Sums Group Pty Ltd v Marcellino

DETERMINATION OF APPEAL PANEL
CITATION:	Sums Group Pty Ltd v Marcellino [2023] NSWPICMP 287
APPELLANT:	Sums Group Pty Ltd
RESPONDENT:	Antonio Marcellino
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	22 June 2023
CATCHWORDS:	wORKERS cOMPENSATION - Whether Medical Assessor’s (MA) assessment of respondent left lower extremity impairment, based on restricted range of movement, accorded with MA’s findings from examination; Appeal Panel found they did not; respondent re-examined; Appeal Panel assessed respondent’s left lower extremity impairment by reference to findings from re-examination, which came to the same as MA had assessed it to be; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 March 2023 the appellant, Sums Group Pty ltd, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Drew Dixon, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 February 2023.
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.
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, 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).

RELEVANT FACTUAL BACKGROUND

The appellant employed the respondent, Antonio Marcellino, as a warehouse manager. On 21 November 2017 the respondent was preparing an order which required him to lift boxes of fibreglass weighing approximately 10kg. In amongst the boxes he was lifting was a 25kg box with a ceramic unit inside. The box was not marked to indicate it was heavier than the other boxes the respondent was lifting. When lifting that box weighing 25kg the respondent experienced a sudden onset of pain in his lower back and suffered an injury. He reported his injury to the appellant and then drove himself to the Sydney Adventist Hospital at Wahroonga.
On 24 November 2017 a CT scan was performed that revealed a broad based central disc protrusion at L4/5 impinging on the L5 nerve root. On 26 June 2018 neurosurgeon Dr Yanni Sergidis performed a lateral recess decompression rhizolysis microdiscectomy on
26 June 2018.
The respondent claimed that he developed an antalgic gait following his injury and surgery that resulted in his developing a condition in his left lower extremity.
The respondent’s solicitors organised for the respondent to be examined on various occasions by orthopaedic and spinal surgeon Dr Charles New, who provided reports to the respondent’s solicitors dated 20 March 2019 and 8 July 2019 and two dated 31 January 2020. In one of his reports of 31 January 2020, Dr New advised the respondent’s solicitors that he assessed the respondent had 31% whole person impairment (WPI) from the injury the respondent suffered comprising 18% WPI for gait derangement, 10% WPI for impairment of the lumbar spine, 3% WPI for the impact the respondent’s lumbar spine impairment had on his activities of daily living (ADL), 3% WPI for the effect of surgery and 1% WPI for scarring. Dr New noted those impairments combined to 31% WPI.
The respondent’s solicitors also organised for the respondent to be examined by general vascular and trauma surgeon Dr Patrick on 29 October 2020. Dr Patrick provided two reports to the respondent’s solicitors, both dated 9 February 2021. In one of his reports,
Dr Patrick advised he assessed the respondent had 31% WPI from his injury, comprising 14% WPI for the lumbar spine and 20% WPI for the left lower extremity (based on gait derangement). He noted that these impairments combined to 31% WPI. In his other report Dr Patrick advised he assessed the respondent had 17% WPI from his injury, comprised of 14% WPI for the lumbar spine and 3% WPI for left lower extremity (nerve: lateral femoral cutaneous).
On 25 October 2021 the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation of $98,501.39 for 33% permanent impairment from his injury. The respondent’s solicitor advised in their letter that the respondent’s permanent impairment for which he claimed compensation comprised 20% WPI for left lower extremity/gait derangement, 16% WPI for the lumbar spine, 3% WPI for injury to nerves and 1% WPI for scarring.
The appellant’s solicitors then arranged for the respondent to be examined on 7 April 2022 by orthopaedic surgeon Dr Robert Breit. Dr Breit had previously examined the respondent on 9 September 2019. In a report of 19 September 2019 following that examination, Dr Breit advised that the respondent had suffered an acute injury to L4/5. He advised that he assessed the respondent had 12% WPI from that injury. That assessment did not include any component for scarring because Dr Breit did “not consider the scarring warrants a quantum”.
In a subsequent report of 2 January 2022, which followed Dr Breit’s review of an MRI of the respondent’s left hip done on 16 January 2018, Dr Breit in answer to a question put to him relating to whether the respondent sustained a left hip injury as a result of the incident in which the respondent suffered injury to his lumbar spine, Dr Breit advised that the MRI showed moderate degenerative changes in the respondent’s left hip that pre-dated his injury and had nothing to do with the claim the respondent made for back pain in regards to which the respondent had surgery. Dr Breit advised that what the MRI revealed was an incidental finding and that the injury the respondent suffered would not have caused, aggravated or accelerated his left hip degenerative changes in any manner.
Dr Breit in a further report of 11 April 2022, relating to his examination of the respondent on
7 April 2022, repeated his opinion expressed in his earlier reports that the respondent suffered an injury to his lumbar spine but did not suffer an injury to his left hip. Dr Breit also advised that the respondent did not “sustain a consequential injury to the hip through having back pain”. Dr Breit advised that he had again assessed the respondent had 12% WPI due to the injury to his lumbar spine and that “the scarring does not warrant a quantum”.
On 3 June 2022 the appellant’s solicitors wrote to the respondent’s solicitors advising that their client offered to pay the respondent compensation of $27,678 for 12% WPI resulting from the respondent’s injury. They provided the respondent’s solicitors with a copy of
Dr Breit’s report dated 11 April 2022 and they advised that the offer their client made was based on the opinion of Dr Breit. They also enclosed with their letter a notice the insurer issued on 2 June 2022 under s 78 of the 1998 Act in which it notified the respondent, in substance, that it considered the only injury he suffered on 21 November 2017 was to his lumbar spine and that it disputed he had developed any consequential condition from that injury. It notified him it denied liability for his claim for compensation under s 66 of the 1987 Act insofar as it related to impairment due to his left lower extremity or gait derangement or an injury to the nerves.
On 29 July 2022 the respondent filed in the Personal Injury Commission (Commission) an Application to Resolve a Dispute seeking determination of his disputed claim for compensation under s 66 of the 1987 Act. The matter was referred to a Commission Member, Mr Cameron Burge who conducted an arbitration on 22 November 2022. On
19 December 2022 the Commission issued a Certificate of Determination and a Statement of Reasons Member Burge published. Member Burge noted in his Statement of Reasons that the only issue the parties required him to determine was whether the respondent’s left lower extremity condition was caused by the accepted back injury. The Certificate of Determination that the Commission issued recorded that Member Burge found that as a result of the respondent’s injury to his back on 21 November 2017 the respondent “suffered a consequential condition to his left lower extremity ‘hip and gait derangement’”. Member Burge directed that the matter be remitted to the President so that it could be referred to a Medical Assessor to assess the respondent’s permanent impairment resulting from that injury and consequential condition. The Member specified that the body systems that were to be referred to the Medical Assessor to assess consisted of “lumbar spine; scarring (TEMSKI); left lower extremity (hip and leg)”.
A delegate of the President duly referred the matter to the Medical Assessor on
19 December 2022. The Medical Assessor examined the respondent on 6 February 2023 and, as said above, issued the MAC on 8 February 2023. In that he certified the respondent had 17% WPI comprising 14% WPI for the lumbar spine, 0% WPI for scarring and 4% WPI for the left lower extremity (hip and leg).

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 the respondent should undergo a further medical examination. This is because the Appeal Panel, for the reasons it will explain below, found that the MAC did contain a demonstrable error and the Appeal Panel considered that it was necessary for the respondent to be examined again in order to be obtain the necessary clinical data to correct that error. Dr David Crocker of the Appeal Panel was appointed to conduct that re-examination, which he did on 6 June 2023. Dr Crocker provided the Appeal Panel with his report on his examination which the Appeal Panel has included below under the heading Findings and Reasons.
The Appeal Panel also considered during its preliminary review of the medical assessment an application the respondent made to receive into evidence a report of an X-ray of the respondent’s hips dated 14 February 2023. The respondent submitted that the introduction of the report on that X-ray was “in the interests of justice”. No other submission was made. The appellant did not respond to that submission.
As said above, the Medical Assessor examined the respondent on 6 February 2023, prior to that X-ray being done. Accordingly, the respondent could not reasonably have obtained that report prior to the medical assessment. Given that it is a report on an investigation relating to one of the body parts the Medical Assessor had to assess, it has some relevance to the issue before the Appeal Panel and the Appeal Panel consequently receives it into evidence pursuant to s 328(3) of the 1998 Act.

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 Appeal Panel notes that the appellant’s appeal against the MAC relates only to the Medical Assessor’s assessment of the respondent’s impairment of his left lower extremity.
The Medical Assessor provided summaries of numerous radiological investigations the respondent had undergone including an MRI of the respondent’s left hip done on
16 January 2018 which the Medical Assessor noted was reported to reveal a focal moderate cartilage wear and lateral degeneration with tear but no associated synovitis. It also showed some chronic bilateral hamstring tendinosis. The Medical Assessor also noted in the history he obtained from the respondent that a CT scan of his hip had shown some arthritic change.
From his physical examination of the respondent the Medical Assessor found that the respondent walked with two crutches and with an antalgic gait. He recorded the appellant walked unsteadily and tended to walk with his feet externally rotated. The Medical Assessor recorded the following findings relating to the respondent’s motion of his hips:
“Hip motion was mildly restricted on the left with abduction 30 degrees, adduction 20
degrees, flexion 120 degrees, and there was no flexion contracture. External rotation
was 35 degrees, and internal rotation 25 degrees.
He had a full range of motion of his right hip.”
With respect to the respondent’s left hip the Medical Assessor provided diagnosis of “mild stiffness of his left hip with aggravation of chondral change and internal derangement which is ongoing”.
The Medical Assessor, when commenting on the assessment Dr New made of the respondent’s permanent impairment, as recorded in Dr New’s report of 31 January 2020, noted that Dr New had assessed the respondent had 20% WPI for gait derangement, which reduced to 18% WPI after making a deduction of 1/10 for pre-existing conditions. The Medical Assessor said that “I believe that gait derangement should only be used as a last resort and the claimant’s current impairments have been covered adequately in the assessment done today”.
As noted earlier, the Medical Assessor certified that the respondent had 4% WPI relating to his left hip. The Medical Assessor explained in the MAC that his assessment that the respondent had 4% WPI relating to his left hip was based on the appellant’s range of motion and was assessed in accordance with Table 17-9 of AMA5.

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 failed to provide an explanation as to the reasons for his assessment of 4% WPI relating to the respondent’s left hip. The appellant submitted that based on the findings the Medical Assessor recorded in the MAC from his examination of the respondent’s left hip the Medical Assessor ought to have assessed the respondent’s impairment of his left hip to be 0% WPI in accordance with the criteria of Table 17-9 of AMA5.
The respondent acknowledged that the measurements the Medical Assessor recorded in the MAC relating to his movements of his left hip ought to have been assessed as 0% WPI. The respondent submitted however that what the Medical Assessor recorded in the MAC with respect to the movement of his left hip was “a typographical error”. The respondent observed that there was no worksheet attached to the MAC. (The Appeal Panel observes had that been done then that would have either verified what the Medical Assessor recorded in the MAC regarding the respondent’s movements of his left hip or otherwise revealed typographical errors).
The respondent noted that if the Medical Assessor’s findings for external rotation of his left hip had been 25 degrees and for internal rotation had been 15 degrees, then that would have correlated with 4% WPI. The respondent noted that the difference of one number in each of those ratings the Medical Assessor made would have accorded with the assessment the Medical Assessor made relating to the permanent impairment of his left hip.
The respondent further submitted that if the Medical Assessor correctly assessed his impairment of left hip was 0% WPI due to restricted range of movement, then the Medical Assessor ought to have assessed his impairment by reference to gait derangement as a last resort.

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 accepts the appellant’s submission, which the respondent also conceded, that based on the findings the Medical Assessor recorded in the MAC relating to the movement of the respondent’s left hip, the respondent ought to have been assessed as having 0% WPI. Consequently, the Appeal Panel finds the MAC contains a demonstrable error.
It is also the case, however, as the appellant noted, that the Medical Assessor did not attach to the MAC any worksheets relating to his examination of the respondent’s left lower extremity. The first paragraph of Chapter 3 of the Guidelines stipulates that Chapter 17 of AMA5 is to apply to the assessment of permanent impairment of lower extremities subject to any modification set out in Chapter 3. Section 17.3 of AMA5 details the steps that ought to be applied by a Medical Assessor when evaluating a worker’s lower extremity impairment. Step 3 recommends that a Medical Assessor use a worksheet, as provided in Figure 17-10 of AMA5. The Appeal Panel observes that the usual practice of Medical Assessors where a medical dispute requires the assessment of a worker’s lower extremity impairment is to attach the worksheet to the MAC. The Medical Assessor did not do that in this instance and hence, based on the content of the MAC, it is unknown whether he correctly recorded in the MAC his findings relating to the respondent’s movement of his left hip. The fact that he did assess the respondent as having 4% WPI suggests the possibility that he may not have.
Simply put however, it cannot be established from the face of the MAC whether or not the Medical Assessor’s findings in the MAC relating to the respondent’s left hip are correct.
Consequently, and as noted above, to correct the error in the MAC, it was necessary for the Appeal Panel to examine the respondent and, to this end, the Appeal Panel appointed
Dr David Crocker, one of its members, to undertake that task. He provided the following report to the Appeal Panel from his examination:

REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL

Matter No: M1-W4813/22

Appellant: Sums Group Pty Ltd (Applicant Employer)

Respondent: Mr Antonio Marcellino (Worker)

Examination Conducted By: Dr David Crocker

Date of Examination: 6.6.23

The worker’s medical history, where it differs from previous records
Mr Marcellino indicated his agreement with the history outlined in the Medical Assessment Certificate dated 8.2.23.
Additional history since the original Medical Assessment Certificate was performed
Upon review of the Medical Assessment Certificate, it was apparent that the Medical Assessor, Dr Drew Dixon, had not completed the section “Present Symptoms”.
I took the opportunity of reviewing Mr Marcellino’s recent history pertaining to the region of the left hip as a consequence.
He reported that he was experiencing ongoing pain to the region of the left hip that varied dependent upon attempted physical activities and postures assumed. He stated that pain intensity ranged from mild to “strong”. On average, he indicated that this was generally to a moderate to “strong” degree. He highlighted that pain at the left hip was most prominent with walking.
When questioned in relation to distribution of pain, he reported that this was most evident to the region of the left posterolateral buttock when asked to point to the relevant area.
As outlined in the Medical Assessment Certificate, Mr Marcellino also has a condition of the lumbar spine with complaints pertaining to the region and associated areas. It is evident that the region of the lumbar spine is not subject to the current appeal.
Mr Marcellino reported that he considered that there was limitation with active range of motion at the left hip which was contributed to by pain.
Mr Marcellino also reported intermittent discomfort at the right hip to a lesser degree in recent months.
He reported that he is requiring approximately four Panadol tablets per day for pain relief pertaining to the region of the left hip and lumbar spine.
He utilises a walking stick at home. When leaving the house, he uses Canadian crutches bilaterally.
He stated that there are nil further planned changes pertaining to treatment interventions scheduled for the coming months.

Findings on clinical examination
Mr Marcellino was a cooperative man who appeared to experience variable discomfort throughout the consultation and when mobilising in the adjacent waiting room area. Masks were mutually worn within these areas.
His weight was recorded as 116kg, lightly clothed, with a height of 172cm in bare feet. According to Nutrition Australia, the healthy weight range for an Australian of this height is 54-72kg.
Mr Marcellino was informed that I would require his full cooperation but that I would cease or modify any manoeuvres that were particularly distressing for him.
He exhibited a slow symmetric out-turned gait when observed walking within the confines of my office with use of a single Canadian crutch.
General inspection of the lower limbs demonstrated a mild bilateral valgus alignment.
Some care was required with positioning Mr Marcellino upon the examination couch. This was facilitated with use of a pillow placed inferior to his abdomen when he was lying prone.
Active range of motion was assessed on multiple occasions at both hips with use of a goniometer with maximal findings noted as follows:

Hip Movements	Right	Left
Flexion	85°	80°
Extension	Nil contracture	Nil contracture
Adduction	25°	20°
Abduction	35°	25°
Internal Rotation	30°	15°
External Rotation	35°	40°

Limitation with active range of motion appeared to be as a consequence of discomfort arising at the left hip and pain to the region of the low back with this appearing to be more evident upon testing active range of motion at the right hip.
There was apparent poorly localised tenderness upon examination at the left hip.
Nil asymmetry was recorded upon measurement of thigh and calf girths in accordance with the relevant guides.
Nil inconsistencies were apparent upon assessment of Mr Marcellino at the time of the current examination.

Results of any additional investigations
¾
Determination of permanent impairment
Based upon the current assessment, it was considered appropriate that impairment determination relating to the left hip be on the basis of limitation with active range of motion. When taking this into account, a potential 15% lower extremity impairment is determined. Upon examination, mild limitation of active range of motion was also evident of the contralateral hip that would equate with a 5% lower extremity impairment. There has been nil documented injury or condition pertaining to the right hip and as such, the finding to that side may be considered as “normal” for Mr Marcellino. As a consequence and in accordance with the Guides, this should be deducted from the finding at the left hip. On this basis, there is a 10% lower extremity impairment of the left hip which converts to a 4% WPI.
It is considered that there is nil evidence of a previous injury or condition that needs to be taken into account by way of contributory impairment that would necessitate any deductions. Degenerative changes had been noted to the region of the left hip upon MRI examination of 16.1.18, however, Mr Marcellino was able to undertake full and normal duties prior to the time of the workplace incident of 21.11.17. This had also been the approach of Dr Dixon, the Medical Assessor.

Date: 6.6.23

The Appeal Panel adopts the findings of Dr Crocker from his examination of the respondent and also the updated history. The Appeal Panel also considers that the respondent’s permanent impairment with respect to his left hip is rightly determined by reference to the restricted range of motion of the respondent’s hip. That method best accounts for the impairment the respondent has relating to his hip. As Dr Crocker noted in his report to the Appeal Panel, the restriction of movement of the respondent’s left hip equates to 15% lower extremity impairment, in accordance with the criteria of Table 17-9 of AMA5.
The Appeal Panel also observes that cl 3.17 of the Guidelines includes the following instruction:
“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”
As Dr Crocker noted in his report to the Appeal Panel his findings from examination of the respondent’s right hip revealed the respondent also has limitation of active range of motion of that hip. Further, as Dr Crocker noted, the respondent’s right hip was not injured in the incident of 21 November 2017. That accords with the material before the Appeal Panel. That material also does not establish, in the Appeal Panel’s view, that the injury the respondent suffered on 21 November 2017 would have subsequently caused the limitation of range of motion the respondent has in his right hip. In that circumstance therefore, the movement the respondent does have in his right hip serves as a “baseline” of what the respondent’s movement in both of his hips most likely would have been immediately before he suffered injury to his lumbar spine. Hence, when determining what the impairment of his left hip is, as a consequence of the injury he suffered on 21 November 2017, a rating made in accordance with Table 17-9 of AMA5 of impairment in his right hip is to be deducted from the rating for his left hip, consistent with the instruction noted above from Clause 3.17 of the Guidelines.
Essentially what is being done in doing this is determining the impairment the respondent has as a consequence of his injury by comparing the function of his left hip now with what it was likely to have been before the injury.
As Dr Crocker has noted in his report when that is done the respondent’s lower extremity impairment for his left hip reduces to 10% which converts to 4% WPI.
For completeness the Appeal Panel notes that the additional material the Appeal Panel received from the respondent, namely the report on the X-ray done of the respondent’s hips on 14 February 2023, has no bearing on the assessment the Appeal Panel has made of the respondent’s left hip and this is because the Appeal Panel has used the range of motion of the appellant’s left hip as the basis upon which to determine the respondent’s impairment of his left hip.
The final outcome is that although the MAC contained a demonstrable error when that error is corrected the same result is achieved.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 February 2023 should be confirmed.

[2023] NSWPICMP 287

22 June 2023