Tahan v MSS Security Pty Ltd
[2022] NSWPICMP 71
•31 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tahan v MSS Security Pty Ltd [2022] NSWPICMP 71 |
| APPELLANT: | Abdel Tahan |
| RESPONDENT: | MSS Security Pty Ltd |
| APPEAL PANEL: | Member William Dalley Dr Mark Burns Dr Roger Pillemer |
| DATE OF DECISION: | 31 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal asserting incorrect criteria and demonstrable error where Medical Assessor (MA) found range of motion was unable to be measured and assessed range of motion in bilateral shoulders by estimation without explaining the basis of the assessment; Held- in the absence of explanation, the method adopted by the MA could not be said to be in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; worker reassessed and Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 December 2021 Abdel Tahan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 December 2021.
The appellant relies on the following grounds of appeal under section 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant suffered an injury to his right shoulder on 16 January 2018 in the course of his employment with the respondent, MSS Security Pty Ltd. He underwent surgery to the right shoulder. As a result of the injury, he subsequently suffered the onset of a pathological condition in the left shoulder. The shoulders improved with treatment, but Mr Tahan continued to suffer symptoms.
In February 2021 Mr Tahan was examined by an orthopaedic surgeon, A/Prof Nigel Hope, who diagnosed “right shoulder moderate impingement (Post rotator cuff tear repair)” and “left shoulder mild impingement (consequential to right shoulder injury)”. A/Prof Hope assessed Mr Tahan by measurement of the range of motion in the respective shoulders, assessed at 15% whole person impairment (WPI) in respect of the right shoulder and 13% WPI in respect of the left shoulder. The total impairment, assessed in accordance with the Combined Values Chart in AMA 5, was 35% WPI.
Mr Tahan’s solicitors made a claim for lump-sum compensation in accordance with A/Prof Hope’s assessment. The insurer had Mr Tahan assessed by an independent medical expert, Dr Graeme Doig, who examined Mr Tahan on 22 April 2021. Dr Doig diagnosed an anterior labral tear at the right shoulder which had been arthroscopically repaired and assessed Mr Tahan as having 11% WPI in respect of injury to the right shoulder. Dr Doig did not consider that any left shoulder pathology resulted from employment.
Mr Tahan’s solicitors filed an Application to Resolve a Dispute in the Commission. The respondent maintained the dispute as to the extent of impairment, but the parties agreed to consent orders providing for the dispute to be referred to the Medical Assessor to determine the extent of impairment resulting from injury to the right shoulder on 16 January 2018 and the consequential condition in the left shoulder.
Mr Tahan was examined by the Medical Assessor on 25 November 2021. The Medical Assessor noted the history of injury, subsequent treatment and imaging. He performed an examination of Mr Tahan. The Medical Assessor assessed Mr Tahan as having 5% WPI in respect of each shoulder to give a total assessment of 10% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the nature of the error identified indicated that there was not sufficient information before the Panel in order to determine the 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.
Further medical examination
Dr Roger Pillemer of the Appeal Panel conducted an examination of the worker on 24 March 2022 and reported to the Appeal Panel.
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 the Medical Assessor did not assess Mr Tahan in accordance with the Guidelines and gave no adequate reasons for his assessment.
In reply, the respondent submits that the Medical Assessor had appropriately applied provisions of paragraph 1.36 of the Guidelines, finding that he could not assess range of motion reliably. On that basis the Medical Assessor was entitled to modify the impairment rating and his reasons for doing so were clearly expressed.
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 assessor reported with respect to his physical examination:
“Mr Tahan told me that he was unable to remove his T shirt and so the shoulders could not be inspected. The patient could lift the arms to 30 degrees from his side in both forward flexion and in abduction. He was unable to externally rotate either arm, and internal rotation was only to 30 degrees. No other measurements could be determined. Reflexes in both arms were brisk and equal. There was no apparent sensory loss and no obvious muscle wasting.”
The Medical Assessor noted the reports of MRI scans and the ultrasound investigation of the right shoulder and the report of the single MRI scan of the left shoulder. With respect to diagnosis, the Medical Assessor said:
“This man has a history of sustaining injury to the right shoulder which is proven to be a labral tear and tendinosis and a consequential injury to the left shoulder which is supported by the findings on MRI of tendinosis and subacromial subdeltoid bursitis.”
Under the heading “Consistency of presentation” the Medical Assessor stated that he been unable to determine Mr Tahan’s range of abduction and extension in either arm. Reviewing the respective independent medical examinations, he noted that Mr Tahan “demonstrated a markedly reduced range of movement with no history of worsening of the situation.” When challenged with this Mr Tahan informed the Medical Assessor: “This is what I can do today and I do not remember what I was like when I saw the other two specialists.”
The Medical Assessor reported his view that the range of motion exhibited by Mr Tahan was not consistent with the imaging and history of injury sustained. He referred to paragraph 2.14 of the Guidelines which he said “indicate that most shoulder disorders should be assessed according to the abnormal motion as per [paragraph] 16.4 in the AMA 5th edition of the Guides to the Evaluation of Permanent Impairment”. He reported:
“In this man’s case, his range of movement has deteriorated significantly since he was last examined without any history of injury or worsening of his symptoms. I note that Paragraph 2.15 for a ruptured longhead of biceps allows an assessment of 2% Whole Person Impairment and Paragraph 2.16 for an impingement, allows a 2% Whole Person Impairment.
I would consider that this patient suffered a frank injury to the right shoulder and a consequential injury to the left shoulder. His imaging shows that the labral tear in the right shoulder has been repaired and the most recent MRI scan shows scarring and a possible labral junction tear and that there are subcortical cysts present in the posterior humeral head, the cause of which is uncertain.
In terms of the left shoulder, the MRI scan dated 5 July 2021 shows tendinosis of the infraspinatus tendon and subacromial and subdeltoid bursitis.
I would consider that the patient’s range of movement should be far greater with these underlying changes than what was demonstrated today. On those grounds I would assess him as having a 5% Whole Person Impairment for each upper extremity as a result of his frank injury and his consequential injury.
These assessments should be combined using the Combined Tables Chart [sic - Combined Values Chart] on Page 604 and the patient has therefore a Total Whole Person Impairment of 10%.” (Original emphasis).
The Medical Assessor noted the opinion of A/Prof Hope and his assessment of 35% WPI and the assessment by Dr Doig of the right shoulder which he said demonstrated a greater range of motion than observed by the Medical Assessor on the day of examination.
The appellant submitted that the Medical Assessor had failed to assess Mr Tahan in accordance with the Guidelines and had provided no explanation for his conclusion that “it was not possible for the Applicant’s range of movement to have decreased generally, or to simply have been acutely bad on the day of examination” (original emphasis).
The respondent noted paragraph 1.36 of the Guidelines which provides:
“AMA 5 (page 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.’ This paragraph applies to inconsistent presentation only.”[2]
[2] AMA 5 page 19, paragraph 2.5c (paraphrased in the Guideline).
As noted above, the Medical Assessor recorded “The patient could lift the arms to 30 degrees from his side in both forward flexion and in abduction. He was unable to externally rotate either arm, and internal rotation was only to 30 degrees. No other measurements could be determined.” Under the heading “Consistency of presentation” the Medical Assessor said: “I was unable to determine the patient’s range of abduction and extension in either arm.” With respect to abduction, those statements appear contradictory.
It is unclear from the MAC whether the Medical Assessor obtained inconsistent results when measuring the range of motion or whether he considered that such limited range of motion which as he observed was inconsistent with earlier assessments. In view of the references to the earlier assessments by the respective independent medical experts, and the radiological investigations, it is likely that the Medical Assessor meant the latter.
The précis of paragraph 2.5c of AMA 5 found at paragraph 1.36 of the Guidelines requires that, if the Medical Assessor is concerned that the result of assessment is not valid because of inconsistency, the Medical Assessor is to exercise clinical skill and judgement to modify the assessment, explaining the rationale behind the modification.
The Panel accepts that it does not appear from the MAC that the Medical Assessor has carried out his assessment in accordance with the Guidelines. The Guidelines require that the assessor make an assessment using the procedures detailed in chapter 16 of AMA 5 and then modify that assessment, explaining the reason for the modification in the MAC.
32.The Medical Assessor explained:
“In this man’s case, his range of movement has deteriorated significantly since he was last examined without any history of injury or worsening of his symptoms. I note that Paragraph 2.15 for a ruptured longhead of biceps allows an assessment of 2% Whole Person Impairment and Paragraph 2.16 for an impingement, allows a 2% Whole Person.”
The Medical Assessor considered the reports of the radiological investigations of the shoulders and the previous assessments by the respective independent medical experts, A/Prof Hope and Dr Doig. He said:
“I would consider that the patient’s range of movement should be far greater with these underlying changes than what was demonstrated today. On those grounds I would assess him as having a 5% Whole Person Impairment for each upper extremity as a result of his frank injury and his consequential injury.”
The Panel accepts that the Medical Assessor did not assess Mr Tahan by reference to the range of motion method or any of the other methods described in chapter 16 of AMA 5 and has not explained how the assessment of 5% WPI in respect of each shoulder was reached. The reference to paragraphs 2.15 and 2.16 of the Guidelines does not appear to have any relevance to the pathology in either of Mr Tahan’s shoulders and, if the reference was intended as a reference to an analogous condition, then that needed to be made clear.
The Panel accepts that the Medical Assessor has not assessed Mr Tahan in accordance with the Guidelines because he has substituted a clinical opinion for the process of measurement and subsequent modification. The Medical Assessor has not provided reasons for the assessment made in respect of each of the shoulders so as to enable the path of reasoning to be followed.
The Panel is satisfied that demonstrable error has been established and it is necessary that the Panel review the evidence in order to assess the degree of impairment in each of the upper extremities. The material before the Panel did not permit of that assessment and re-examination by a Medical Assessor member of the panel was therefore carried out on 24 March 2022.
The report of the Medical Assessor member of the panel, Dr Pillemer, is as follows:
“Mr Tahan attended alone today.
1. The workers medical history, where it differs from previous records
I read Mr Tahan the history that he gave to Dr N A Berry at the time of the Medical Assessment Certificate consultation on 25 November 2021. Mr Tahan was entirely happy with this history, and it did not differ from Dr Berry’s records.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Tahan informs me that he last saw his treating specialist in November 2021 who has referred him back to his general practitioner, and suggested that nothing further surgically was indicated in the way of treatment. At the present time he simply takes tablets as needed and was having physiotherapy once a week up until a month ago when his physiotherapist went away. He also does his own exercises and ice packs but he has been told not to aggravate his condition.
He still gets discomfort in both shoulder regions being more marked on the right side, and he indicates the discomfort being felt anteriorly and ‘deep in’, and importantly Mr Tahan feels he can be quite comfortable when he is simply at rest. Any activity causes him discomfort which can go as high as 7/10, and he notes this particularly with elevation of the shoulder. He does get relief as mentioned by resting, taking his tablets and using ice packs.
Overall he does not feel that there has been much change in his symptoms.
As far as the left shoulder is concerned, symptoms are very similar to the right side but not quite as bad. Again the discomfort is felt particularly anteriorly and ‘deep in’, and can be very sharp at times.
On specific questioning he does not have any referred pain down his upper limbs and there is no numbness or weakness, and he does not have any particular neck discomfort.
3. Findings on clinical examination
Mr Tahan is a healthy looking adult male who presents in a very straightforward and open fashion, and has difficulty removing his T-shirt over his head, which I assisted him with. In doing so he leans far forward.
He has a full range of pain free cervical movements but does have restriction of shoulder movements bilaterally.
Shoulder Movements
Movement
Right
% Upper Extremity Impairment
Left
% Upper Extremity Impairment
Flexion
110°
5
120°
4
Extension
30°
1
30°
1
Abduction
110°
3
120°
3
Adduction
40°
0
40°
0
Internal rotation
40°
3
70°
1
External rotation
30°
1
60°
0
Total
13%
Total
9%
The measurements were consistent upon repetition. Importantly Mr Tahan does have satisfactory power to testing all muscles of his rotator cuff, but forward flexion of his arm against resistance is limited because of pain, indicative of bicipital tendinitis bilaterally. In addition he does have localized tenderness over the anterior aspect of both shoulders along the course of the biceps tendon, and he also has a very positive O’Brien’s sign on the right and mildly positive on the left, indicative of labral lesions.
Reflexes are all present and equal, sensation was intact, and motor power was good in all groups tested apart from his biceps power which is limited because of pain. Excellent grip strength was present bilaterally.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Tahan has not had any further investigations carried out.”
The Panel notes the radiological and ultrasound reports, the reports of the treating specialist, Dr Herald and the report of the Medical Assessor member of the Panel, Dr Pillemer.
The Medical Assessor members of the Panel accept that the evidence supports a diagnosis of bicipital tendinitis and labral lesions on both sides, more marked on the right. The Panel accepts that there has been improvement in the range of motion since this was assessed by A/Prof Hope in February 2021. The report of Dr Pillemer to the Panel records that Mr Tahan demonstrated a consistent range of motion on repeated testing and the Panel accepts that the range of motion assessed by Dr Pillemer accurately represents upper extremity impairment in the respective shoulders. Assessment of 13% upper extremity impairment on the right equates to 8% WPI and 9% upper extremity impairment on the left equates to 5% WPI[3]. Applying the Combined Values Chart[4], Mr Tahan is assessed as having 13% WPI as a result of the subject injury, there being no relevant pre-existing condition or abnormality and no previous injury.
[3] AMA 5 Table 16-3.
[4] AMA 5 page 604.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 December 2021 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
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Neil Berry 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 NSW workers compensation guidelines | 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) |
| 1 Right upper extremity (shoulder). | 16/01/18 | Chapter 2, Pages 10 - 12 | Chapter 16, Pages 433 – 521, Table 16-3 | 8% | Nil | 8% |
| 2. Left upper extremity (shoulder) | 16/01/18 | Chapter 2, Pages 10 - 12 | Chapter 16, Pages 433 – 521, Table 16-3 | 5% | Nil | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
William Dalley
Member
Mark Burns
Medical Assessor
Roger Pillemer
Medical Assessor
31 March 2022
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