Tono Holdings Pty Ltd v Heaney
[2023] NSWPICMP 391
•16 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tono Holdings Pty Ltd v Heaney [2023] NSWPICMP 391 |
| APPELLANT: | Tono Holdings Pty Limited |
| RESPONDENT: | Damian Heaney |
| Appeal Panel | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 16 August 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of whole person impairment (WPI) (cervical spine); whether the assessor erred in assessing a Diagnosis Related Estimate (DRE) category II impairment; whether he erred in allowing 2% for effects on the activities of daily living; whether he erred in failing to make a deduction for the effects of congenital fusion at C2/3; Held – Medical Assessment Certificate revoked and replaced. |
BACKGROUND TO THE APPLICATION TO APPEAL
Tono Holdings Pty Limited (the appellant employer) appeals from the Medical Assessment Certificate of Medical Assessor Anderson dated 27 March 2023.
Medical Assessor Anderson assessed a 15% whole person impairment (7% cervical spine, 9% left upper extremity – shoulder) as a result of injury on 12 December 2017, when Mr Heaney (the respondent worker) slipped while operating a chain ferry across a river system, grabbed some gratings with his left hand and severely wrenched his left shoulder complex.
The appellant submits that the Medical Assessor erred in his assessment of the cervical spine only, by:
(a) assessing a DRE category II impairment;
(b) adding 2% for effects on activities of daily living (ADL), and
(c) failing to make a deduction for the pre-existing condition of congenital fusion at C2/3.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
Submissions
The parties made written submissions which have been taken into account. They are not repeated in full, but are summarised briefly below.
The appellant submits as follows:
(a) With respect to the assessment of a category II impairment of the cervical spine:
(i)the Medical Assessor assessed a DRE category II impairment on the basis that there was “obvious dysfunction” without radiculopathy. On examination, he found there was generalised ache and tenderness of the cervical spine to either side of the midline, and pain and tenderness in the left scapula. These findings are not consistent with a category II impairment. They are consistent with category I, and
(ii)the reasons given to justify a category II impairment were insufficient.
(b) With respect to the allowance of 2% for effects on ADL:
(i)the reasons of the Medical Assessor disclose that the allowance of 2% for effects of the cervical spine condition on ADL was in fact made for the effects of the left shoulder condition;
(ii)the Guidelines do not permit such an allowance for the effects of impairment of the upper extremities, and
(iii)he gave inadequate reasons for assessing 2%.
(c) With respect to the pre-existing congenital fusion at C2/3:
(i)the Medical Assessor accepted the existence of the pre-existing condition;
(ii)he made no deduction for it on the express basis that it had no effect on neck function prior to injury. This amounted to a failure to address the applicable principles in Cole v Wenaline Pty Limited [2010] NSWSC 78, Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 254, and Ryder v Sundance Bakehouse [2015] NSWSC 526, and
(iii)his reasons were inadequate to justify the failure to make a deduction.
The respondent worker submits as follows:
(a) with respect to the cervical spine:
(i)the Medical Assessor found dysmetria and restrictions on movement, which is sufficient to justify a DRE category II impairment, and
(ii)the independent medical experts retained by the parties, Dr Patrick by the worker and Dr Hyde Page by the employer, likewise assessed DRE category II.
(b) With respect to the 2% allowance for effects on ADL:
(i)the Medical Assessor made an allowance of 2% on the basis that the worker needs assistance with heavy activities around the house such as mowing. That is consistent with the relevant provisions of the Guidelines, and
(ii)it was also consistent with Dr Patrick’s assessment, even if not consistent with the 0% allowance made by Dr Hyde Page, which is explicable on the basis that he found no need for assistance in household activities.
(c) With respect to the omission to make a deduction for pre-existing fusion at C2/3:
(i)the fact that Dr Patrick and Dr Hyde Page made deductions for the pre-existing condition did not compel the Medical Assessor to do so;
(ii)he took into account their assessments and explained why he differed in this respect, at least from the decision of Dr Patrick, to make a deduction, and
(iii)he made a deduction for a pre-existing condition of the left shoulder, which demonstrates that he understood and had in mind the principles relating to deductions for pre-existing conditions, and applied these principles in assessing the cervical spine.
Assessment of a DRE category II impairment
Paragraph 4.5 of the Guidelines provides that, in assessing the spine, the Diagnosis Related Estimate (DRE) method should be followed.
Par 4.18 provides:
“DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present. In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips. In assigning category DRE II, the assessor must provide detailed reasons why the category was chosen.”
Table 4.1 provides that clinical findings are used to place a worker in the relevant DRE category in accordance with Table 15.5 of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition) (AMA5). In the absence of clinically significant radiculopathy or fractures - none of which were found in this case – Table 15.5 provides the following criteria for assessing whether a worker falls within DRE category I or II:
Category I:
No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures.
Category II:
Clinical history and examination findings are compatible with a specific injury; findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or non-verifiable radicular complaints, …. no alteration of the structural integrity.
The Medical Assessor gave the following reasons for assessing a DRE category II impairment at [10b]:
“There is obvious dysfunction of the cervical spine although there is no radiculopathy. This therefore places Mr Heaney into DRE category II.”
The ‘obvious dysfunction’ to which he referred was detailed in his findings on examination at [5]:
“There was generalised ache in the cervical spine. This was mostly to each side of the midline where there was associated tenderness. There was also pain and some tenderness at the distal part of the left scapula although he [the worker] found that pressure on this area did actually give him some kind of relief.
Movement of the head and neck was slightly restricted, particularly with extension and lateral flexion to each side.”
It is unfortunate that the Medical Assessor did not expressly address the criteria in Table 15.5. The requirement for ‘detailed reasons’ pursuant to part 4.18 of the Guidelines was not satisfied. The presence of symmetrical aches or pains in the cervical spine, and symmetrical losses of range of motion, were alone insufficient to satisfy the criteria for category II impairment.
The failure to give adequate reasons for assessing a DRE category II impairment demonstrates error, and necessitates the Medical Assessment Certificate being set aside.
Allowance for effects on ADL
Paragraph 4.35 of the Guidelines provides that an allowance of 2% for the effects on ADL may be made in respect of the spine:
“…if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances”.
An allowance of 1% is appropriate “for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
It was well open to the Medical Assessor to consider that mowing lawns was of an equal magnitude to household tasks such as vacuuming and making beds, and of greater magnitude than gardening as a hobby. On that basis, an allowance of 2% whole person impairment would have been open to the assessor on the evidence, provided the inability to mow lawns resulted from impairment of the cervical spine.
The Medical Assessor gave the following explanation at [4] under the heading, Social activities/ADL
“At home, he will try to do a lot of the housework although [he] experiences occasional, severe, sharp pain at the distal part of the left scapula. They pay for somebody to cut the grass.”
Doing our best, we interpret this passage to mean that the worker’s ability to mow the lawns is adversely affected by sharp pain in the distal part of the left scapula. The scapula bone forms part of the shoulder complex. It does not form part of the cervical spine. In assessing the cervical spine, the effects on ADL of the condition of the shoulder are irrelevant.
By taking into account the effects of the condition of the shoulder, the Medical Assessor took into account an irrelevant consideration. That, too, demonstrates error and necessitates the setting aside of the Medical Assessment Certificate.
Deduction for pre-existing condition
At [6] the Medical Assessor noted the results of a CT scan and MRI scan of the cervical spine conducted on 23 August 2019 and 18 October 2019 respectively as follows: “Congenital fusion at C2/3 …”
In determining whether to make a deduction for a pre-existing condition or abnormality pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998, it was the assessor’s task to determine whether there was a pre-existing condition or abnormality and, if so, to assess whether it currently contributed to permanent impairment.
In the absence of any finding that the reports of the scans were inaccurate, we accept that he was satisfied that the congenital fusion at C2/3 existed prior to injury.
He was then required to address the second issue: whether the pre-existing condition or abnormality was currently contributing to impairment.
At [10c], he noted that Dr Patrick had deducted 1/10th for the effects of the pre-existing congenital fusion at C2/3, but said he was not persuaded that a deduction was necessary. Noting that Dr Hyde Page had made a similar deduction, he continued:
“With great respect, I would draw attention [to the fact] that despite this congenital fusion, which really had [sic, made] no practical difference in [sic, to] the function of Mr Heaney’s neck beforehand, he was able to carry out a whole range of physically very active and arduous activities until the time of his injury. Therefore, no deduction is applied on this assessment.”
The mere fact that a pre-existing condition or abnormality did not impair function prior to injury, neither compels nor justifies an assumption that the condition does not now contribute to impairment. For instance, a condition which was asymptomatic prior to injury may nevertheless be capable of contributing to current impairment, depending on the facts of the case: Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254. It will contribute to impairment if, but for the pre-existing condition, the current impairment would not be as great as it is. As Campbell J observed in Ryder v Sundance Bakehouse [2015] NSWSC 526 – emphasis added:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
The Medical Assessor did not turn his mind to this issue. The test in Ryder was not applied. The failure to do so demonstrates error, and necessitates the setting aside of the certificate.
In our view, it is not reasonably possible to correct the error without at least a diagnosis of the condition of the cervical spine as a result of injury. Unfortunately, the Medical Assessor did not offer a diagnosis.
Accordingly, the Panel referred the worker for examination by Medical Assessor Home, who is a member of the panel.
Report of Medical Assessor Home
His report follows.
“PAST MEDICAL HISTORY
Mr Heaney reports a past history of left shoulder dislocation sustained at the age of 19 when he fell from a horse. He subsequently underwent a left shoulder stabilisation procedure. He recalls no ongoing symptoms of instability following the procedure.
He does not recall a history of left shoulder pain or restricted left shoulder motion in the period leading up to the subject accident.
There is no prior history of neck pain. There is no other relevant medical or family history.
DETAILS OF THE WORKPLACE ACCIDENT
Mr Heaney states that he sustained injuries to his left shoulder and neck in a workplace accident on 12 December 2017. He states that he slipped on a metal grate causing him to do the spits. He said that he grabbed onto a handrail with his left hand as his body twisted, such that his left shoulder was forcibly adducted across his body. He recalls the immediate onset of left shoulder pain. He reported the incident to his supervisor. He completed the shift.
He recalls that after he drove home, he was retrenched by his employer.
DETAILS OF SYMPTOMS AND TREATMENT FOLLOWING THE ACCIDENT
He tells me that he attended his doctor the following day. He attended Dr Rojo. He was referred for imaging of the left shoulder.
He also recalls early symptoms of a painful right rib-cage, where his chest struck the rail. Those symptoms have resolved.
After review by his general practitioner, he was referred on for imaging of the shoulder. He was then referred for physical therapy.
He also experienced early left-sided neck pain. However, he recalls that the focus of treatment was his left shoulder.
He was later referred to Dr Jai Kumar, shoulder surgeon.
He confirms that he underwent surgery under the care of Dr Kumar at Lingard Private Hospital on 18 July 2018, consisting of capsular release, synovectomy, removal of a loose body, humeral ostectomy and biceps tenodesis with subacromial bursectomy.
He has been told that he suffers from advanced glenohumeral joint arthritis. He has undertaken vigorous physical exercise including current exercise at a gymnasium which he attends thrice weekly. He tells me that he primarily utilises bands but also has the use of upper limb strengthening machinery.
His symptoms have plateaued over recent years. There are no current plans for further treatment.
He reports the current use of Lyrica 150mg once to twice daily and Meloxicam one tablet daily.
He has also received physical therapy directed toward his neck.
He has undergone EMG examination on two occasions to investigate upper limb paraesthesia. He has been told that he may be suffering from carpal tunnel syndrome, however, the EMG examinations have been normal.
CURRENT SYMPTOMS
Mr Heaney reports intermittent neck pain, present most of the day, of average intensity of 4-5/10, increasing to 7/10 with symptom exacerbation. The pain is worse on the left side. He finds that movement is more difficult to the left side and when looking upward (cervical extension).
He describes intermittent paraesthesia in all of the digits of both hands that can also wake him from sleep.
At the left shoulder, he reports pain felt anteriorly, laterally and posteriorly. There is marked restriction of shoulder mobility. He cannot lay over his left shoulder at night. He limits lifting to no more than a kilogram or two with his left hand.
He is able to lift moderate weight with his right hand. He primarily steers his motor vehicle using his right hand with his left hand in his lap. He makes greater use of his mirrors when driving. He is able to stabilise the wheel with his left hand as necessary.
There is no disability for standing, walking, forward bending at the waist, crouching, kneeling or stairclimbing.
He is independent for activities of self-care.
He is right hand dominant.
SOCIAL HISTORY
He is engaged. He lives with his fiancé.
He undertakes a share of domestic chores including cooking, dishwashing, bench-height cleaning and placing clothes in the washing machine. His fiancé hangs the washing and performs most of the heavy chores. He is able to perform vacuuming using his right hand.
He confirms that his capacity for heavier domestic chores is limited by his shoulder pain, rather than neck pain. He does undertake a share of grocery shopping.
He has not resumed playing tennis, abseiling, mountain climbing, surfing, fishing and boating due to his shoulder complaint.
VOCATIONAL HISTORY
He primarily worked as a boilermaker throughout his life. He was working as a ferryman for a short period before the subject accident.
Since the accident, he has attempted to return to light boiler making duties but has found it difficult to cope with the manual handling requirements.
PHYSICAL EXAMINATION
On examination, Mr Heaney is a 50 year old standing 182cm and weighing 84kg.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. Active cervical flexion is performed to normal range, extension 4/5 normal range, right rotation 5/6 normal range, left rotation 1/2 normal range, right lateral flexion 3/4 normal range and left lateral flexion 3/4 normal range. There is dysmetria of left-sided motion and in cervical flexion and extension.
The neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is reduced sensibility at the tip of the left thumb. The sensibility elsewhere in the left and right upper limbs is normal and symmetrical. The deep tendon reflexes are symmetrically preserved. There is no local muscle wasting.
SUMMARY OF DIAGNOSES
Cervical spine – soft tissue injury. There is very mild underlying degenerative change. There is a congenital fusion at C2/3.
EVALUATION OF PERMANENT IMPAIRMENT – CERVICAL SPINE
Impairment is determined using the methodology set out in the Workcover NSW Guides for the Evaluation of Permanent Impairment 4th Edition and the American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition, as follows:
Cervical spine
The clinical presentation is consistent with a DRE Cervicothoracic Category 2 impairment rating.
There is evidence of asymmetrical and non-uniform loss of range of motion in the cervical spine in both the flexion-extension plane and in the rotation plane.
Using the methodology set out in AMA 5, table 15-3, page 384, a 5% whole person impairment rating baseline applies.
There is further impairment determined using the methodology set out in Sections 4.33 to 4.35 of the Workcover Guidelines in relation to the impact of the condition upon a workers capacity for activities of daily living.
There is a 1% WPI rating, as the cervical spine condition does prevent the worker from returning to his previous sporting and recreational activities which include, running, abseiling, mountain climbing, surfing, fishing and boating.
Even if it were not for the left shoulder condition, the worker’s cervical spine condition would prevent him from returning to activities [such] as running and the other physical activity associated with playing tennis, and the [neck] positional requirements of surfing.
The worker’s cervical spine condition does not affect his capacity for usual household tasks such cooking and vacuuming, shopping, climbing stairs or walking reasonable distances.
A 1% WPI rating applies for the impact of the cervical spine condition upon his capacity for ADLs.
5% combined with 1% for ADLs yields a total of 6% WPI for the cervical spine.
The final whole person impairment rating for the cervical spine condition is 6%.
Whether deduction available for pre-existing conditions of the cervical spine
CT and MRI scans dated 23 August 2019 and 18 October 2019 respectively demonstrated congenital fusion at C2/3 and ‘relatively minor degenerative changes throughout’ the cervical spine.
Congenital fusion of that kind occurs from birth. I am satisfied that it existed prior to injury on 12 December 2017.
However, that fusion was asymptomatic prior to injury, and caused no impairment. I was unable to find on examination any evidence that it is now symptomatic. The injury that occurred in 2017 was a wrenching of the soft tissues of the cervical spine. So far as I can determine, it did not affect the spine at C2/3.
The assessment of DRE category 2 impairment (cervical spine) is based on clinical findings of spinal dysmetria. Spinal dysmetria does not result from the pre-existing C2/3 fusion. The pre-existing abnormality did not make made a difference to the outcome in terms of the degree of impairment resulting from the work injury.
The scans do not demonstrate the existence of degenerative disease prior to injury on 12 December 2017. Such changes as were present in late 2019 were reported as ‘minor’ only. They may well have arisen after injury.
It is concluded that the they did not pre-date the injury.
Therefore, no deduction is made.
Combined whole person impairment
The whole person impairment rating of 9% for the left shoulder as assessed by Dr Anderson is combined with 6% for the cervical spine, equalling 14% using the combined values chart. (AMA5 Page 604-606).”
Conclusion
The Panel accepts the clinical findings of Medical Assessor Home. It finds that the effects of injury on ADL’s merit an addition of 1%, for the reasons expressed by him.
With respect to the allegation that a deduction for a pre-existing condition or abnormality is warranted in respect of the cervical spine, CT and MRI scans dated 23 August 2019 and 18 October 2019 respectively demonstrated congenital fusion at C2/3 and ‘relatively minor degenerative changes throughout’ the cervical spine.
Congenital fusion occurs from birth. We are satisfied that it existed prior to injury on 12 December 2017.
However, as Medical Assessor Home observed, that fusion was asymptomatic prior to injury, and caused no impairment. No finding was made by him that any symptoms were referable to the fusion at that level. We are not satisfied that it is now symptomatic. The injury that occurred in 2017 was a wrenching of the soft tissues of the cervical spine. It neither caused the fusion at C2/3 nor, so far as the evidence goes, rendered it symptomatic. In addition, the assessment of a DRE category II impairment relies on clinical findings of dysmetria. There is no causal connection between the C2/3 fusion and dysmetria.
As the fusion does not produce spinal dysmetria, symptoms or any other form of impairment, it does not now contribute to permanent impairment.
The scans do not demonstrate the existence of degenerative disease prior to injury on 12 December 2017. Such changes as were present in late 2019 were reported as ‘minor’ only. They may well have arisen after injury. Neither their appearance in the later scans of 2019, nor their extent, compel a finding that they pre-dated the injury. We are not satisfied that they did.
For those reasons, neither the fusion at C2/3 nor the degeneration demonstrated by scans in late 2019 currently contributes to permanent impairment. No deduction is available.
The Medical Assessment Certificate of Medical Assessor Anderson is revoked and replaced with the attached Medical Assessment Certificate.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7998/22 |
Applicant: | Damien Heaney |
Respondent: | Tono Holdings Pty Limited |
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 Anderson 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) |
| Cervical spine | 12/12/17 | Ch 4 P 24 | P 392 | 6 | 0 | 6 |
| Left upper extremity (shoulder) | Ch 2 P 10 | P 476 P 477 P 479 P 439 | 10 | 1/10 | 9 | |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
3
0