7, and the MA is required to have regard to same in applying a deduction to his assessment.
The MA has not provided adequate reasons for making only a one quarter deduction from his assessment in these circumstances.
The Appellant Employer submits that the MA has fallen into error by failing to provide a greater deduction for pre-existing injury, condition or abnormality pursuant to Section 323 of the 1998 Act in the face of evidence of the Respondent’s pre-existing injury and fusion at C6/7, following which he was assessed as having sustained 25% WPI. It is asserted that a much greater deduction of up to 25% WPI should apply to the MA’s assessment.
Alternatively, the Appellant Employer submits that the MA has fallen into error by failing to provide adequate reasons as to why it was not appropriate to provide a greater deduction for pre-existing injury, condition or abnormality pursuant to Section 323 of the 1998 Act in light of the previous assessment of 25% WPI to the cervical spine for fusion at C6/7.
The Appellant Employer notes that the MA does not appear to have considered Macquarie University v Nicol [2018] NSWWCCMA 785 which may be relevant in this matter. We submit that the MA should have expressed a view as to whether the injury on 8 October 2019 would have occurred had the Respondent not been in a physical condition caused by the original accident, or alternatively, whether the damage sustained on 8 October 2019 is greater because of an aggravation of the earlier injury.”
Firstly, we note that the MA clearly considered the evidence of the prior surgery, and set out in some detail the evidence of this, including the radiological material he had before him.
He went on to note that “He states he fully recovered after the operation.”
As the respondent correctly points out:
“The respondent resumed pre-injury duties from about 2011 to 2019 with no restrictions. Further, he was engaging in hobbies and sports such as fishing, rugby, gardening, working out in the gym and swimming. Dr Mastroianni takes that history in relation to the worker’s recovery following the relevant surgery, and following the issuance of the previous MAC.”
The MA added:
“The claimant had previous neck surgery at the same level for which he tells me he received a settlement. He was assessed at 25% WPI following the injury in 2011 as per MAC dated 26/2/2013…
A deduction is applicable for pre-existing condition as he had a fusion at the same level previously. In my opinion the previous fusion is a component of the current impairment. Guided by the history where the claimant fully recovered and subsequently worked doing physical jobs without any problems. I have deducted one-quarter for the pre-existing condition…”
In our view, the MA’s reasons were more than adequate, and set out clearly his “path of reasoning” in making the deduction he did.
We agree with the respondent’s observations that:
“The pre-existing injury did not substantially (our emphasis) contribute to the WPI assessed, based on the evidence.
The subject injury on 8 October 2019 led to a substantial change in the level of symptoms.
The respondent worker was completely incapacitated from work for a period of between 1.5 – 2 years from the date of the subject injury.
Between 2014 and 2014, the respondent worker worked as a mechanical repairer detailing cars at a Miller Road Service Centre in Chester Hill.
From 2015 to 2017, the respondent worker worked at A Civil Australia as a Site Supervisor on a permanent full-time basis.
In 2018, the respondent worker joined QANTAS Jet Transport as a casual and performed duties such as driving trucks around the airport…
There was a lengthy period of about eight years between the previous surgery and the subject injury and, during that period, the respondent worker maintained period of full-time employment, engaging in manual labour without restrictions.”
Chapter 1.6 of the Guidelines sets out the principles of assessment. As the respondent again correctly points out:
“The importance of the exercise of clinical judgment by the MA 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…”
In our view, the MA clearly stated that his opinion “is based on the clinical history obtained, my findings on clinical examination, examination of the investigations and reports thereof, as well as my review of the accompanying documents.”
He also explained why he disagreed with the opinion of Dr Machart.
We do not agree with the appellant’s submission regarding the relevance of Macquarie University v Nicol [2018] NSWWCCMA 785. The MA was required to assess impairment taking into account any pre-existing injury or condition in accordance with the terms of the referral.
This he did, and explained why the pre-existing injury did indeed play some part in the respondent’s condition such that some deduction was appropriate.
We cannot see any error in the deduction he made, nor did he fail to provide adequate reasons.
Accordingly this ground of appeal must fail.
Turning now to the issue of any loading for ADL’s, the appellant submits as follows:
“In the previous MAC, Dr Crane gave a 1% loading for interference with ADLs caused by the lumbar spinal injury.
In this MAC, the MA assessed 27% WPI to the cervical spine based on DRE Category IV, inclusive of 2% WPI for impact on ADLs, noting that the Respondent was independent with self-care.”
On our reading of the MAC, there is nothing to suggest that the MA “included” 2% for ADL’s.
The MA has assessed the injury as falling within DRE Cervical Category IV, which allows a WPI assessment of between 25% and 28%. The MA provided a WPI of 27% for the cervical spine, which is within the limits prescribed by the Guidelines.
Again, we cannot see any error in the MA’s overall assessment, and for the reasons set out above, this ground of appeal also fails.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 May 2022 should be confirmed.
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