State of New South Wales (South Western Sydney Local Health District) v Seymour
[2021] NSWPICMP 122
•13 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (South Western Sydney Local Health District) v Seymour [2021] NSWPICMP 122 |
| APPELLANT: | State of New South Wales (South Western Sydney Local Health District) |
| RESPONDENT: | Karen Seymour |
| APPEAL PANEL: | Member William Dalley Dr James Bodel Dr David Crocker |
| DATE OF DECISION: | 13 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against the assessment of 1/10 deduction pursuant to section 323 of the 1998 Act in assessing impairment arising from injury to the right shoulder; the respondent worker had suffered an earlier fracture to the right shoulder approximately seven years prior to the subject injury; alleged failure to consider radiological evidence of the previous fracture; Held- the MAC, read as a whole, established that the AMS had noted the earlier fracture but had appropriately weighed this against evidence of return to normal use and appropriately concluded that a 1/10 deduction accorded with the evidence; Mifsud v Campbell applied; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 March 2021 the appellant, State of New South Wales, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 March 2021.
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 grounds 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).
RELEVANT FACTUAL BACKGROUND
The respondent to the appeal, Karen Seymour, suffered an injury to her right shoulder on 19 July 2018 (the subject injury) in the course of her employment as a Registered Nurse with the Southern Western Sydney Local Health District. Mrs Seymour was referred to an orthopaedic specialist who performed a right shoulder replacement on 15 October 2018.
In the course of her rehabilitation, Mrs Seymour developed a condition in the cervical spine which has been accepted by the workers compensation insurer as a consequential condition resulting from the subject injury.
At the request of her solicitors, Mrs Seymour was examined by an independent medical expert, Dr WGD Patrick, who assessed Mrs Seymour as having 19% whole person impairment (WPI) as a result of injury to the right shoulder and 5% WPI in respect of the cervical spine. Dr Patrick also assessed 1% WPI in respect of scarring.
Dr Patrick noted that Mrs Seymour had suffered a previous injury to the right shoulder on 4 December 2011 when she fell, sustaining a comminuted fracture of the right humerus. Dr Patrick assessed a deduction of one tenth as the appropriate measure of contribution to the overall level of impairment, pursuant to section 323 of the 1998 Act.
A claim for lump-sum compensation was made in accordance with Dr Patrick’s assessment. The insurer had Mrs Seymour examined by an independent medical expert, Dr Richard Powell, who examined Mrs Seymour on 13 March 2020. Dr Powell assessed Mrs Seymour with a similar level of impairment in the right shoulder at 19% WPI. Dr Powell did not consider that there was any direct or consequential injury involving the cervical spine and hence no assessable impairment. He assessed scarring at 0% WPI.
Dr Powell noted the previous injury on 4 December 2011. He assessed the deductible proportion of impairment attributable to the previous accident at one half.
The resulting medical dispute was referred to the Medical Assessor to assess the right upper extremity (shoulder) and the cervical spine (consequential condition). Mrs Seymour was examined by the Medical Assessor on 18 February 21. The Medical Assessor agreed with the assessment of Dr Patrick and Dr Powell with respect to the right shoulder. He assessed Mrs Seymour as having 5% WPI as result of the consequential condition in the cervical spine.
The Medical Assessor noted the previous injury in December 2011 and deducted one tenth as the appropriate contribution to the overall level of impairment.
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 there was sufficient evidence available to the Panel to decide the issues on 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.
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.
In summary, the appellant submits that, in assessing a one tenth deduction pursuant to section 323 of the 1998 Act, the Medical Assessor had fallen into error in failing to give any, or sufficient, weight to the radiological reports which provided evidence as to the extent of pathology resulting from the earlier injury in 2011 which indicated that a deduction of one tenth was at odds with the available evidence.
In reply, the respondent submits that the assessment of the Medical Assessor as to the extent of deduction pursuant to section 323 of the 1998 Act was open on the evidence and no error or application of incorrect criteria was established.
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[1] 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.
[1] [2006] NSWCA 284.
There is no dispute between the parties that the effects of the injury suffered by Mrs Seymour in December 2011 contributed to the overall level of impairment assessed by the Medical Assessor. The appellant says that, on the evidence, an assessment of one tenth deduction was not open to the Medical Assessor.
The Medical Assessor noted the previous injury: “On 4 December 2011 she tripped and fell, injuring her right shoulder. She sustained a comminuted fracture of the humerus which was treated conservatively.” The Medical Assessor recorded that Mrs Seymour had reported a good result following conservative treatment with no pain subsequently. Mrs Seymour had reported “minor restriction in putting her arm behind her back” but noted that she had been able to return to her pre-injury duties doing physical work, both at work and at home without any problem. The Medical Assessor noted that she had taken golf lessons without a problem.
The appellant noted:
“The contemporaneous radiological scans were filed with the Reply and were available for the AMS to review. However at paragraph 6 of the MAC, the AMS makes no mention of these historical scans. He simply refers to an MRI of the neck from 2015, and radiological scans concerning the right shoulder from 2018 only. If the AMS did review and analyse the earlier scans from 2011 and 2012, he does not make that clear in his review of the objective radiological evidence.”
The radiological reports referred to by the appellant comprise a report of radiology of the right shoulder, humerus and elbow dated 4 December 2011 noting “there is a comminuted fracture through the surgical neck of humerus. A fracture fragment of the greater tuberosity is displaced by up to 9 mm.” The x-ray report of 8 December 2011 records, in addition: “Alignment of the fracture fragments has improved with decreased displacement demonstrated since the films from four days earlier.”
The report of the CT scan on 15 December 2011 reported a “comminuted proximal humeral fracture” and noted “There is mildly displaced fracture of the humeral head, surgical neck as well as greater and lesser tuberosities.” Minor degenerative change at the acromioclavicular joint was also noted.
The report of the right shoulder ultrasound performed on 19 January 2012 demonstrated a partial width, full thickness tear in the distal portion of the anterior half of the right supraspinatus tendon. The report noted the underlying fracture.
The report of the MRI scan in evidence is limited to the first page of what appears to be a two-page report. The page in evidence sets out the findings in detail. Those findings included “a partial thickness articular sided tear distal supraspinatus” involving approximately one third of the tendon thickness. Minor degenerative changes were noted at the acromioclavicular joint. A “comminuted proximal humeral fracture involving the greater tuberosity, surgical as well as anatomic neck” was reported as well as glenohumeral joint effusion.
The appellant noted the provisions of section 323 (2) of the 1998 Act:
“If the extent of a deduction under this section (or part of it) will be difficult or costly to determine (because for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
The appellant highlighted the words “unless this assumption is at odds with the available evidence” and the Panel accepts that the appellant is asserting that the assessment by the Medical Assessor of one tenth was at odds with the available evidence.
The appellant submitted “the application of a greater deduction than one tenth under section 323 would not have been too difficult or costly to determine, because of the availability of the contemporaneous medical evidence.”
The Medical Assessor reported: “I have deducted one tenth as outlined under 10a [of the MAC] applying the provision of section 323 (2) as the extent of the deduction is difficult or costly to determine.” In paragraph 10a the Medical Assessor recorded:
“In my opinion a one tenth deduction is applicable for pre-existing condition applying the provisions of section 323. Being guided by the history of her having no ongoing symptoms and being able to return to unrestricted work and only having minor restrictions noted when putting her arm behind her back, this deduction more accurately reflects impairment for the pre-existing condition.”
The Panel accepts that the Medical Assessor at this point is stating that he considered a deduction of one tenth as appropriate in the light of the available evidence. That evidence includes the statement of Mrs Seymour that she had noticed no ongoing symptoms other than restriction in putting her arm behind her back as a consequence of the December 2011 injury.
The evidence included a statement by Mrs Seymour dated 31 August 2020 in which she stated that she had undergone a graduated return to her pre-injury duties as a nurse prior to the subject injury and often took additional shifts. Dr Powell recorded that, following the earlier 2011 injury, Mrs Seymour “completed physiotherapy and symptoms largely settled allowing her to resume her pre-injury duties as well as normal recreational activities including golf.”
The Panel accepts that the Medical Assessor did not specifically refer to the reports of radiology undertaken in December 2011 and the ultrasound and MRI reports from January 2012. At paragraph 11 of the MAC the Medical Assessor stated: “My 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.”
The Medical Assessor was clearly aware of the pre-existing pathology. At paragraph 11 of the MAC he noted “the worker has evidence of underlying degenerative disease in the cervical spine and fibrous non-union of previous fracture of the right humerus” which he appropriately regarded as a component of the current impairment. The Panel considers that it is not necessary for a Medical Assessor to refer to every piece of evidence provided that the reasons for the assessment are set out in the MAC[2].
[2] Mifsud v Campbell (1991) 21 NSWLR 725 at 728.
The Panel accepts that the Medical Assessor had read the material supplied to him as stated in the MAC. This included the reports of investigations of the right shoulder in December 2011 and January 2012. The Medical Assessor appropriately concluded that there had been a comminuted fracture of the humeral head and that there was fibrous non-union of that fracture present prior to the subject injury.
The Medical Assessor appears to have considered the evidence of the condition of the right shoulder in December 2011 and January 2012 and weighed that against the evidence of activities performed by Mrs Seymour over the following six years. Those activities included the physical tasks involved in nursing as well as the recreational pursuit of golf. The Medical Assessor concluded that the evidence supported a conclusion that the previous injury contributed to the impairment assessed and the appropriate measure of that contribution was one tenth.
The Panel has considered the report of Dr Powell who attributed one half of the impairment to the earlier injury to the right shoulder. That report was considered by the Medical Assessor who reported that he disagreed with Dr Powell’s assessment of the appropriate deduction. The Panel is of the view that it was open to the Medical Assessor to conclude that a deduction of one half was inconsistent with the level of activity which Mrs Seymour displayed in the years preceding the subject injury and so prefer his own opinion which was consistent with that of Dr Patrick.
The evidence provided by the investigations in December 2011 and January 2012 predate the rehabilitation undertaken by Mrs Seymour. The Panel accepts that rehabilitation, together with a graduated return to work program, permitted recovery from the effects of the earlier injury to the point where Mrs Seymour was able to resume her normal duties with minor impairment. For this reason the Panel is satisfied that it was open to the Medical Assessor to reject that part of the evidence of Dr Powell’s report and to conclude that a one tenth deduction was appropriate on the whole of the evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 31 March 2021 should be confirmed.
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