Tran v Jalco Powders Pty Ltd
[2021] NSWPICMP 22
•15 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tran v Jalco Powders Pty Ltd [2021] NSWPICMP 22 |
| APPELLANT: | Hoa Van Tran |
| RESPONDENT: | Jalco Powders Pty Ltd |
| APPEAL PANEL: | 15 March 2021 |
| DATE OF DECISION: | Ms Deborah Moore Dr David Crocker Dr James Bodel |
| CATCHWORDS: | WORKERS COMPENSATION- Challenge to the manner in which the Medical Assessor (MA) conducted his assessment; appellant presented in a guarded manner; MA unable to utilise ROM for assessment and used an analogous condition; Held- MA entitled to use analogous condition; no error in the assessment; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 October 2020 Hoa Van Tran lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greg McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 September 2020.
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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although it was requested, no reasons were provided, and for reasons that we will elaborate on in due course, we do not consider that any re-examination would assist us.
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.
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 (MA) erred in the manner in which he assessed impairment.
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 MA for assessment of whole person impairment (WPI) in respect of both upper extremities (shoulders) and scarring (TEMSKI) resulting from a deemed date of injury of 21 January 2016.
The MA obtained the following history:
“Mr Tran started work at Jalco in 2004 as a process worker/machine operator. He describes his work as repetitive stacking of boxes onto pallets. He said that over the years he would develop various aches and pains involving predominantly the neck, the back and the shoulders. He would see his GP occasionally and was given medication and acupuncture. Some scans performed in 2005 had demonstrated some full thickness supraspinatus tears. Mr Tran, however, kept working at his normal duties. He did this until 6 October 2015 when he was admitted to Liverpool Hospital with multiple joint pain and swelling. He was seen by Rheumatologist, Dr Kane, there and subsequently Dr Rosario, Rheumatologist. He was diagnosed with a B27 related spondyloarthropathy. This responded reasonably well to medication which included Prednisone and Methotrexate.
Following that he did not return to work. He was investigated in October 2015 and this once again demonstrated the full thickness supraspinatus tears. He was subsequently referred to Dr Herald, Orthopaedic Surgeon. He organised MRI scans of the shoulders which confirmed the supraspinatus tears. He had medication, physiotherapy and exercise programmes. His problems continued.
Dr Herald recommended surgery but this was not performed for some time. The first was on the right on 19 July 2018 in the form of a rotator cuff repair, acromioplasty and biceps tenodesis. He said that he had on-going problems but he then proceeded to have similar surgery on the left on 7 May 2019 in the form of an arthroscopic rotator cuff repair.
He continued to see Dr Herald because of pain and restriction of range of movement of the shoulders. He saw him in early 2020 and he organised MRI scans and on the right the repair was intact and on the left there was a healing repair which had not completely healed.
There was no suggestion that he have any further surgery.”
Present symptoms were described as follows:
“With regard to his shoulders, his problem is worse on the right than the left. He said that there is constant pain and this is made worse by any movement. He says he has significant restriction of range of movement, particularly of his right shoulder. His main problem is elevation and rotation. He can only lift light objects. Any load on the arms reproduces his shoulder pain.”
The MA then set out details of the appellant’s prior medical history as follows:
“When working at Zamplas from 1994 Mr Tran developed a clinical picture which is very similar to that with which he presents today. He had neck and back pain and predominantly right shoulder pain. This was attributed to the nature and conditions of his work. He was terminated from there on 3 December 1999 and he subsequently received a settlement for impairment involving these body parts. He then didn’t work for another four years before he started working at Jalco Powders. Mr Tran said that during his time off work his symptoms resolved and he was able to then start work again.”
As regards his general health, the MA said:
“Mr Tran has been diagnosed with a B27 related spondyloarthropathy. This affected multiple joints.
He has been diagnosed with cervical and lumbar spondylosis and this was present in 1998 and persisted and he still has on-going neck and low back pain.”
He added: “He was off work until 2004 when he started working at Jalco and he worked there until 6 October 2015 when he developed the acute onset of polyarthropathy.”
Findings on physical examination were reported as follows:
“Mr Tran’s wife helped him undress and dress for the purpose of this assessment. He was noted to hold his arms protectively by his side at all times, particularly the right. There was some possible posterior shoulder muscle wasting bilaterally but there was no asymmetry regarding this.
Well healed arthroscopic portals were noted over the shoulders and these were small apart from a 1cm scar over the deltoid area of the right shoulder which was somewhat noticeable by colour contrast but otherwise the scars didn’t have any contour defect. There were no suture marks visible. There was no adherence.
I attempted to assess range of movement of the shoulders. Mr Tran basically would not move his right shoulder and kept it firmly tucked against his body. On occasions there was some separation on forward flexion to 20 degrees and abduction to 30 degrees but repeated measurements were different ranges in between. Backward extension was 0 to 10 degrees and adduction nil. He displayed a small range of internal and external rotation but this could not be properly assessed as he kept his elbow close to his side as he rotated his arm.
On the left, there was some movement but this was once again inconsistent with flexion being to a maximum of 90 degrees and extension a maximum of 30 degrees but different ranges in between. Similarly, abduction was to a maximum of 90 degrees and adduction a maximum of 20 degrees. He did display internal and external rotation to a maximum of 70 degrees.
Passive range of motion was not attempted.”
After documenting the radiological material he had before him, the MA summarised the injuries as follows:
“Mr Tran has undergone surgery involving both shoulders because of a radiological diagnosis of rotator cuff tears which I expect were degenerative. He has on-going pain and restriction of range of movement of the shoulders.
This is on the background of polyarthropathy and his complaints range back to his previous employment in the late 1990’s. His condition is allegedly due to the nature and conditions of his work.”
As regards the appellant’s presentation, the MA said:
“On assessment of range of movement of the shoulders it was noted to this was self limited and through a variable range. He is subsequently not suitable for the assessment of impairment. It is noted that movement was at the glenohumeral joint only with no attempt to use accessory mechanisms to elevate the arms. I explained to Mr Tran via the interpreter the importance of making a consistent effort when attempting range of motion but this did not alter his presentation.”
The MA assessed 2% WPI in respect of each upper extremity, and 0% for scarring.
He explained his calculations as follows:
“In this situation I refer to WorkCover Guidelines, Section 1.36, which 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 effort. The assessor must use their entire range of clinical skill and judgement 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.’
In this situation the range of motion displayed to various doctors is not consistent. Recent MRI scans of the shoulders have not suggested a cause for the severe restriction of range of movement that he demonstrates. Subsequently, range of motion cannot be used to assess impairment.
In this situation I refer to WorkCover Guidelines, Section 1.23, with regard to an analagous condition. The guidelines state that if range of motion cannot be used to assess impairment an analagous condition can then be used. In this case I refer to the Guidelines, Section 2.16, where a diagnosis of impingement can be made when there is no loss of range of motion, this is 2% WPI and I have applied this to each shoulder.
For scarring, according to the TEMSKI scale, I have estimated that the best fit for scarring is 0% WPI. The only noticeable scar is a 1cm scar over the right deltoid with the other scars being non-complicated surgical scars with no suture marks visible, minor colour contrast only, no contour defect and no adherence and the scars are always covered by his usual clothing.”
The MA then commented upon the other medical opinions as follows:
“Dr G Mahony, Orthopaedic Surgeon, supplied a medico-legal report dated 21 June 2000. Dr Mahony noted problems with Mr Tran’s neck, back and shoulders which were a result of the nature and conditions of his work in a soft drink factory from 1994 to 1999. Dr Mahony’s examination findings demonstrated that Mr Tran limited abduction of the shoulders to 90 degrees with no rotation bilaterally. He estimated 7% loss of efficient use of the right upper extremity but did not make an assessment with regard to the left.
Dr D Johnson, Rheumatologist, supplied a medico-legal report dated 2 January 2001. He outlined problems with Mr Tran’s neck, back and shoulders as a result of the nature and conditions of his employment with Zamplas from 1994. He noted significant pain behaviour and estimated a Chronic Pain Syndrome.
Dr L Rosario, Rheumatologist, supplied treating doctor reports from 15 June 2016, outlining Mr Tran developing polyathropathy which he diagnosed as a B27 related spondyloarthropathy affecting multiple joints.
Dr G Carr, Rheumatologist, supplied a medico-legal report dated 18 July 2017. Dr Carr reasoned that the conditions that Mr Tran complained of were due to his underlying polyarthritis and not work related.
Dr John Watson, Orthopaedic Surgeon, supplied medico-legal reports dated 24 February 2016 and 5 March 2018. He also felt that Mr Tran’s condition was due to inflammatory arthritis unrelated to his work.
Dr J Herald, Orthopaedic Surgeon, presented treating doctor reports until 23 March 2020. He outlines his management of Mr Tran’s shoulder conditions as has been outlined in the body of the report above. In his last report on 23 March 2020 he documented a more significant range of movement of the shoulders than Mr Tran demonstrated on my assessment today.
Dr M Dias, Rehabilitation Physician, supplied a medico-legal report dated 16 December 2019. Dr Dias was of the opinion that the multiple symptoms demonstrated by Mr Tran were all related to the nature and conditions of his work. With specific regard to the shoulders, he used range of movement to assess 15% WPI on the right, 10% WPI on the left and he found 1% for scarring. Dr Dias did not comment as to whether or not there was any self limitation of range of movement or inconsistencies. I do not agree with the estimation of 1% for scarring as I felt that the best fit according to the TEMSKI scale was 0%.
Dr A Smith, Orthopaedic Surgeon, submitted a medico-legal report dated 19 February 2020. Dr Smith found that there was self limitation of range of movement and inconsistent range of movement and subsequently range of movement could not be used to assess impairment. My findings are similar to those of Dr Smith with regard to this. He estimated 0% WPI for scarring and I would agree with that.”
Finally, the MA considered whether any deduction for a pre-existing condition was warranted. He said:
“Investigations involving the shoulders demonstrated significant degenerative changes and I expect that the rotator cuff tears were degenerative. It is noted in a medical report from 2000 that Mr Tran displayed significant restriction of range of movement of the shoulders. A deduction would be warranted under the circumstances but as I have used an analagous condition I have not made a deduction for the pre-existing conditions.”
The appellant makes the following submissions:
a. The MA only relies on written scan reports, he indicated he did not have any scans;
b. There is no indication whether the MA in his attempt to examine the worker used a goniometer or inclinometer;
c. Impairment should only be calculated using active ROM measurements;
d. If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation;
e. If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present;
f. ROM and Passive ROM can be used to assess the injury but the AMS may modify the assessment under 1.36. It is indicative the AMS pre-judged the assessment on the MRI reports and the examination is contrary to the history and findings in the medical reports;
g. The diagnosis and conclusions made by the AMS are inconsistent with his findings in the MAC and the medical evidence. Namely, the worker was diagnosed with Chronic Pain Syndrome, polyathropathy and spondylorapthy [sic]. There is no indication in the MAC the AMS attempted to reconcile this medical history during the clinical examination and the AMS merely concluded the applicant was self-limiting and not making an effort, despite evidence of pain, restriction and surgery;
h. The MA used incorrect criteria and made a demonstrable error when he referred to his assessment of an “analogous condition” and utilised Chapters 1.23 and 2.16…This is incorrect criteria and contrary to all the medical evidence on file;
i. The appropriate assessment to be conducted would be pursuant to Chapter 2.14 of the Guides which is more consistent with the diagnosis and surgeries on bilateral shoulders….
We will deal with each of the submissions in turn.
To begin with, there is no requirement for the MA to review medical imaging scans as opposed to reports of the medical imaging, particularly when the appellant failed to provide any such scans.
Other medical practitioners had reported on the scans; they formed part of the documentation referred to the MA such that in our view he was entitled to rely on those reports, and we cannot see any error in this respect.
The subsequent submissions essentially deal with the manner in which the MA made his assessment.
Firstly, as the respondent correctly points out:
“There is a presumption of regularity with respect to how the AMS conducted his examination of the Appellant, and given that, it is to be presumed, unless there is evidence to substantiate the contrary, that the AMS did perform the tests outlined in chapter 2 of the Guidelines…There is no evidence submitted by the Appellant to rebut that presumption.”
Indeed, the MA mentioned chapter 2 of the Guidelines when he said: “In this case I refer to the Guidelines, Section 2.16, where a diagnosis of impingement can be made when there is no loss of range of motion, this is 2% WPI and I have applied this to each shoulder.”
In these circumstances, we are satisfied that the MA properly conducted his examination of the appellant.
It is abundantly clear to us that the appellant actively resisted all efforts at examination.
As the MA said: “‘I attempted to assess range of movement of the shoulders. Mr Tran basically would not move his right shoulder and kept it firmly tucked against his body.”
There is evidence that the MA performed repeated testing to attempt to obtain a reliable measurement of range of motion. As he said: “repeated measurements were different ranges…”
We agree with the respondent’s submission that:
“Given the AMS has made reference to various measurements, it can be implied the AMS used a goniometer or other instrument. In the event he did not, this would not contravene the Guidelines. Paragraph 2.5 states a goniometer or inclinometer must be used ‘where clinically indicated’. In circumstances where a worker is essentially not moving a shoulder and keeping the arm tucked against his body, that would constitute a circumstance where use of a goniometer or inclinometer is not clinically indicated.”
In any event, paragraph 2.5 of the Guidelines states that: ‘if there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation.”
We are also satisfied that there was clear evidence of inconsistency in the appellant’s presentation to the MA as noted in his findings on examination. He did not present in the same manner to Dr Dias, but seems to have presented similarly to Dr Smith.
As regards the submission that the MA’s diagnosis and conclusions are inconsistent with his findings in the MAC and the medical evidence, we do not accept this submission.
The MA obtained a detailed history of the appellant’s prior injuries and conditions, which he noted and explained in the MAC.
The MA was unable to assess permanent impairment based on range of motion because of inconsistency. There is no evidence that he either did not consider or rejected the symptoms complained of by the appellant. His task was to assess impairment resulting from the injury.
He clearly took note of all the evidence, both radiological and other medical opinions: they are set out in some detail in the MAC.
Again, as the respondent correctly points out:
“Paragraph 1.36 of the Guidelines refer to inconsistent presentation and the AMS applied that guideline appropriately. It is irrelevant whether presentation is inconsistent due to the presence of other medical conditions that impact on a worker, or whether there is inconsistency because of self-limitation of movement. It is only necessary that there is inconsistency in order for paragraph 1.36 to be applied.
The Appellant has not challenged the finding of the AMS that there was inconsistency in presentation.”
Paragraph 2.5 of the Guidelines states that if there is inconsistency, range of motion should not be used as a valid parameter of impairment evaluation.
Given the inconsistent presentation to which we have referred, the MA could not assess impairment based on range of motion.
In those circumstances, he correctly applied paragraph 1.23 of the Guidelines which permits assessment for an analogous condition. It states: The assessor must stay within the body part/region when using analogy.” The assessor is also entitled to use his own judgment as to which analogous condition to apply.
The MA did this by applying paragraph 2.16 of the Guidelines which states: “Diagnosis of impingement is made on the basis of positive findings on appropriate provocative testing and is only to apply where there is no loss of range of motion…an impairment rating of…2% WPI shall apply.”
Finally, we are not persuaded that chapter 2.14 of the Guidelines would be more consistent with the diagnosis and the shoulder surgery which the appellant had, because ROM was not possible to assess due to his presentation to which we have referred.
As regards the appellant’s request for re-examination, given his presentation to the MA, we do not think that any such re-examination would achieve a different result, such that we have declined to conduct any further examination.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 September 2020 should be confirmed.
Deborah Moore
Member
Dr David Crocker
Medical Assessor
Dr James Bodel
Medical Assessor
15 March 2021
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