Trustees of the Marist Brothers v Mohamed

DETERMINATION OF APPEAL PANEL
CITATION:	Trustees of the Marist Brothers v Mohamed [2022] NSWPICMP 225
APPELLANT:	Trustees of the Marist Brothers
RESPONDENT:	Hassan Abdi-Hashi Mohamed
APPEAL PANEL:	Member Deborah Moore Dr David Crocker Dr Tommasino Mastroianni
DATE OF DECISION:	12 May 2022
CATCHWORDS:	WORKERS COMPENSATION- The Panel determined that the Medical Assessor erred in the methodology of assessment with respect to the upper extremities, failed to assess the left elbow and scarring, and may have erred in the section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction such that a re-examination was required; the worker’ presentation was inconsistent such that the range of motion method was not appropriate; Held- on re-examination, many of the original findings were confirmed, and on assessment of all body parts, and a section 323 of the 1998 deduction, Medical Assessment Certificate was revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 December 2021 Trustees of the Marist Brothers (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Mohammed Assem, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 1 December 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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 the worker should undergo a further medical examination. The Panel determined that the MA erred in the methodology of assessment with respect to the upper extremities, failed to assess the left elbow and scarring, and may have erred in the s 323 deduction such that a re-examination was required.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Medical Assessor Tommasino Mastroianni of the Appeal Panel conducted an examination of the worker on 20 April 2022 and reported to the Appeal Panel on 24 April 2022.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that the MA erred in his assessment based on incorrect criteria in adopting the 'range of motion method' of assessment for the assessment of the left and right shoulder, contrary to the Guidelines, where inconsistencies were present, and failed to make a deduction for pre-existing injury, abnormality or condition pursuant to section 323 of the 1998 Act, for assessment of the lumbar spine and both shoulders.
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 worker was referred to the MA for assessment of whole person impairment (WPI) in respect of injuries to the lumbar spine, scarring, left upper extremity (elbow and shoulder) and right upper extremity (shoulder) sustained on a deemed date of injury of 3 May 2013.
The MA obtained the following history:
“Mr Mohamed was working as a full-time laundry assistant. His duties involved the laundering of items, light clothing, blankets, towels, linen and uniforms for seven boarding schools within the Catholic school system. Towards the end of 2008, he was provided with heavy work that involved repetitive bending, lifting, twisting, pushing and pulling. He was required to load the washing machine which had a capacity to take 90kg of clothing. After the washing cycle, he was required to reach into the machines and pull heavy wet clothes that were often tangled. As a result, he began to develop pain around his lower back in around 2008 or 2009 due to the nature and conditions of his employment. An x-ray of the lumbar spine was arranged in 2009 as his symptoms were getting worse. He persevered at work performing his pre-injury duties. He noticed that his symptoms were better during the summer holidays and would flare from the heavy nature of his work. In around 2011, he began developing tingling and numbness down his right leg and foot.
He was referred for a CT scan of the lumbosacral spine on 3 January 2012 that identified a non-acute fracture to the superior aspect of the anterior vertebral body of L4. The L3/4 disc was markedly degenerate associated with mild central foraminal stenosis and severe facet joint arthropathy at the left L5/S1 level.
He also developed pain in both shoulders, worse on the right. On 25 May 2011,
Dr Yehia documented a two month history of recurrent shoulder pain. He was referred for a shoulder ultrasound on 22 October 2011. He subsequently hit his right elbow on the laundry machine for an x-ray and ultrasound of his right elbow.
In 2012, he was given three epidural injections into his lower back that provided temporary relief. His left shoulder and elbow symptoms also increased in intensity. He was advised that there was a tear to his left shoulder and inflammation involving his elbow. He was prescribed Tramadol and non-steroidal anti-inflammatory medication. He was referred for physiotherapy treatment and given an ultrasound guided cortisone injection to this left shoulder that provided temporary relief.
In April 2013, he was given lighter duties at work that he managed for a couple of weeks. After upgrading to his pre-injury duties, his back, shoulder and elbow symptoms increased in intensity. Dr El Arif certified him unfit to work from 13 May 2013. An ultrasound of his left shoulder on 13 August 2013 identified a full thickness tear to the mid supraspinatus, partial articular-sided tear of the subscapularis and subacromial / subdeltoid bursitis. He was given an ultrasound guided cortisone injection to his left shoulder on 28 August 2013 that provided temporary relief. A further injection on 26 September 2013 also provided temporary relief.
He was reviewed by Dr Dan, Neurosurgeon on 31 October 2013 and noted to have reduced sensation in the lateral aspect of his right foot. Dr Dan reviewed a CT scan of the lumbar spine on 23 April 2013 that showed a disc extrusion that was sequestrated to the right and compressing the right L5 nerve root and lateral recess. An MRI scan on 16 May 2013 showed an extrusion with the right L5 nerve root.
In around October 2013, he began ambulating with the assistance of a walking stick or crutch for support. He was reviewed by Dr Darwish, Neurosurgeon who recommended further cortisone injections into his lumbar spine. He performed a right L4/5 discectomy and right L5 nerve rhizolysis on 2 June 2017 with a complete resolution of his leg pain. Unfortunately, there was a gradual recurrence of his back and leg symptoms that he managed with analgesia and non-steroidal anti-inflammatory medication.”
The MA added:
“He believes that his condition has deteriorated. He is reporting increasing pain, stiffness and weakness in his shoulder and back. He has difficulty sleeping at night and is no longer able to support his family. He did not undergo any further investigations or receive any further treatment.”
Current treatment consisted of “Tramal, Panadeine Forte and Lyrica”.
Present symptoms were noted as follows:
“Mr Mohamed complains of constant severe pain involving his back, both shoulders and left elbow. He is relying heavily on the support of a walking stick. There is pain and numbness involving his right leg and loss of sensation on the dorsal aspect of his right foot. He rates the discomfort as 10/10 on a visual analogue scale.”
As regards his social activities and activities of daily living (ADL’s) the MA said:
“He lives with his wife and 11 of his 13 children in a five bedroom apartment at Lakemba. He is struggling with all aspects of his domestic activities of daily living and some aspects of his personal care. He relies on his relatives for transport.”
Findings on physical examination were reported as follows:
“Mr Mohamed appeared to be in obvious discomfort. He ambulated with the assistance of a Canadian crutch in his left arm. He appeared to be leaning heavily on the crutch, avoiding weight bearing on his right leg.
Clinical examination was difficult as there was widespread tenderness on light superficial palpation of his shoulders, left elbow and back. He was reluctant to move his right shoulder or left shoulder fearing that it is going to hurt his back. Passive movements were accompanied by complaints of severe pain. He was advised that to cooperate and exert maximal effort without causing harm or injury. He again demonstrated pain behaviour with any movement of his shoulders. He had difficulty dressing and undressing relying heavily on assistance of his brother. He was noted to have better movement during distraction.
He demonstrated normal left elbow movements but now has tenderness over the left medial epicondyle. Provocative tests for epicondylitis could not be performed due to a lack of cooperation. Right elbow movements were now limited from 20 to 40 degrees. His movements were slow purposeful and accompanied by pain behaviour. He was unable to touch his chin with his right hand.
There was minimal movement to his lumbar spine. He was unable to sit on the examination couch. With verbal encouragement and assistance, he was able to partially sit on the examination couch so that I could examine his reflexes. His lower limb reflexes were brisk and symmetrical. There was no measurable difference in the circumference of his calves. Power and sensation were globally reduced but worse in the LS nerve root distribution. Neural tension signs could not be tested.”
The MA then set out the extensive radiological material he had before him.
He then summarised the injuries and diagnoses as follows:
“Mr Mohamed is a S3-year old right hand dominant man who was employed as a laundry assistant. He was working in a commercial laundry repetitively loading and unloading clothing from industrial washing machines. As a consequence, he developed pain in his lower back, both shoulders and left elbow. There is radiological evidence of a full thickness tear involving the left supraspinatus, moderate left lateral epicondylitis with a small substance tear and right shoulder subacromial bursitis with diffuse rotator cuff tendinopathy and features of adhesive capsulitis.
A CT scan of his lumbar spine on 3 January 2012 showed markedly degenerative disc at the L3/4 level and severe left sided facet joint arthropathy at the LS/S1 level. There was a broad- based disc bulge at L4/S but not nerve root compression. A CT scan of the lumbar spine on 22 April 2013 identified a disc extrusion at the L4/S level, compressing the right LS nerve root.
He proceeded to have a right L4/S discectomy and right LS neurolysis on 2 June 2017 with a temporary improvement in his condition. He now presents with constant severe widespread pain associated with radicular symptoms involving his right leg after surgery.”
The MA added:
“Consistency of presentation: Clinical examination of his upper extremities was difficult to accurately measure as he was complaining of severe pain and reluctant to move his right arm. There was better movement during distraction. I also noted surveillance images were taken in 2013 but Dr Dan was not convinced that images matched the appearance of Mr Mohamed. Dr Darwish commented that his condition has deteriorated since that time.”
The MA described his assessment as follows:
“Mr Mohamed probably developed adhesive capsulitis after the work injury. As his symptoms have been relatively stable, he was assessed for permanent whole person impairment. Unfortunately, the assessment was difficult due to inconsistencies in his presentation and pain behaviour. The limitations were disproportionate to the underlying pathology and inconsistent with his observed capabilities on video surveillance (many years ago). Although he had a previous injury to his right forearm in Somalia, his marked restriction in right elbow and shoulder movement was anatomically untenable.
Range of motion of his shoulders was therefore not an accurate and reliable method of determining his level of impairment as it cannot be reproduced by other medical examiners. I was therefore required to modify my assessment1. I reached the conclusion that his left shoulder movements were probably a more accurate reflection of the underlying impairment in a person with rotator cuff pathology complication by adhesive capsulitis. I have therefore modified his right shoulder impairment rating to be symmetrically reduced when compared to his left shoulder as follows:
Shoulder Movements     Active ROM Measured      Active ROM Measured
Right  Left
Flexion  100°  100°
Extension  40°  40°
Adduction  30°  30°
Abduction  90°  90°
Internal Rotation  40°  40°
External Rotation  30°  30°
According to the pie charts of upper extremity impairment, he has 15% left upper   extremity impairment or 9% whole person impairment. He would be expected to have a similar restriction in his right shoulder motion if he was cooperating and exerting maximal effort giving 15% RUEI or 9% WPI.
He has chronic mechanical low back pain with probable radicular symptoms involving his right leg. He was therefore awarded a DRE Lumbar Category Ill or 13% WPI inclusive of 3% for a marked limitation in his personal and domestic activities of daily living. In addition, he was awarded 3% WPI for radiculopathy persisting after surgery to give a combined whole person impairment of 16% WPI.
The total whole person impairment is 31%.”
The MA then turned to consider the other medical reports, noting as follows:
“Dr Guirgis, Orthopaedic Surgeon completed a report on 6 July 2018 and 3 July 2019. He awarded a DRE lumbar category Ill impairment or 12% whole person impairment inclusive of 2% for a mild limitation of activities of daily living and 3% for radiculopathy after surgery. He considered that a one tenth deduction was applicable, giving 14% whole person impairment. in addition, he awarded 2% for scaring which is easily locate with visible suture marks, contour defect and trophic changes.
With regards to his right shoulder, he awarded 11 % upper extremity impairment. In addition, he awarded 2% upper extremity impairment for right lateral epicondylitis. With regards to his left shoulder, he obtained 8% upper extremity impairment and in addition, he awarded 2% upper extremity impairment for left lateral epicondylitis. The combined whole person impairment was calculated to be 28%.
Dr Casikar, Neurosurgeon completed a report on 15 April 2016. He believed that there was radiculopathy present and agreed with Dr Darwish that surgery was reasonably necessary.
Dr Maxwell, Orthopaedic Surgeon completed a report on 6 January 2020. He noted that Mr Mohamed was moaning and groaning during movements of his cervical spine. He was able to spontaneously abduct his left arm to 145° during distraction but refused active movement. He had a slight restriction in right shoulder motion, reported that the entire right leg was numb. There was a give way test on muscle testing. The ankle jerks were brisk and symmetrical. At the time of my assessment, he refused to move either arms or his left elbow. He had an absent right ankle jerk reflex and global sensory loss. He was considered to still satisfy the diagnostic criteria for radiculopathy given that there was concordant evidence on radiological imaging of pathology at the same level.
Dr Maxwell took into consideration early imaging suggesting a fracture and considered it to be a congenital anomaly. Nevertheless, he applied a one-half deduction as he believed that the disc protrusion occurred spontaneously and was unrelated to his employment. He also considered that the shoulder injury was an aggravation of underlying degenerative pathology and applied a one tenth deduction. He obtained a total whole person impairment of 17%.”
The appellant submits as follows:
(a)    after undertaking his assessment of the worker's shoulders, the Assessor recorded on page 10 that ‘the assessment was difficult due to inconsistencies in his presentation and pain behaviour. The limitations were disproportionate to the underlying pathology and inconsistent with his observed capabilities on video surveillance ....’ The Assessor continued that the ‘marked restriction in right elbow and shoulder movement was anatomically untenable’,
(b)    critically, the Assessor concluded that: ‘Range of motion of his shoulders was therefore not an accurate and reliable method of determining his level of impairment as it cannot be reproduced by other medical examiners. I was therefore required to modify my assessment’;
(c)    however, in providing his assessment, the Assessor noted that the left shoulder movements were 'probably a more accurate reflection' of the underlying impairment and ‘I have therefore modified his right shoulder impairment rating to be symmetrically reduced when compared to his left shoulder ...’;
(d)    the Assessor then accepted the range of motion findings for the left shoulder and simply adopted that figure as representing the impairment present in the right shoulder;
(e)    paragraph 1.36 of the Guidelines provides as follows:
“AMA5 (p 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”;
(f)    paragraph 2.5 of the Guides, which applies to assessment of the upper extremities, provides: "If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1. 36 in the Guidelines";
(g)    the Assessor plainly identified inconsistencies on examination. He was correct therefore to note that his assessment must be modified. However, this does not explain or support his decision to accept the range of motion method for the left shoulder;
(h)    nowhere in the MAC did the Assessor conclude that the inconsistencies in examination were limited only to the right shoulder (nor could that plausibly be the case). Whilst he did specifically refer to the right shoulder movement being 'anatomically untenable', his comments with respect to inconsistency applied to each shoulder equally. He noted the presence of pain behaviour, and noted that range of motion "of his shoulders" was therefore not an accurate and reliable method of determining the level of impairment as it cannot be reproduced by other examiners. That inconsistency clearly therefore applied to the left shoulder, as well as the right;
(i)    pursuant to the Guides, once that conclusion was reached, the range of motion method should not have been adopted at all, and a different assessment method as provided under the AMA 5 Guides should have been used, and
(j)    the range of motion impairments were not an accurate reflection of the impairment present in either the left shoulder or the right shoulder.

As stated earlier, the respondent acknowledges that assessment was difficult due to inconsistencies, but asserts no errors were made by the MA.
The Panel in its preliminary assessment determined that the MA erred as stated above, and agreed with the thrust of the appellant’s submissions, particularly as regards the range of motion tests.
Medical Assessor Mastroianni re-examined the respondent on 20 April 2022 and reported to the Panel on 24 April as follows:
“The worker confirms the history recorded by the medical assessor on 16 December 2020…
Mr Mohamed is a man of stated age, tall of large frame and build. He is moderately overweight. He walks with a Canadian crutch and moans and groans in pain as he enters the examination room and sat on the chair. After some 10 minutes he said his back was sorer and got up for a few minutes. He is a very difficult historian, has a poor memory and is pain-focussed throughout the examination.
An interpreter assisted by telephone as the claimant speaks no English.
When asked to undress, he said he cannot do it and asked me to undress him.
I declined to dress and undress the claimant. He said he had asked his solicitor to have someone present to help him dress and undress. I was not made aware of the request, however, not to delay this case further and postpone the examination,
I allowed his brother who was vaccinated to dress and undress the claimant.
On formal examination, he is very reluctant to stand up without support of the crutch, but he was able to slowly move around without the crutch. He was not able to walk on his heels and toes nor squat.
Examination of the back reveals a healed surgical scar over the lower lumbar segment. He says the scar worries him as it is sore. The scar when palpated and it was not tender but there was generalised tenderness in the spine. The scar is 4cm long. It is a fine slightly raised keloid scar. There is colour contrast with the surrounding skin and on close inspection suture marks were noted.
Back movements were restricted in all planes. He gets and on and off the couch with difficulty, but the couch had to be lowered so he could get on it.
Examination of the legs reveals hypoaesthesia in the right leg distal to the knee and grade 4 power in the right toe compared to grade 5 in the left toe.
Straight leg raise supine was left 40°, right 10° with straight leg raise sitting normal in the left leg and 40° in the right leg with complaints of back pain. Lasegue test was equivocal.
When examining the shoulders, he was very protective of the shoulders, more so the right shoulder. Shoulder movements on examination were not inconsistent with the restrictions noted whilst his brother was dressing and undressing him.
Both shoulders were tender, right greater than left. Both elbows were tender. The left elbow has normal flexion, extension, pronation and supination. There is tenderness over the lateral epicondyle and stress test for epicondylitis was positive.
Repeated shoulder movements gave consistent readings in both shoulders…

Shoulder Movements	Active ROM Measured RIGHT	UEI%	Active ROM Measured LEFT	UEI%
Flexion	50°	9%	130°	3%
Extension	30°	1%	30°	1%
Abduction	40°	6%	90°	4%
Adduction	10°	1%	10°	1%
Internal Rotation	40°	3%	50°	2%
External Rotation	30°	1%	30°	1%
TOTAL	21%	12%

For the left elbow I assess 2% upper extremity impairment for epicondylitis (PIC guidelines, page 36, para 2.18.
The combined left upper extremity impairment, 12% for the shoulder and 2% for the elbow is 14%. This equates to 8% WPI.
21% right upper extremity impairment equates to 13% WPI.
Under the best fit principle of the TEMSKI classification, the scar best fits the descriptors for 1% WPI. (There is colour contrast with the surrounding skin. There is fine keloidal scarring. Suture marks are visible. There is a contour defect and negligible effect on any ADLs.)”

Medical Assessor Mastroianni added:
“The claimant presents very pain-focussed and entrenched sick role. Despite this I was able to get his co-operation in the formal examination after I explained the importance of him co-operating.
Although he has very restricted shoulder movements, more so on the right side,
I believe that he did show a range within his pain tolerance and repeated testing gave consistent readings. When examining the elbow and testing for epicondylitis and when testing for lower limbs radicular signs he was very co‑operative.
Overall, I am satisfied that the shoulder readings are genuine.
For the lumbar spine a one-tenth deduction is applicable applying provision of s323 [having regard to all of the evidence].
In my opinion, no deduction is applicable for the shoulder injuries based on the history.”
The appellant did not challenge the MA’s primary assessment of the lumbar spine.
Medical Assessor Mastroianni concluded that a one-tenth deduction was appropriate having regard to all of the evidence.
The Panel accepts the findings, reasons and assessment of Medical Assessor Mastroianni.
The final assessments are set out in the Table accompanying this decision.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 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 Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Mohammed Assem 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)
1.Lumbar spine	3/5/13	Chapter 4 Page 24-29	Chapter 15 Page 384 Table 15-3	16%	1/10th	(14.4%) 14%
2. Right Upper Extremity	3/5/13	Chapter 2 Pages 10-12	Chapter 16 Pages 433 to 521	13%	0%	13%
3. Left Upper Extremity	3/5/13	Chapter 2 Pages 10-12	Chapter 16 Pages 433 to 521	8%	0%	8%
4.Scariing	3/5/13	Chapter 14 Pages 73-74	1%	0%	1%
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					32%

Ms Deborah Moore
Member
Dr David Crocker

Medical Assessor

Dr Tommasino Mastroianni

Medical Assessor

11 May 2022

[2022] NSWPICMP 225

12 May 2022