State of New South Wales (NSW Police Force) v Clifford

[2023] NSWPICMP 58

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (NSW Police Force) v Clifford [2023] NSWPICMP 58
APPELLANT:	State of New South Wales (NSW Police Force)
RESPONDENT:	Dylan Clifford
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	23 February 2023
CATCHWORDS:	wORKERS cOMPENSATION - Accepted injury top right hand; Medical Assessor (MA) assessed right upper extremity impairment on the basis of restricted range of motion in the right shoulder; employer appealed; there has never been a report of injury to the right shoulder; there has not been any claim made in respect of injury to the right shoulder and the independent medical expert (IME) qualified on behalf of the worker and upon whose report the claim for lump sum compensation is based, has made no assessment of impairment of the right shoulder; the MA is required to assess impairment as a result of injury; in these circumstances the Appeal Panel was satisfied that the MA made a demonstrable error when he assessed impairment of the right upper extremity based on the restricted range of motion of the right shoulder; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 20 December 2022, the State of New South Wales (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 November 2022.

2. 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.

3. 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.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. 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.

2. The appellant did not seek that Mr Dylan Clifford (the respondent worker) be subjected to a re-examination. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination.

EVIDENCE

Documentary evidence

1. 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. 

Medical Assessment Certificate

1. 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

1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

•	Date of injury:	31/05/21
•	Body parts / systems referred:	Right upper extremity Lumbar spine Right lower extremity Left lower extremity
•	Method of assessment:	Whole Person Impairment”

1. The Medical Assessor issued a MAC, certifying impairment 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)
Right upper extremity	31/05/21	Chap 2 P 10	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	5	0		5
Lumbar spine		Chap 4 P 24	P 384 T 15-03	6	0		6
Right lower extremity		Chap 3 P 13	P 539 T 17-10	4	0		4
Left lower extremity				0	0		0
Total % WPI (the Combined Table values of all sub-totals)						15

1. The employer appealed. There was no complaint on appeal about the assessment in respect of the lumbar spine, right lower extremity and left lower extremity. The complaint on appeal concerns only the assessment in respect of the right upper extremity.

2. In the MAC, the Medical Assessor has noted that Mr Clifford had suffered from multiple physical injuries affecting all of his limbs and his spinal cord at different times.

3. Under the heading “Present Symptoms” the Medical Assessor has noted ongoing problems with the low back and radiation down the right leg, problems with the hips, and flexing the knees, but has not mentioned anything with regard to the right shoulder.

4. With regard to “social activities/ADL”, the Medical Assessor records a history taken that the worker’s only difficulty around the house is that he tries to ‘…avoid activities which involve bending because of his lower back condition’. Once again, there is no mention in relation to the right shoulder.

5. On physical examination, the Medical Assessor finds a restricted range of shoulder movement as indicated in the MAC which he suggests equates with 9% upper extremity impairment, which in turn equates with 5% whole person impairment (WPI). This figure is included in the final table for the right upper extremity. That is, he has assessed 5% WPI as a result of injury to the right upper extremity based on an assessment of the restricted range of movement in the right shoulder.

6. The appellant complains on appeal that the Medical Assessor made a demonstrable error and/or made an assessment on the basis of incorrect criteria when he assessed the WPI in respect of the right upper extremity based on the restricted range of movement in the right shoulder. In summary, the appellant submitted as follows:

   (a)    in respect of the medical dispute between the parties, the impairment assessment on which the respondent worker’s claim was based was confined to the lumbar spine, knees and right hand/fingers only;

   (b)    the worker’s injuries were described as being “lumbar spondylosis, bilateral patellofemoral joint osteoarthritis and right index and middle finger DIP joint osteoarthritis” with no reference to any right shoulder injury;

   (c)    in the worker’s statement dated 17 August 2022 with regard to the worker’s injuries, restrictions were noted in relation to the spine, neck, knees and right hand, with no suggested restriction in relation to the right shoulder, and

   (d)    Dr Clayton. the independent medical expert (IME) qualified on behalf of the respondent worker, in his report dated 26 April 2022 records no history of right shoulder injury, and does not undertake any assessment of the worker’s right shoulder.

7. The respondent worker made submissions as follows:

   “We note the grounds of appeal deal with the Medical Assessor assessing and including a right shoulder impairment in the MAC when such body part was not pleaded nor part of the “medical dispute’ between the parties.

   The respondent does not wish to make any specific submissions in objection to these grounds of appeal, However the respondent notes that no grounds of appeal have been lodged in relation to the assessment of the lumbar spine and right lower extremity and therefore submits that the parameters of the appeal ought to be confined to the assessment of the right upper extremity (shoulder).”

8. The Appeal Panel notes that the Medical Assessor makes no mention of any shoulder injury but goes onto assess a 5% WPI as a result of finding restricted range of motion in the right shoulder.

9. In the respondent worker’s statement dated 17 August 2022, there is only one mention in paragraph 17 discussing his various injuries where the word “shoulder” is mentioned without any detail.

10. In the rest of the worker’s statement, he notes the ongoing symptoms under very specific headings of his knees and his right hand and goes into detail with regard to the ongoing problems with his back.

11. In paragraph 56, he gives evidence:

    “Due to my back, knees and hand, I am restricted in lifting, carrying, typing and pulling/pushing activities in duties. This is a huge impact on my daily life.” 

12. Once again, there is no mention of problems with his right shoulder.

13. There has never been a report of injury to the right shoulder. There has not been any claim made in respect of injury to the right shoulder and the IME qualified on behalf of the respondent worker and upon whose report the claim for lump sum compensation is based, has made no assessment of impairment of the right shoulder. The Medical Assessor is required to assess impairment as a result of injury.

14. In these circumstances, the Appeal Panel is satisfied that the Medical Assessor made a demonstrable error when he assessed impairment of the right upper extremity based on the restricted range of motion of the right shoulder. The Appeal Panel will accordingly revoke the MAC. The assessment of whole person impairment of the right upper extremity will be 0% WPI and the assessments of impairment of the lumbar spine, left lower extremity and right lower extremity will remain as assessed by the Medical Assessor.

15. For these reasons, the Appeal Panel has determined that the MAC issued on
    23 November 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W5259/22
Applicant:	Dylan Clifford
Respondent:	State of New South Wales

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

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)
Right upper extremity	31/05/21	Chap 2 P 10	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	0	0		0
Lumbar spine		Chap 4 P 24	P 384 T 15-03	6	0		6
Right lower extremity		Chap 3 P 13	P 539 T 17-10	4	0		4
Left lower extremity				0	0		0
Total % WPI (the Combined Table values of all sub-totals)						10