State of New South Wales (NSW Health Pathology) v Siwan
[2022] NSWPICMP 255
•17 June 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (NSW Health Pathology) v Siwan [2022] NSWPICMP 255 |
| APPELLANT: | State of New South Wales (NSW Health Pathology) |
| RESPONDENT: | Hannah Siwan |
| APPEAL PANEL: | |
MEMBER: | Ms Deborah Moore |
MEDICAL ASSESSOR: | Dr Gregory McGroder |
| MEDICAL ASSESSOR: | Dr John Brian Stephenson |
| DATE OF DECISION: | 17 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION – The appellant submitted that the Medical Assessor (MA) erred in failing to make a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Held– no evidence to support the appellant’s claim; Medical Appeal Panel (MAP) confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 April 2022 State of New South Wales (NSW Health Pathology) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Christopher Oates, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 21 March 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, 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.
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 the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA 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.
The appellant submits that the MA erred in failing to make a deduction pursuant to s 323 of the 1998 Act.
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 MA for assessment of whole person impairment (WPI) in respect of the cervical spine; left upper extremity – shoulder; right upper extremity – shoulder (as a result of injury to the cervical spine and left shoulder on 15 March 2021 deemed date), and a consequential condition of the right shoulder, left lower extremity (knee and ankle), the right lower extremity (knee) and the lumbar spine resulting from an injury on 14 February 2008.
The MA obtained a detailed history of the circumstances of Ms Diwan’s injuries. He added:
“She was sent for an ultrasound of the left shoulder showing an anterior substance tear of the supraspinatus tendon on a background of tendinopathy and a CT scan cervical spine, showing disc bulges with endplate bony spurring, mild left and moderate right C4/5 foraminal stenosis with potential for nerve root impingement, and moderate left and mild right C5/6 foraminal narrowing.
She was referred to Dr Sheridan, neurosurgeon, whom she saw on 20 November 2018. By then she had had some physiotherapy which was of benefit and was taking simple analgesics. He organised an MRI scan of the neck and shoulder, and bone scan. The shoulder scan showed mild subacromial/ subdeltoid bursal inflammation but no rotator cuff tear or injury to the labrum. The cervical spine MRI scan showed right paracentral C6/7 annulus tear and disc protrusion, and foraminal narrowing on the right at C4/5 with potential right C5 nerve root compression, and mild left C5/6 foraminal narrowing…
In August 2019, the right shoulder symptoms became intense, and she saw her GP and had an x-ray and ultrasound of the right shoulder. The scan showed supraspinatus and insertional tendinosis with overlying subacromial/ subdeltoid bursitis. She had a self-funded cortisone injection to the right shoulder which relieved the symptoms for about one month…
She took three days off work after the acute onset of right shoulder pain and then had a further two weeks off until her sick leave was exhausted. She slowly improved and returned to pre-injury duties but only three days a week rather than four days a week from 29 April 2020…
This reduction in days… has allowed her to reasonably manage her symptoms, but when the workload increased again, she noticed an increase in symptomatology in both arms when trying to lift weights greater than 2kg. She feels she has lost strength in both arms and her cervicogenic headaches also increased.”
The MA then set out details of Ms Siwan’s present treatment and symptoms. He added:
“She stated to have had no previous neck or arm problems and has had no subsequent relevant condition develop. When she worked for a previous employer called Jalco, a cosmetics factory, she lifted a box and developed low back pain. She was taken to the company doctor and given exercises and her back resolved.”
The MA then set out details of the impact of her injuries on her activities of daily living before documenting his findings on physical examination.
He summarised the radiological material he had as follows:
“23 October 2012 – CT lumbar spine and x-ray lumbar spine – No abnormality on
x-ray. No disc protrusion.2 March 2015 – CT lumbar spine – Mild left convex scoliosis. Broad-based dorsal disc bulge at L4/5 without nerve root compromise.
12 October 2018 – Ultrasound left shoulder and CT cervical spine – Anterior substance tear of supraspinatus tendon measuring 4mm on a background of tendinopathy. Generalised C4/5 posterior disc bulge with posterior spurs causing mild central canal stenosis and foraminal stenosis with potential for nerve root impingement, mild on the left and moderate on the right. C5/6 posterior disc bulge with posterior spurs and left uncovertebral osteophyte formation causing mild central canal stenosis and mild right and moderate left foraminal narrowing. Right C6/7 paracentral disc protrusion with mild right foraminal stenosis.
2 December 2018 – MRI cervical spine and left shoulder – N Ganeshan – Mild subacromial/ subdeltoid bursal inflammation. No cuff tear nor labral injury. Cervical MRI shows right paracentral C6/7 annular tear and disc protrusion with minimal flattening of right hemicord. Right C4/5 foraminal narrowing with potential for right C5 nerve root compression and mild left C5/6 foraminal narrowing.
23 August 2019 – X-ray and ultrasound right shoulder – Normal x-ray. Ultrasound shows supraspinatus insertional tendinosis with overlying subacromial/ subdeltoid bursitis. There is no rotator cuff tear.”
The MA summarised the injuries and diagnoses as follows:
“Soft tissue injury to cervical spine with aggravation of pre-existing multi-level degenerative changes; soft tissue injury to left shoulder with partial tear of supraspinatus component of rotator cuff, and bursal inflammation; soft tissue injury to right shoulder with supraspinatus tendinosis and subacromial bursitis.”
The MA added: “The worker presented in a pain-affected manner, stating that the more physical activity she undertook with her arms the weaker they felt.”
The MA assessed a total WPI 0f 11%.
He explained his reasons as follows:
“I was not satisfied that the results of measurement of range of movement in the shoulders were reliable, so testing was repeated. There was substantial diminution in active range of movement demonstrated on repeat testing, said to be due to fatigue.
I considered the range of movement testing to demonstrate inconsistency and that it should not be used as a valid parameter of impairment evaluation. I decided to use clinical judgement and discretion in considering what weight to give other available evidence to determine if an impairment is present.
Investigations of the left shoulder indicate supraspinatus tendinopathy and subacromial/ subdeltoid bursal inflammation with positive impingement on clinical testing. The investigations in the right shoulder showed supraspinatus tendinosis with overlying subacromial/ subdeltoid bursitis and clinically there was evidence of impingement.
I did not consider that the active range of movement demonstrated was plausible and consistent with the impairment being evaluated, based on the extent of pathology demonstrated on imaging. I used my clinical skill and judgement to modify the impairment rating accordingly.
The NSW guidelines allow for an impairment rating of 3% upper extremity impairment or 2% whole person impairment for impingement at the shoulder, based on a positive finding on appropriate provocative testing. Ordinarily, this would only apply where there is no loss of range of motion, however I am using this as a method to assess the impairment in this case where modification is required as a result of inconsistent presentation.
I therefore assess the left shoulder with 3% upper extremity impairment or 2% whole person impairment, and the right shoulder with 3% upper extremity impairment or 2% whole person impairment.
With respect to the cervical spine, there is dysmetria of active movement present in lateral flexion and rotation. The findings on neurological testing were non-organic and could not be interpreted as valid criteria for radiculopathy. Dysmetria is a differentiator for DRE Cervical Category II giving a range of 5-8% whole person impairment. 7% is the appropriate impairment level as there is interference with moderate to heavy activities of daily living, but she remains independent with personal care.
Combining 7% from the cervical spine with 2% from the right shoulder and 2% from the left shoulder gives 11% whole person impairment.
In making that assessment I have taken account of the following matters:- The examination findings and I have decided to modify, as explained above, the impairment owing to the presence of inconsistency of presentation. I have also taken into account the objective findings on imaging.”
The MA then turned to consider the other medical opinions, stating:
“A report from Dr Smith dated 13 July 2021 found normal range of movement in the neck in all directions with pain on certain movements, no sensory loss or wasting in either upper limb and global power loss of all movements of both upper limbs, which is quite marked and unphysiological, and that the shoulders move normally in range and rhythm.
He found there is no impairment that is a result of her employment and assessed her arm symptoms as emanating from the neck, which could be construed as nonverifiable radicular complaints from time to time, placing her in DRE Category II giving 5% whole person impairment arising from cervical degenerative disease not consequent to her employment.
Dr Smith made different findings from Dr Hope, who had found cervical dysmetria and loss of active movement in both shoulders, but apparently Dr Hope did not test muscle power. Dr Smith felt there was marked embellishment.
I agree with Dr Smith that there were non-organic features to her presentation, as outlined above. I had differing clinical findings in that I found dysmetria in cervical spine movement, no radiculopathy and I did not find normal range of movement in the shoulders. Hence, I made different findings regarding whole person impairment from Dr Smith.
A report from Dr Hope dated 29 January 2021 noted asymmetric loss of lateral flexion and rotation and normal upper limb neurological examination with symmetrically reduced movements in all six planes in both the right and left shoulder and positive impingement signs in both shoulders. Dr Hope found no evidence of exaggeration, symptom fabrication or functional overlay and that history, symptoms, signs and investigations were all consistent.
With respect, I cannot agree with this, based on my own examination findings on neurological testing of the upper limbs, particularly power and sensation, and the wide variability on repeat testing of active range of movement in both shoulders. I do agree that there was cervical dysmetria which I felt confident was a genuine finding.
Rather than making a straight conversion of shoulder range of movement to upper extremity and then whole person impairment as Dr Hope did, I decided to modify the assessment because of the presence of inconsistency as explained above. I agreed with Dr Hope on assessment of cervical spine permanent impairment.”
The MA added:
“In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Pre-existing cervical spine degenerative changes which were asymptomatic.
(ii)Because the pre-existing degenerative changes were minor and were asymptomatic prior to the onset of symptoms related to work practices, there is no indication for making a deduction.”
The appellant submits that the MA erred by failing to make a deduction pursuant to s 323 of the 1998 Act.
The appellant states:
“Dr Oates took a history from the Respondent that she had no previous neck or arm problems… The Respondent also reported that 'she has to hold the kettle or her cup of coffee in both hands for fear she will drop it’.
Dr Oates reported the Respondent had pre-existing cervical spine degenerative changes which minor and were asymptomatic.
However, the Respondent's assertions that she had no previous neck or arm problems are inconsistent with the clinical records of Liverpool Family Medical Centre… These records note the following attendances:
(a) 9 December 2014- ‘swelling / pain left wrist x 1 month can't lift dinner plate decreased power goes all the way up the arm’ [sic]
(b) 20 December 2017- ‘upper/ lower back pain chronic adv physio’[sic].
Further, the Respondent's inability to hold a kettle or her cup of coffee appears to be a similar weakness to that experienced on 9 December 2014, prior to any work-related injury.
Despite recording a history of pre-existing symptomology, the MA failed to apply a deduction for previous psychological injury to the current assessable impairment.
In coming to this conclusion, It appears Dr Oates proceeded on the mistaken assumption that the Respondent's alleged pre-existing symptomology was minor and asymptomatic until after the work related injury.
In making such a finding, Dr Oates placed undue weight on the Respondent's self-reporting that she had no previous injury to the cervical spine or left and right shoulders.
This finding is without foundation and is contradicted by the clinical records of Liverpool Family Medical Centre…
Accordingly, the Appellant submits that a deduction of at least one tenth, if not greater, should be applied to the worker's current assessable impairment for pre-existing symptomology of the cervical spine and left shoulder.”
The respondent submits as follows:
“A difference of medical opinion does not amount to the use of incorrect criteria or a demonstrable error.
The appellant simply indicates that the basis upon which the MA has purportedly fallen into error is made good by reference to two clinical entries pre-dating the accident…
Neither clinical entry that has been identified by the appellant relates to an injury that is the subject of assessment. The respondent sought and was determined as having suffered permanent impairment as a result of injuries to her cervical spine, left shoulder and right shoulder. The clinical entries relate to a back condition and complaint in her left wrist and are not relevant to the determination made.
Each clinical entry pre-dates the initial injurious event and is in no way contemporaneous to the onset of her cervical spine, left shoulder and right shoulder conditions. The evidence does not disclose any history that is at odds with that recorded by Dr Oates of the pre-existing cervical spine changes being minor and asymptomatic.
The clinical records relating to the Applicant’s unrelated lower back complaints were identified by Dr Oates. No doubt the presence of a pre-existing lower back condition and radiology relating to that condition were ignored as it was irrelevant to a determination of the cervical spine and left and right shoulders.
The appellant has failed to identify any record or document relating to the cervical spine, left shoulder or right shoulder.
Dr Oates has very clearly set out the basis for his opinion in relation to there being no applicable deduction under section 323 as is his statutory task.”
We agree with the respondent’s submissions.
The body parts the subject of assessment were clearly identified in the referral, namely:
“Cervical spine; left upper extremity – shoulder; right upper extremity – shoulder (as a result of injury to the cervical spine and left shoulder on 15 March 2021 deemed date, and a consequential condition of the right shoulder).”
There was no reference to the left wrist or the upper or lower back.
We do note that the reference to the left wrist did refer to “decreased power goes all the way up the arm” but that in itself is insufficient to conclude that the respondent had any significant problem with either her cervical spine or her shoulders.
In short, we cannot see that the MA has erred in his assessment of the cervical spine and both shoulders.
The MAC was thorough and detailed, and the MA clearly explained his reasons for declining to make any deduction pursuant to s 323, a decision entirely consistent with the evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 March 2022 should be confirmed.
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