Thompson v Arthur Tzaneros Discretionary Trust & Luke Webber Trust
[2024] NSWPICMP 609
•28 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Thompson v Arthur Tzaneros Discretionary Trust & Luke Webber Trust [2024] NSWPICMP 609 |
| APPELLANT: | Brenton Thompson |
| RESPONDENT: | Arthur Tzaneros Discretionary Trust & Luke Webber Trust |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 28 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) failed to carry out a strength test evaluation in accordance with Table 16-34 in Chapter 16 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th ed (AMA Guidelines); absent any assessment under clause 16.8 of the AMA Guidelines, MA was unable to determine whether such an assessment would have been a reliable method of assessing the worker’s impairment; MA failed to give reasons as to why Table 16-27 in respect to impairment of a radial head after arthroplasty was an analogous condition of the worker’s bicep tendons injury; re-examination took place; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 January 2024 Brenton Thompson (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
12 December 2023.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.
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 (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).
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 worker should undergo a further medical examination because the Panel has determined that the Medical Assessor erred in the manner of his assessment of both upper extremities.
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
Medical Assessor Alan Home of the Appeal Panel conducted an examination of the worker on 16 August 2024 and reported to the Appeal Panel.
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 erred as follows:
(a) the Medical Assessor failed to carry out a strength test evaluation in accordance with Table 16-34 in Chapter 16 of AMA 5 Guidelines;
(b) absent any assessment under 16.8 of the AMA Guidelines the Medical Assessor was unable to determine whether such an assessment would have been a reliable method of assessing the worker’s impairment, and
(c) the Medical Assessor failed to give reasons as to why Table 16-27 in respect to impairment of a radial head after arthroplasty was an analogous condition of the worker’s bicep tendons injury.
In reply, the respondent submits that no errors were made.
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. 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.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the right upper extremity (distal biceps tendon rupture), the left upper extremity (consequential, shoulder) and scarring resulting from an injury on
24 August 2020.The Medical Assessor obtained the following history:
“Mr Thompson related that on 24/08/20, part of his tasking included emptying wheelie bins. Normally these just had paper in them and were fairly lightweight. On this occasion, unbeknownst to him, the lower part of the bin had been filled with the empty inner parts of the reels of material for wrapping pallets. These were heavy. On top of this there was paper and Mr Thompson did not realise that the bin was particularly heavy. He grabbed hold of the bin in his normal procedure to empty it, holding the top horizontal handle with his left hand and stooping down, putting his right hand under the bottom of the bin. He stood up to empty the bin and as he did so, took the full weight of the bin, predominantly in his right upper limb. He described that his condition did not particularly hurt at the time but he was very aware of a ‘pop-pop’ sound just above his right elbow.
Later, the right elbow was sore. He saw his doctor. It was identified that there probably was dysfunction of the distal attachment of the biceps. Later he came under the care of Specialist Shoulder Surgeon, Dr George Murrell. By that time some four months or so had passed due to various delays. The distal tendon complex of the right biceps had retracted and become adherent to the biceps muscle. Dr Murrell tried to carry out a repair procedure in mid-December 2020 but was unable to effectively repair the tendon.
Mr Thompson tried to return to work but was unable to manage his earlier work as a forklift driver and effectively was not offered any further work.
He described that around late 2020, he started experiencing aches and pains in his left shoulder. His only other treatment has been physiotherapy but he describes that this tended to aggravate the situation.”
Present symptoms were noted as follows:
“Pain around the right elbow, particularly over the radial side of the flexor surface below the elbow. The right arm is very much weaker than the left, particularly with grip. He has aching in the left shoulder.”
The Medical Assessor then turned to consider the impact of Ms Daniels’ injury on her social activities and activities of daily living (ADL’s) and said:
“In years gone by he was keen on spearfishing. At the moment he helps his father with some furniture restoration. He also has an interest in antiques. Around the home, he does his best to help and predominantly uses his left arm.”
Findings on examination were reported as follows:
“Upper Limbs. There was a normal range of movement of the shoulders, elbows, wrists, hands and all digits. The right biceps was retracted proximally. The circumference of the right arm just below this was 32.5cm. On the contra-lateral side, the arm measured 36.5cm. There was therefore a significant reduction in effective muscle mass.
There were two small horizontal scars over the antero-medial part of the right upper arm. Distally this had healed well and was not causing him any problems. More proximally, the scar was puckered and tethered, particularly when he flexed the elbow.
Both scars were very obvious, with altered pigmentation. He is naturally aware of these and does his best to keep them covered. In short sleeved attire, both scars are very obvious.
The forearms had the same circumference. Sensation was completely normal and symmetrical.”
The Medical Assessor summarised the injuries and diagnoses as follows:
“Mr Thompson gives a history of an avulsion injury to the distal tendon of his right biceps which occurred in late August 2020. During that time he was carrying out unexpected heavy lifting, which put a heavy strain on his right arm.
The associated rupture was repaired some four months or so later but unfortunately, this was not successful and effectively he has an unrepaired ruptured right distal biceps tendon.
With this feature there was muscle wasting of the right upper arm, although the forearms had the same circumference. No significant features were identified neurologically. Similarly, the range of movement of all joints of his upper limbs were symmetrical and completely normal.”
The Medical Assessor assessed 7% WPI, being 6% in respect of the right upper extremity, 1% in respect of scarring and 0% in respect of the left upper extremity.
He added:
“Despite the aching described in Mr Thompson’s left shoulder, he had an excellent range of movement which was symmetrical. There has been no surgical procedure to the left shoulder and therefore, there is no assessable whole person impairment.”
He then turned to consider the other medical opinions and material before him and said:
“Specialist Occupational Physician, Dr Uthum Dias in his report of 30/05/22 utilises the technique of grip strength (which I have already addressed) and also dysfunction of the medial ante-brachial cutaneous nerve. With these, he assesses 24% UEI, which converts to 14% WPI. I have already advised that I have concerns over the use of grip strength. Also, I was unable to demonstrate any sensory dysfunction.
Dr Dias also demonstrated a restriction of movement in the left shoulder which I was unable to demonstrate. I would agree with his assessment of scarring at 1%.
Specialist Occupational Physician, Dr Mary Wyatt in her report of 14/04/23 also selects grip strength. She does, however advise that the measured grip strength was unreliable and therefore could not be used and alternatively advises that the average reduction in strength from an unrepaired distal biceps tendon rupture is 15%. This is further addressed through Table 16.34, giving 10% upper extremity impairment, which in turn converts to 6% WPI. Rather ironically, my assessment of whole person impairment is exactly the same, although I have addressed this slightly differently using what I believe to be a very appropriate analogous condition. We all agree on scarring at 1%.”
The appellant’s submissions
These submissions have been broadly outlined above.
The appellant adds:
(a) whilst it is accepted that the AMA Guidelines express some reservation about the reliability of strength measurements as they are functional tests influenced by subjective factors that are difficulty to control, there is no prohibition for using such evaluations under the SIRA Guidelines;
(b) loss of strength remains an evaluative test available to the Medical Assessor within the SIRA Guidelines. Dr Dias said: “in my opinion, the most appropriate measurement of impairment, relates to Mr Thompson’s loss of strength, as a result of his chronic right distal biceps tendon rupture”;
(c) Dr Wyatt also used a loss of strength evaluation to come to her WPI assessment;
(d) the Medical Assessor concedes that there is theoretical possibility of calculating impairment due to loss of power. In those circumstances, paragraph 1.23 of the SIRA Guidelines is not engaged and there is no requirement for the Medical Assessor to select an analogous condition;
(e) there are no reasons given by the Medical Assessor as to why he has selected a radial head resection after arthroplasty as being analogous to a complete rupture of the distal biceps tendon which has been unable to be repaired despite attempts at surgical intervention by Professor Murrell on 15 December 2020;
(f) some of the testing performed by Dr Wyatt showed a significant grip strength loss in the right hand versus the left hand. The grip strength was 22kg in the right hand versus 45kg in the left hand. This loss of strength is similar to the loss of strength assessed by Dr Dias, and
(g) without performing the strength measurements, the Medical Assessor was unable to determine whether such an evaluation would have been a reliable indicator of impairment.
The respondent submitted that no errors were made, adding:
(a) the Medical Assessor is not required to follow or adopt the opinions of any of the doctors qualified by the parties. He is not required to refer to each, and every, piece of evidence filed by the parties and provide reasons as to why he did not agree with it;
(b) the respondent submits the Medical Assessor recorded his finding on examination, disclosed his reasoning process and his assessment of impairment was correct and applied the correct criteria, and was in keeping with his findings;
(c) the Medical Assessor notes that when assessing impairment of an upper extremity there is ‘no impairment evaluation for muscle wasting (unlike the lower limbs)’. In these circumstances he chose to assess impairment by reference to an analogous condition, as provided for in the Guidelines;
(d) AMA5 (p 11) states, “Given the range, evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments… In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living”;
(e) there is no requirement in the Guidelines or AMA 5 to evaluate an avulsion injury to the distal tendon of the right biceps using grip strength and the method chosen by the Medical Assessor is a matter for his clinical judgment;
(f) Dr Wyatt said the grip strength testing was not sufficiently reliable to be used and used an alternate method, albeit still based on average grip strength;
(g) the Medical Assessor explained his reasons for not using grip strength testing, “I would respectfully suggest that this technique is particularly difficult to achieve accurately and rather than this, I am persuaded that an alternative technique is more appropriate”;
(h) the Medical Assessor’s views about the reliability of grip strength as a method of assessing impairment are similar to those expressed in the AMA Guides to the Evaluation of Permanent Impairment 5th Edition at page 507 where it is stated, “Because strength measurements are functional tests influenced by subjective factors that are difficult to control and the Guides for the most part is based on anatomic impairment, the Guides does not assign a large role to such measurements. Those who have contributed to the Guides believe that further research is needed before loss of grip and pinch strength is given a larger role in impairment evaluation…”;
(i) the Medical Assessor chose to assess the appellant’s impairment by reference to an analogous condition of a resection of the radial head which he considered to have an equivalent effect to the injury, and
(j) the methodology applied by the Medical Assessor was entirely acceptable and fully compliant with Guidelines and AMA 5.
Discussion
The Panel agreed with the thrust of the appellant’s submissions, also noting the submissions by the respondent, such that a re-examination was considered necessary and appropriate.
Medical Assessor Alan Home of the Panel assessed Mr Thompson on 16 August 2024 and reported to us as follows:
“HISTORY OF THE INJURY
Mr Thompson states that he sustained injuries on 24 August 2020 whilst attempting to lift a wheelie bin. He said that the bin was unusually heavy as the bin had been filled with the empty inner parts of rolls of material used for wrapping pallets. By contrast, most of the bins that he had previously lifted contained paper and were lighter in weight.
He says that as he grabbed hold of the bin and held the top horizontal handle with his left hand, he placed his right hand near the bottom of the bin as he attempted to stand up lifting the bin, he experienced pain in his right elbow.
He recalls a sensation of a “popping” sound in his right arm just above the elbow.
Right elbow pain increased during the remainder of that day. He attended his general practitioner, Dr Kumar, in Hurstville.
He was subsequently referred to Dr Murrel, shoulder surgeon.
He recalls that diagnostic imaging had demonstrated a distal biceps rupture.
There was an attempted repair of the distal biceps tendon performed by Dr Murrel on 15 December 2020.
Mr Thompson confirms that he was told that the biceps tendon was adherent to the underlying muscle and after debridement there was only a small tendon and could not be stretched to the insertion point.
A decision was made that it was not possible to repair the head of the biceps. He received a period of physical therapy including supervised exercise. There has been no recent treatment directed to his right elbow complaint. He states that within six months of his right elbow complaint he began to experience pain in his left shoulder. He attributed this to overuse.
He under diagnostic imaging, which demonstrated pre-existing AC joint osteoarthrosis. He was diagnosed with AC joint arthropathy and impingement.
He reports recent pain symptoms in the right shoulder. He is currently working as a cleaner.
He describes activity related ache in both arms associated with the work.
CURRENT SYMPTOMS
At the right elbow, he describes local pain associated with forceful flexion and lifting beyond light weight. He prefers to lift with his right elbow extended, with his arm by his side. In this fashion is he able to lift approximately 3kg or 4kg. He avoids heavier lifting with his right hand.
He is right hand dominant. He describes a normal tolerance to sitting and driving.
EXAMINATION FINDINGS
Right shoulder
Examination of the right shoulder reveals not abnormality to inspection on palpation. Active motion is measured by Goniometer method as follows:
| Shoulder Movements | Active ROM Measured Right |
| Flexion | 160° |
| Extension | 50° |
| Abduction | 140° |
| Adduction | 50° |
| Internal Rotation | 90° |
| External Rotation | 90° |
Left shoulder
Active motion is measured by Goniometer method is identical as follows:
Shoulder Movements
Active ROM Measured
LEFT
Flexion
160°
Extension
50°
Abduction
140°
Adduction
50°
Internal Rotation
90°
External Rotation
90°
Right elbow
At the right elbow there are two horizontal healed scars measuring 5 cm in length, paler than the surrounding skin 2mm in diameter. There are no suture marks. There is mild tethering of the distal scar during elbow flexion.
Range of active right elbow joint motion was preserved.
Zero degrees extension and 140 degrees flexion. Symmetrical with the left side. Right forearm pronation and supination were measured at 90 degrees in each direction. This is symmetrical with the finding on the non-injured left side.
MRC Grade 4+/5 strength of resisted right elbow flexion and supination. There is Grade 5/5 power of resisted extension and pronation at the elbow.
The strength findings are consistent with the known right biceps pathology.
There is prominence of the proximal biceps in the upper limb consistent with a lesion of the distal biceps tendon.
I attempted to undertake grip strength testing using a Jamar Dynamometer, however, the reliability of testing on the right hand was insufficient.
Grip strength varied from 18 kg force to 30 kg force on the right, whereas on the left, there was consistent grip strength of 40 kg force.
When testing sensibility, there is reduced sensibility extending 10 cm distal to the distal horizontal scar, which lies just above the cubital fossa. There is partial sensibility in the territory of the median antebrachial cutaneous nerve.
There is normal sensibility in the distal half of the medial forearm.
SUMMARY OF INJURIES AND DIAGNOSIS
Mr Thompson suffered an avulsion injury to the distal tendon of the right biceps. Whilst there was an attempt at repair four months later, this was unsuccessful. There is mild reduction in sensibility in the medial aspect of the proximal right forearm, just distal to the horizontal scar at the site of the attempted biceps repair.
There is mild weakness of right elbow flexion in supination as anticipated from the known pathology.
There is a secondary condition of left shoulder pain related to preferential use of the left arm during his recovery. There is mild restriction of left shoulder motion.
There is restriction of motion at the right shoulder at this assessment. The claimant relates the right shoulder pain to his recent work as a cleaner.
ASSESSMENT OF IMPAIRMENT
RIGHT UPPER EXTREMITY
Impairment can be rated as a strength deficit from a musculoskeletal disorder (biceps tendon tear) with impairment assessed using the methodology set out in Section 16.8c, AMA 5 pages 509 – 511 and Table 16-35, AMA5, Page 510.
There is Grade 4 weakness rated as a 25% strength deficit for elbow joint flexion and supination, which corresponds to 5% and 4% upper extremity impairment ratings respectively.
That is, there is a total 9% upper extremity impairment rating for weakness across the right elbow.
Grip strength testing was not used in this case as it was apparent from assessment that there was pain inhibition operative when testing grip strength.
By contrast, there was a reliable finding when testing strength across the elbow due to the known biceps defect.
Sensory loss: there is reduced sensibility in the medial aspect of the proximal right forearm corresponding to the territory of the terminal branches of the medial antebrachial cutaneous nerve.
Impairment of the medial antebrachial cutaneous nerve attracts a maximum upper extremity impairment rating of 5% using Table 16-15 AMA 5, page 492.
I have applied a rating of 25% Sensory deficit, assessed using Table 16-10 AMA 5, page 482, as follows: There is distorted superficial tactile sensibility diminished to light touch without abnormal sensations of pain that is forgotten during activity.
When multiplied out, 25% of 5% equals 1.25%, rounded down to 1% UEI.
Combine the combined upper extremity impairment ratings of 9% and 1%, there is a 10% UEI.
Using Table 16-3 AMA 5 page 439, this converts to a 6% WPI rating.
LEFT UPPER EXTREMITY
There is restricted motion of the left shoulder.
I have assessed impairment using Figure 16-40, 16-43 and 16-46 AMA5 pages 476, 477 and 479 respectively as set out in the table below:
Shoulder Movements
Active ROM Measured
LEFT
Upper Extremity Impairment
AMA Guides (5TH Ed)
Flexion
160°
1%
Extension
50°
0%
Abduction
140°
2%
Adduction
50°
0%
Internal Rotation
90°
0%
External Rotation
90°
0%
TOTAL
3%
A 3% upper extremity impairment rating converts to a 2% WPI rating using Table 16-3 AMA5 page 439, to convert upper extremity impairment to whole person impairment.
SCARRING
I have rated scarring using the TEMSKI scale. Using the descriptors of the scarring as follows:
· The injured person is conscious of the scars.
· There is some contrast with the surrounding skin as the result of pigmentary change.
· The person can locate the locate the scars.
· There is no trophic change.
· There are no visible suture marks.
· The location of the scars can be seen with usual clothing.
· There is no contour defect.
· There is no effect on ADL.
· There is no treatment required.
· There is some adherence.
A 1% WPI rating is chosen using the principal of best fit.
COMBINED
The combined whole person impairment rating equals 6% combined with 2% combined with 1% which equals 9% WPI.”
The Panel agrees with the comprehensive assessment of Medical Assessor Home.
He has clearly explained his findings and reasons, having regard to all the submissions and the other medical evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 December 2023 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: | W7486/23 |
Applicant: | Brenton Thompson |
Respondent: | Arthur Tzaneros Discretionary Trust & Luke Webber Trust |
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:
| 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 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 | 24.08.20 | Chapter 2 | Table 16-35, AMA5, Page 510 and Table 16-10 and 16.15, Pages 482 and 492 | 6 | nil | 6 |
| Left upper extremity | 14.10.19 | Chapter 2 | Figs 16-40, 16-43 and 16-46, Pages 476, 477 and 479 | 2 | 0 | 2 |
| Scarring | 14.10.19 | Chapter 8, AMA Guides Chapter 14 WC Guides | Chapter 8, Table 8.2 TEMSKI, Table 14.1 | 1 | 0 | 1 |
| Total % WPI (the Combined Table values of all sub-totals) | 9 | |||||
0