Songbird Homes Pty Ltd v Anderson
[2024] NSWPICMP 484
•18 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Songbird Homes Pty Ltd v Anderson [2024] NSWPICMP 484 |
| APPELLANT: | Songbird Homes Pty Ltd |
| RESPONDENT: | Sarah Anderson |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 18 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; respondent suffered injury to her right upper extremity; appellant’s section 78 notice particularised the injury as including a superficial injury to the respondent’s shoulder and did not notify the respondent in its notice that there was any dispute about this; respondent relied on IME report which did not assess the respondent with any impairment relating to her right shoulder; the Medical Assessor (MA) assessed the respondent’s permanent impairment to include a component relating to the restricted range of movement in the right shoulder; whether the medical dispute that was referred to the MA required an assessment of impairment that the respondent had due to restricted range of movement of her right shoulder; Held – the Medical Appeal Panel held it did; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 May 2024 Songbird Homes Pty Ltd, 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 2 April 2024.
The appellant relies on the following ground for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for 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 employed Sarah Anderson, the respondent, as a disability support worker. Her employment commenced in June 2021.
On 6 July 2021 the respondent was assaulted by one of the clients of the appellant. In a statement she signed on 2 March 2023 she described feeling intense pain in her neck, both shoulders, rib cage, right arm, right hand and right elbow immediately upon being assaulted.
On 30 September 2022 the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from her injury. In the letter the respondent’s solicitors advised that the degree of the respondent’s permanent impairment from her injury was of the order of 17% whole person impairment (WPI) and related to the respondent’s “right upper extremity, left upper extremity and TEMSKI scarring”.
The respondent’s solicitors enclosed with their letter a copy of a report from orthopaedic surgeon Dr Murray Hyde Page dated 12 September 2022 to support the respondent’s claim. Dr Hyde Page, who had examined the respondent on 12 September 2022, provided the following “diagnosis, opinion & prognosis” in his report:
“Sarah Anderson, who is 37 years of age, suffered significant injury to her right arm and hand on the 6 July 2021 when she was attacked by one of her residents while working as a disability support worker. She was continually hit and punched for up to ten minutes. As a consequence of this, she suffered bruising and swelling around her right elbow and right hand. Her right hand settled down satisfactorily. However, the injury around her right elbow, where she had bruising and swelling, resulted in her developing acute ulnar neuritis and general neuropathic pain involving the whole of the right upper limb.
The injuries have had a major impact on the function of her dominant right upper limb. To all intents and purposes, she has very minimal function and use of her dominant right hand with all activities. Although, she suffered a recent motor vehicle accident a few weeks ago, she did not suffer any aggravation to symptoms in her right upper limb and these are purely a consequence of the assault she suffered on the 6 July 2021. I should also add that, although she had had a previous right ulnar and carpal tunnel release in 2018, she had made a complete recovery and had normal right upper limb until the assault on the 6 July 2021.
Therefore, in summary, as a consequence of being assaulted at work by a client on the 6 July 2021, Sarah Anderson has severe neuropathic pain affecting her dominant right upper limb and hand associated with right ulnar neuritis causing numbness, muscle wasting and weakness in her hand.”
Later in his report, Dr Hyde Page advised that the respondent had, as a consequence of the assault on her on 6 July 2021, developed a right ulnar neuritis and generalised neuropathic pain with some elements of complex regional pain syndrome. Dr Hyde Page noted that at the time he assessed the respondent she did not meet “the criteria to give a diagnosis of complex regional pain syndrome and she had no dysesthesia, abnormal sweating or colour changing”. The Appeal Panel infers that Dr Hyde Page’s reference to “criteria” is a reference to the criteria specified in Table 17.1 of the Guidelines.
Apropos the appellant’s appeal against the MAC, Dr Hyde Page also noted that on examination he found both the respondent’s shoulders were normal with a full range of movement.
Dr Hyde Page advised that, with respect to the respondent’s right upper extremity, he assessed the respondent had 16% WPI from her injury. He explained he computed that on the basis that he assessed the respondent had 17% upper extremity impairment by reference to the criteria of Table 16-10 of AMA 5 for sensory deficit due to numbness and severe dysesthesia. He explained he assessed the respondent had 18% upper extremity impairment by reference to the criteria of Table 16-15 of AMA 5 and Table 16-11 for motor deficit. He explained he assessed the respondent had 2% upper extremity impairment due to restricted movement of her elbow. He explained that those impairments combined to 26% upper extremity impairment which converted to 16% WPI.
Dr Hyde Page also advised in his report that that assessed the respondent had 1% WPI for scarring the respondent had as a consequence of right elbow surgery. Thus, when he combined that with the 16% WPI, Dr Hyde Page assessed the respondent had 17% WPI from her injury.
To respond to the respondent’s claim the insurer organised for the respondent to be examined by orthopaedic surgeon Dr Stuart Riley on 14 December 2022. In a report of 7 February 2023 Dr Riley detailed the documents he had viewed to prepare his report. These included several reports from the respondent’s general practitioner, Dr Thorvaldson, and also reports from specialist pain physicians who had treated the respondent, namely Dr Simon Tame and Dr John Prickett.
The Appeal Panel observes that one of the reports of Dr Thorvaldson that Dr Riley reviewed was dated 7 October 2021 and addressed to Dr Andre Loiselle. In that Dr Thorvaldson recorded that in the assault in July 2021 the respondent possibly suffered a fracture to her rib and hand as well as suffering a soft tissue injury to her neck and shoulder, with her elbow becoming increasingly painful with numbness and tingling radiating down the ulnar to her digits.
The Appeal Panel also notes that one of the reports of Dr Tame that Dr Riley reviewed was dated 31 January 2022 addressed to Dr Thorvaldson. In that Dr Tame described the respondent had reported she had suffered right sided neck, shoulder and arm pain as a result of the assault on her.
Dr Riley noted in his report that the incident in which the respondent sustained injury on 4 July 2021 involved the appellant’s client repeatedly striking the respondent over her right scapular, shoulder and entire right upper extremity. Dr Riley also noted that the respondent reported that on 18 August 2022 she was involved in a motor vehicle accident, following which she was taken by ambulance to John Hunter Hospital where she was admitted for four to five days. Dr Riley noted that the respondent reported that the motor vehicle accident caused a “whiplash type mechanism of her neck causing posterior cervical pain”. Dr Riley noted that the respondent stated that her only injury in the accident was a seat belt bruising and that the respondent considered that the motor vehicle accident had not aggravated her right upper extremity and that her symptoms in her right arm and elbow were pre-existing and unrelated to the motor vehicle accident.
Dr Riley found from his examination of the respondent that she had mild restriction of end range shoulder movement on the right side when compared to her left side but Dr Riley considered that symptoms the respondent had in her right shoulder were a consequence of the motor vehicle accident on 18 August 2022 and not the work injury on 4 July 2021.
Dr Riley advised he assessed the respondent had 5% upper extremity impairment due to loss of motion of her right elbow, 7% upper extremity impairment due to sensory loss at her elbow, and 1% upper extremity impairment due to motor loss of her elbow. He advised that those impairments combined to 19% upper extremity impairment which converted to 11% WPI. He added 1% WPI for scarring such that he assessed the respondent had an overall impairment of 12% WPI. He considered that 10% of that WPI was due to a pre-existing ulnar neuritis and that 30% was due to the subsequent motor vehicle accident in which the respondent was involved on 18 August 2022 such that he assessed the degree of the respondent’s permanent impairment from her injury on 4 July 2021 was 8% WPI.
On 14 February 2023 the insurer wrote to the respondent to notify her in accordance with s 78 of the 1998 Act, that it disputed it was liable to pay her compensation for permanent impairment from her injury. It described her injury in that notice in these terms:
“Fracture of one rib; fracture at wrist and hand; superficial injury of shoulder and upper arms; superficial injury of unspecified part of neck”.
It advised her its reason for denying liability to pay her compensation for permanent impairment was because she did not exceed the threshold of more than 10% permanent impairment required by s66(1) of the 1987 Act for her to be entitled to receive compensation for permanent impairment.
On 19 May 2023 the respondent, through her solicitors, lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (ARD) seeking determination of her claim for compensation from the appellant.
An issue arose between the parties regarding how the medical dispute was to be described in the referral to the Medical Assessor, with the respondent contending that the body part to be referred for assessment be described as the right upper extremity and the appellant contending that it should be limited to the respondent’s right elbow and scarring. The Commission referred the matter to one of its members, namely Mr Michael Wright, to resolve that dispute. On 4 August 2023 Member Wright issued the following directions:
“The Commission directs:
1. Application amended to amend date of injury to be 4 July 2021.
2. Matter remitted to the President for referral to a Medical Assessor (MA) pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows:
a.Date of injury: 4 July 2021 – personal
b.Body systems/parts:
i.Right upper extremity
ii.Scarring/TEMSKI
c.Method of Assessment: Whole person impairment
3. The documents to be reviewed by the MA are:
a.Application and attached documents, and
b.Reply and attached documents.
4. By 30 August 2023, respondent to lodge and serve supplementary report of Dr Riley.
5. Examination by the MA not to be before 13 September 2023.
6. It is noted that the parties agree that the date of injury is 4 July 2021 and any reference to injury on 6 July 2021 should be taken to be refer to injury on 4 July 2021.
Reasons
7. The parties were unable to reach agreement as to the terms of the referral to the MA, with respect to the right upper extremity. After submissions by the parties, an oral ex tempore interlocutory decision was given at the preliminary conference on 2 August 2023, with reasons recorded.”
A delegate of the President of the Commission thereafter duly issued a referral to the Medical Assessor in accordance with the directions of Member Wright.
The Medical Assessor examined the respondent on 13 February 2024 to conduct the assessment of the medical dispute referred to him.
The Medical Assessor recorded in the MAC that the respondent reported symptoms of ongoing pain in her neck radiating down her arm and at the inner aspect of the right forearm and a complete loss of sensation in her hand some two to three times a day. Relevant to the appellant’s appeal against the MAC, the Medical Assessor recorded in the MAC the range of movement he found the respondent had of her shoulders. The Appeal Panel notes that those findings reveal that the respondent’s movement of right shoulder was restricted compared to her left shoulder.
The Medical Assessor assessed the respondent had 4% upper extremity impairment due to restricted movement of the right shoulder. He assessed she had 3% upper extremity impairment due to restricted movement of her elbow. He assessed she had 7% upper extremity impairment due to sensory deficit in the ulnar nerve above her mid forearm. He assessed she had 12% upper extremity impairment due to a motor deficit of her ulnar nerve above her mid forearm. He noted that those combined to 23% upper extremity impairment which converted to 14% WPI. He considered the respondent had a pre-existing right ulnar neuropathy and right carpal tunnel syndrome and that a proportion of her 14% WPI was due to that, for which he made deduction under s 323(1) of the 1998 Act of 10%, such that he assessed the respondent had 13% WPI relating to her right upper extremity from her injury. He also assessed the respondent had 1% WPI for scarring. He accordingly certified he assessed the degree of the respondent’s permanent impairment from her injury was 14% WPI.
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 respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established the ground for appeal on which it relied, and consequently there was no reason for the Appeal Panel to examine the respondent.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
EVIDENCE
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 submitted that the Medical Assessor made an error by including in his assessment of the respondent’s degree of permanent impairment from her injury a rating for the impairment the respondent has due to the restricted range of movement of her right shoulder. The respondent submitted the error arose because the Medical Assessor assessed a matter that was not within the ambit of the medical dispute between the parties.
The appellant submitted that it was not notified of a right shoulder injury having occurred on 4 July 2021and did not determine liability for a right shoulder injury. The appellant submitted that in accordance with Skates v Hills Industries Ltd [2] the medical dispute between the parties that the Medical Assessor was required to assess was limited to the degree of permanent impairment of the respondent relating to her right elbow, right ulnar nerve (sensory motor impairment) and TEMSKI scarring injury.
[2] [2021] NSWCA 142 (Skates).
In reply, the respondent submitted that the Medical Assessor did not act beyond the scope of the referral because the referral required the Medical Assessor to assess the degree of her permanent impairment relating to her right upper extremity and did not limit the body parts within her right upper extremity that had to be assessed. The respondent submitted that Member Wright on 2 August 2023 specifically rejected the appellant’s submission that the referral to the Medical Assessor should be limited to her right elbow and ulnar neuritis and TEMSKI scarring and determined that her whole right upper extremity was to be the subject of the referral to the Medical Assessor. The respondent contended that Skates is distinguishable from her circumstances. The respondent submitted that there were numerous references to symptoms in her right shoulder in evidence before the Medical Assessor. The respondent also highlighted that the appellant’s insurer in its s 78 Notice identified that her injury included a superficial injury of her shoulder and upper arm.
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.
The Appeal Panel does not accept the appellant’s submission that the Medical Assessor was limited to assessing the degree of the respondent’s permanent impairment from her injury by considering the impairment the respondent had relating to her right elbow including the restricted range of movement of her elbow and the sensory motor deficits of her ulnar nerve, and scarring. In the Appeal Panel’s view, Skates does not assist the appellant, and indeed supports the respondent’s case. What was decided in Skates is that a medical dispute between parties is crystallised by the correspondence attached to a worker’s Application to Resolve a Dispute lodged with the Commission.[3] Here, the correspondence attached to the respondent’s ARD reveals that the injuries suffered on 6 July 2021 affected her right shoulder. That is apparent from the report of Dr Thorvaldson to Dr Louiselle dated 7 October 2021 and the report of Dr Tame to Dr Thorvaldson dated 31 January 2021. It was noted in both those reports that the respondent had symptoms in her right shoulder consequent upon her injury.
[3] Skates at [46]; see also Klement v Bull “N” Bush Nurseries Pty Ltd [2024] NSWSC 466 (Klement) at [9].
The insurer provided Dr Riley copies of those reports. Consequently, Dr Riley was aware that the respondent complained of right shoulder symptoms following her injury. Dr Riley found that the respondent had mild restriction of movement in her right shoulder when he examined her. Dr Riley specifically considered whether that impairment of the respondent was a consequence of her work injury or the subsequent motor vehicle accident in which she was involved, and concluded the impairment was due to the motor vehicle accident and not the respondent’s work injury.
The fact that the respondent’s injury on 6 July 2021 included her right shoulder is also apparent from the notice the insurer issued to the respondent under s 78 of the 1998 Act in that the description the insurer provided of the respondent’s injury in that notice included a superficial injury of her shoulder. The insurer did not in that notice inform the respondent that it disputed her injury involved her shoulder. It is consequently implicit from that, that it accepted her injury from the assault on her on 6 July 2021 involved her shoulder.
It is important to observe too that Dr Hyde Page when he examined the respondent on 2 September 2021 found that the respondent did not have any impairment of her right shoulder and hence the reason why Dr Hyde Page’s assessment of the degree of the respondent’s permanent impairment from her injury did not include any component relating to her right shoulder.
The medical dispute between the parties that the Medical Assessor was required to assess, consistent with the direction Member Wright made, was the degree of the respondent’s permanent impairment from the injury to her right upper extremity on 6 July 2021. That injury included her right shoulder, given that she suffered symptoms in her right shoulder from the injury. Dr Hyde Page at the time he examined the respondent found that she did not have any impairment relating to her right shoulder. Dr Riley found that she did but did not attribute that to the injury the respondent suffered on 6 July 2021.
It is beside the point that both the qualified medical examiners did not assess the degree of the respondent’s permanent impairment from her injury included any component relating to her right shoulder. This is because the injury the respondent suffered on 6 July 2021 included her shoulder and the medical dispute that was crystalised by the correspondence between the parties related to the degree of the respondent’s permanent impairment from that injury. It was for the Medical Assessor to form his own view regarding what impairment the respondent had from that injury based on the history he obtained, which included the respondent having symptoms of pain from her neck to her forearm, and his findings from examination, which included restricted movement of her right shoulder. He was not bound to adopt the finding of Dr Hyde Page that the respondent had a normal right shoulder. He was not bound by the opinion of Dr Riley who considered that the restricted movement of the respondent’s right shoulder was due to her motor vehicle accident and not her work injury. The Medical Assessor was required to form his own view on that.[4]
[4] See generally Klement at [47]-[49] and [73]-[74].
Saying this another way, the scope of the medical dispute that was referred to the Medical Assessor required the Medical Assessor to consider whether the respondent had impairment relating to her right shoulder and if so whether that impairment was the result of the injury the respondent suffered on 6 July 2021. The Medical Assessor was not constrained by Dr Riley’s opinion that it was not. It is apparent from the MAC that he had regard to Dr Riley’s opinion, but he came to a different view concluding that the restricted range of movement the respondent had in her shoulder was attributable to her injury. In any event, the issue that the appellant raises in its appeal against the MAC is that the scope of the referral to the Medical Assessor did not extend to the respondent’s right shoulder. The appellant did not raise any issue regarding the Medical Assessor’s conclusion that limitation of the respondent’s range of movement in her shoulder is attributable to the injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 April 2024 should be confirmed.
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