State Transit Authority v Fullbrook
[2023] NSWPICMP 138
•12 April 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State Transit Authority v Fullbrook [2023] NSWPICMP 138 |
| APPELLANT: | State Transit Authority |
| RESPONDENT: | Andrew Fullbrook |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | J Brian Stephenson |
| DATE OF DECISION: | 12 April 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Assessment of impairment of upper extremities; injury to both shoulders; employer’s failure to determine claim resulted in all claims referred to Medical Assessor (MA) despite worker’s assessment of 0%; MA found no permanent impairment in right shoulder as a result of the injury but measured loss of the range of motion; failure to apply paragraph 2.20 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 and to deduct measured loss in right shoulder from assessed loss in respect of left shoulder injury; application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for previous surgery; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 January 2023 the State Transit Authority (the Authority) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr S K Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 December 2022.
The Authority 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.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
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.
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
Mr Fullbrook was employed by the Authority as a bus driver trainer. He suffered an injury on 1 May 2020 when he tripped and fell forward, landing on his hands and knees. Many years before, Mr Fullbrook had undergone surgery on his left shoulder but it was functioning well before the injury. After conservative treatment, he underwent an arthroscopic rotator cuff repair on 28 October 2021. Mr Fullbrook’s knee injuries also did not improve with conservative treatment and he underwent a left total knee replacement on 2 December 2020. He underwent arthroscopic surgery to his right knee on 10 September 2021, being partial meniscectomy and micro-fracturing at the patello-femoral articulation.
Mr Fullbrook claimed compensation in respect of his left lower extremity, right lower extremity, left upper extremity and right upper extremity. The Authority failed to determine the claim within the time allowed in s 281 of the 1998 Act and Mr Fullbrook commenced proceedings. The Authority filed a Reply but did not seek leave to place any issues in dispute. The matter was referred directly to the Medical Assessor. The referral in the file asks the Medical Assessor to assess Mr Fullbrook’s left lower extremity, right lower extremity, left upper extremity and right upper extremity. It is the Personal Injury Commission’s usual practice to send a copy of the referral to the parties and the file does not indicate that any issue was raised with the form of the referral.
The Medical Assessor assessed 31% whole person impairment (WPI) being 18% in respect of the left lower extremity, 8% in respect of the right lower extremity and 11% in respect of the left upper extremity. He made deductions under s 323 of the 1998 Act in respect of each of those assessments. He assessed 0% WPI in respect of Mr Fullbrook’s right upper extremity.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for the worker to undergo a further medical examination because there is sufficient evidence in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC 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 we have considered them. The appeal concerns only the assessment of Mr Fullbrook’s shoulders.
In summary, the Authority submitted that the MAC contained a demonstrable error or was made on the basis of incorrect criteria because the Medical Assessor failed to apply paragraph 2.20 of the Guidelines in his assessment of Mr Fullbrook’s left shoulder. The Authority noted that Medical Assessor assessed 11% WPI in respect of his left shoulder and 2% in respect of the right. It conceded that the right shoulder had been referred to the Medical Assessor but said that he determined that there was no impairment in Mr Fullbrook’s right shoulder as a result of the incident.
The Authority noted that the Medical Assessor deducted one-tenth of the assessment of Mr Fullbrook’s left shoulder under s 323 in respect of previous surgery but said that the Medical Assessor’s approach was incorrect and that he should have used the method provided in paragraph 2.20. It said that the Medical Assessor “repeatedly confirmed” the conclusion that Mr Fullbrook’s right shoulder had not been injured and there was no impairment resulting from the incident. The Authority said that the only conclusion to be drawn was that the Medical Assessor concluded that impairment in the right shoulder was pre-existing and it submitted that 2% should have been deducted from the assessment of 11% in respect of the left shoulder. If that adjustment was made, the Authority said that the total WPI was 30%.
In reply, Mr Fullbrook submitted that the MAC contained a demonstrable error because the Medical Assessor assessed 2% WPI but deducted the whole amount on the basis that he did not injure his right shoulder. He said that a new MAC should be issued certifying 32% WPI, including the amount assessed in respect of the right shoulder.
Mr Fullbrook submitted that there was no dispute that he had suffered an injury to his right shoulder and that paragraph 2.20 does not apply where an injury was suffered.
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.
The medical evidence
Mr Fullbrook said in his statement that when he fell he felt an immediate onset of pain in his knees and shoulders. He was taken to Northern Beaches Hospital but there is no discharge summary in the file. When describing his restrictions and disabilities, he said that he suffers “[p]ersistent pain in my left knee, right knee, left shoulder and right shoulder” and he described other restrictions in both shoulders.
There is no contemporaneous medical evidence in the file describing an injury to Mr Fullbrook’s right shoulder.
Dr Doig saw Mr Fullbrook at the request of his solicitors and reported on 31 May 2022. He said:
“Mr Fullbrook did suffer a previous left-shoulder injury requiring a Putti-Platt procedure about 30 years previously for instability. He informed me his shoulder was performing well up until the incident of May 2020.”
And:
“As far as I am aware, the right shoulder was not injured in the incident of May 2020. Mr Fullbrook was uncomplaining with respect to the right shoulder. A 0% Whole Person Impairment therefore applies.”
Dr Doig assessed 14% upper extremity impairment (UEI) in respect of Mr Fullbrook’s left shoulder, which converted to 8% WPI. He said:
“As there was a previous injury requiring surgery at the left shoulder, a 10% deduction would apply as per the SIRA Guides. This would reduce the Whole Person Impairment to 7%.”
The Authority did not obtain an assessment of permanent impairment.
The MAC
The Medical Assessor set out the history he obtained:
“On 1 May 2020, Mr Fullbrook tripped over while walking on a footpath. He fell forward landed on his hands and knees. He injured his left shoulder. Mr Fullbrook had a prior Putti-Platt procedure for instability at the left shoulder when he was 25 year of age. The left shoulder was functioning well before the 1 May 2020 accident. An MRI scan of the left shoulder in June 2021 outlined a full-thickness tear of the supraspinatus tendon on a background of tendinopathy with moderate degeneration at the acromioclavicular and gleno-humeral joints. After the failed conservative management an arthroscopic rotator-cuff repair was performed on 28 October 2021 by Dr Matthew Sherlock. The right shoulder had transient pain and it recovered fully. He received no treatment for his right shoulder.”
The Medical Assessor set out the range of movement of Mr Fullbrook’s shoulders and said that, under Figures 16-40 to 16-46 of AMA 5, he suffered 3% upper extremity impairment (UEI) on the right, which converts to 2% WPI, and 19% UEI on the left, which converts to 11% WPI. He said:
“Andrew Fullbrook informed me during this examination that he had only transient symptoms at the right shoulder after the work accident and he denied any significant injury to the right shoulder from the incidence on 1 May 2020.”
The Medical Assessor said:
“Mr Fullbrook had a work related injury to his left shoulder requiring surgery at aged 25 and he had recovered well from it. There was no other prior injury and no subsequent injury.”
When setting out his reasons for assessment he said:
“The left shoulder was rated at 11% WPI based on the goniometric data obtained in this examination. This was reduced to 10% after 1/10 apportionment for a pre-existing condition.
The right shoulder was not injured at the accident and the impairment due to the working accident was 0% WPI.”
The Medical Assessor considered the other assessments in the file and said:
“31 May 2022 Dr Graeme Doig … The left shoulder was 8% WPI reduced to 7% after 1/10 apportionment. The right shoulder was rated at 0% WPI and scarring was rated at 0% WPI.
I agree with Dr Doig for the 0% WPI assessment for the right shoulder. Based on the goniometric data obtained in this examination, the left shoulder was rated at 11% WPI reduced to 10% WPI after 1/10 apportionment. ...”
Injury and assessment
The Authority did not dispute that Mr Fullbrook suffered an injury to his right shoulder. In North Coast Area Health Service v Felstead[2], Roche DP said:
“It follows that the description of a personal injury as ‘a sudden identifiable pathological change’ is consistent with the authorities. It suggests no more than that, to qualify as a personal injury, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. Such a change or disturbance may be as simple as a bruise or a soft tissue strain. If the personal injury also aggravates a pre-existing disease, that does not mean it is no longer a personal injury.”
[2] [2011] NSWWCCPD 51.
The Authority did not oppose the referral of Mr Fulbrook’s right shoulder. Because Dr Doig assessed 0% WPI arising from his right shoulder, it is arguable that it could have[3] . The claim for permanent impairment compensation dated 22 August 2022 was made in accordance with Dr Doig’s assessment of 28% WPI and did not set out the body parts involved. Dr Doig did not assess any impairment arising from Mr Fullbrook’s right shoulder. The Authority did not issue any notice under s 78 of the 1988 Act so the relevant dispute was not raised.
[3] See, for example, Apps v Secretary, Department of Communities and Justice [2022] NSWPIC 190 and McPherson v Mitre 10 Australia Pty Ltd [2022] NSWPIC 410 which distinguish Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18 in these circumstances.
It was not the role of the Medical Assessor to determine whether or not Mr Fullbrook suffered an injury. His role was to assess whether any impairment flowed from the injury suffered.[4] It was open to him to find that there was no permanent impairment as a result of the injury. He found that Mr Fullbrook suffered transient pain in his right shoulder and that it had recovered fully. He noted that Mr Fullbrook denied “significant injury” to his right shoulder and he noted that he had no treatment. His comment toward the end of the MAC that there was no injury was not open to the Medical Assessor based on the terms of the referral.
[4] Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 at [249].
However, it was open to the Medical Assessor to find that Mr Fullbrook did not suffer any impairment as a result of the injury. Once he made that finding, he was required to assess Mr Fullbrook’s shoulders in accordance with the Guidelines and to apply paragraph 2.20:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543).”
The Medical Assessor found that Mr Fullbrook suffered a loss of the range of movement in his right shoulder but said that he did not suffer ongoing symptoms as a result of the injury. The inference to be drawn from all of the other statements in the MAC is that the Medical Assessor considered that the loss of the range of movement in Mr Fullbrook’s right shoulder was not a result of the injury. The Medical Assessor was required to deduct the loss assessed in respect of the right shoulder from that in the left. The resulting impairment of the left shoulder is therefore 9% WPI before any deduction under s 323.
The submissions for the Authority misunderstand how the Medical Assessor applied s 323 in respect of the left shoulder. The Medical Assessor did not apply s 323 in preference to paragraph 2.20. He omitted to refer to paragraph 2.20.
The s 323 deduction the Medical Assessor applied was a result of the previous Putti-Platt procedure undertaken years before, a procedure which is used to correct recurrent shoulder dislocation. It would have been preferable for the Medical Assessor to clearly state the reason for the deduction but he did refer to the previous procedure in the MAC and agree with Dr Doig’s reasoning.
To give effect to his findings, the Medical Assessor was required to apply paragraph 2.20 and then s 323. Because the surgery was undertaken so many years before the injury, the extent of the deduction would be difficult to determine and the assumption of one-tenth in s 323(2) applies. That results in an assessment of 7% WPI for the left shoulder.
Mr Fullbrook submitted that he should be assessed as having 2% WPI as a result of the injury to his right shoulder. He did not lodge an appeal or cross appeal seeking that relief. The submission is untenable based on the reasoning in the MAC that there was no impairment in his right shoulder as a result of the injury in May 2020.
For these reasons, we have determined that the MAC issued on 22 December 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7167/22 |
Applicant: | Andrew Fullbrook |
Respondent: | State Transit Authority |
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 Dr S K Cyril Wong 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 WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Left lower extremity | 1 May 2020 | Chapter 3 p13-23 | Chapter 17 p523-564 | 20 | 1/10 | 18% |
| Right lower extremity | 1 May 2020 | Chapter 3 p13-23 | Chapter 17 p523-564 | 8 | 1/10 | 7% |
| Left upper extremity | 1 May 2020 | Chapter 2 p10-12 | Chapter 16 p433-521 | 9 | 1/10 | 8% |
| Right upper extremity | 1 May 2020 | Chapter 2 p10-12 | Chapter 16 p433-521 | 0 | N/A | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 30% | |||||
0
6
0