Ultimate Site Services v Cotterill
[2022] NSWPICMP 301
•25 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ultimate Site Services v Cotterill [2022] NSWPICMP 301 |
| APPELLANT: | Ultimate Site Services |
| RESPONDENT: | Scott Allan Cotterill |
| APPEAL PANEL: | Member William Dalley |
| Medical Assessor James Bodel | |
DATE OF DECISION: | Medical Assessor Margaret Gibson 25 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against assessment of impairment in respect of the left upper extremity based on failure to apply a deduction in accordance with chapter 2.20 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) in respect of reportedly abnormal contralateral limb; the range of motion measurements recorded in the Medical Assessment Certificate (MAC) patently supported the appellant insurer’s submission; on review the measurements recorded by the Medical Assessor; particularly with respect to the flexion in the uninjured right shoulder suggested that there was a typographical error in recording those measurements (80° flexion recorded when normal flexion is 180°); the Panel having found demonstrable error required reassessment to ascertain the correct range of motion in the right upper extremity; Held — demonstrable error established; upon re-examination range of motion in the contralateral shoulder was found to be normal and no deduction pursuant to chapter 2.20 of the Guidelines was warranted; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 May 2022 Ultimate Site Services lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 April 2022.
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 Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The respondent to the appeal, Scott Cotterill, suffered an injury to his left arm in the course of his employment by the appellant, Ultimate Site Services, on 2 October 2018. Mr Cotterill was operating a street sweeper which developed a fault in one of the sweeper arms. The injury occurred when the faulty boom retracted, trapping his left arm between the boom and the side of the sweeper. Mr Cotterill was able to finish his shift although suffering symptoms in the left arm.
The following day Mr Cotterill noted swelling in the elbow as well as other symptoms in the left arm. He consulted a general practitioner and was referred for radiological investigations. Mr Cotterill attempted to return to work on light duties but continued to suffer painful symptoms in the left arm. His treating doctor then arranged an ultrasound which disclosed nerve damage. Mr Cotterill was referred to an orthopaedic surgeon, Dr Gupta, who ultimately performed a subcutaneous ulnar nerve transposition and arthroscopic lateral epicondylitis release in June 2019.
Mr Cotterill continued to suffer symptoms. On 4 September 2020 Mr Cotterill was examined by an occupational physician, Dr Christopher Oates, at the request of Mr Cotterill’s solicitors for the purposes of a claim pursuant to s 66 of the Workers Compensation Act 1987. Dr Oates assessed Mr Cotterill as having 24% whole person impairment (WPI) as a result of injury to the left upper extremity.
Mr Cotterill’s solicitors made a claim for lump-sum compensation in accordance with Dr Oates' assessment. Mr Cotterill was then examined by an independent medical expert, Associate Professor Paul Miniter in March 2021 at the request of the insurer. Associate Professor Miniter was of the opinion that Mr Cotterill had not yet reached maximum medical improvement, reporting that it was premature to assess incapacity. On that basis the claim was disputed by the insurer.
Mr Cotterill’s solicitors commenced proceedings in the Personal Injury Commission and the dispute was referred to a Medical Assessor to determine whether the degree of permanent impairment in the left upper extremity was fully ascertainable and if so the degree of permanent impairment as a result of the subject injury.
The Medical Assessor assessed Mr Cotterill as suffering 11% WPI as a result of the subject injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination. Demonstrable error was established and it appeared to the Panel that the range of motion recorded by the Medical Assessor with respect to flexion of the right shoulder was likely to be unreliable, motion being recorded as more severely restricted in that shoulder than in the injured left shoulder.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr James Bodel of the Appeal Panel conducted an examination of the worker on 12 July 2022 and reported to the Appeal Panel. He reported having examined Mr Cotterill with respect to the issue of whether a deduction was to be made from the Medical Assessor’s assessment of the left upper extremity as having 19% upper extremity impairment by way of range of motion pursuant to Chapter 2.20 of the Guidelines.
Dr Bodel reported that the active range of motion measured in respect of the right upper extremity were as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Flexion
180°
Extension
50°
Adduction
50°
Abduction
180°
Internal Rotation
90°
External Rotation
90°
Elbow Movements
Active ROM Measured
RIGHT
Flexion
140°
Extension
0°
Pronation
80°
Supination
80°
Wrist
Movements
Active ROM Measured
RIGHT
Flexion
60°
Extension
60°
Radial Deviation
20°
Ulnar Deviation
30°
Dr Bodel noted that there were no additional investigations since the original MAC. He stated that he had assessed range of motion in accordance with the Guidelines with the use of a goniometer. He reported:
“I observe in the Medical Assessment Certificate on page 17 of our file that Dr Kuru recorded 80° flexion in the ‘right shoulder.’ I strongly suspect that this is a typographical error and should have been 180°. If that is the case, then he has recorded near normal movement in the right shoulder and today, I found normal movement in the right shoulder, although he does have a complaint of a recent onset of some intermittent symptoms in the right shoulder, which have not yet been investigated or treated.
I am able to clarify, therefore, that there is no rateable restriction of right shoulder, right elbow or right wrist and hand movement and that the clinical findings on the left-hand side are related to his injury.
There is therefore, no basis for a deduction of any restriction of right upper limb movement from the clinical findings on the injured left arm in this circumstance.”
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor failed to assess Mr Cotterill in accordance with the Guidelines because he had not complied with Chapter 2.20.
In reply, the respondent submits that there was “no evidence of any pre-existing condition which would justify the comparison with the corresponding right upper extremity that would assist in any way".
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[1] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[1] [2006] NSWCA 284.
The Medical Assessor assessed impairment in the left upper extremity by means of assessment of range of motion in accordance with Chapter 2.5 of the Guidelines. The Medical Assessor measured the range of motion in the shoulder, elbow and wrist of both the left and right upper extremities. He recorded his findings:
“Shoulder
MOVEMENT
LEFT
RIGHT
Flexion
90°
80°
Extension
10°
40°
Abduction
90°
180°
Adduction
30°
40°
Internal rotation
80°
80°
External rotation
80°
80°
Elbow
MOVEMENT
LEFT
RIGHT
Flexion
110°
120°
Extension
-5°
0°
Supination
70°
80°
Pronation
80°
80°
Wrist ranges of motion were symmetrical.”
The Medical Assessor explained his calculation of impairment:
“According to AMA 5 page 476, Table 16.40, page 477, 16.43 and page 479, 16.46 I assess a 13% upper extremity impairment for restricted range of motion in the left shoulder. It is worthwhile to note that this accounts for a majority of Mr Cotterill’s impairment and his shoulder has not been clinically evaluated subsequent to his injuries.
According to AMA 5 page 472, 16.34 on page 474, 16.37, 3% upper extremity impairment is assessed for restricted range of motion at the elbow.
According to AMA 5, page 482, Table 16.10, a grade III sensory deficit is assessed (60%) on the basis of symptomatic numbness of the ulnar digits of the left-hand following ulnar transposition with altered superficial and two point sensation. According to AMA 5 for the nerve above the mid-forearm I award 7% upper extremity impairment on the basis of sensory deficit or pain. 60% of 7 UEI gives 4% UEI for the sensory changes.
13, 4 and 5 combined gives 19% upper extremity impairment. According to AMA 5 page 439, Table 16.43 this converts to 11% whole person impairment.”
The appellant submitted:
“The Medical Assessor has assessed 13% upper extremity impairment in relation to the left shoulder and 3% upper extremity impairment in relation to the left elbow, however he has not deducted 8% upper extremity impairment in respect of the right shoulder and 2% upper extremity impairment in respect of the right elbow.
The appellant submits that these failures represent a failure to comply with Chapter 2.20 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.
The Appellant submits that if these deductions had been made, there would be a net assessment (i.e. after deduction of an injured contralateral limb) of 5% upper extremity impairment for the left shoulder and 3% upper extremity impairment for the left elbow which, when combined with 4% upper extremity impairment for sensory loss, equates to 12% upper extremity impairment. This is translated to 7% Whole Person Impairment”.
Chapter 2.20 of the Guidelines provides:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint (s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment values corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA 5 Section 16.4c, p.543[2])”.
[2] Sic - paragraph 16.4c is in fact found at page 452 of AMA 5.
The respondent submitted that “the appellant simply makes reference to an asserted failure to comply with Chapter 2.20 of the Medical of Guidelines [sic] without providing any rationale as to the basis upon which a deduction should be made.”
In Merza v Registrar of the Workers Compensation Commission[3], Hoeben J held that a demonstrable error “is any error readily apparent from an examination of the MAC and the document referring the matter to the AMS[4] for assessment”.
[3] (2006) NSWSC 939 at [39].
[4] Now “Medical Assessor”.
Applying that test, the Panel is satisfied that demonstrable error has been made out. The range of motion recorded by the Medical Assessor in respect of the right shoulder, particularly with regard to flexion of the shoulder, clearly show a restricted range of motion which the Medical Assessor would be expected to take into account in applying Chapter 2.20 of the Guidelines.
It is apparent from the MAC that the Medical Assessor has not made the deduction which is warranted by his findings in respect of the contralateral right shoulder and elbow and has fallen into error in failing to make that deduction. That ground of appeal has been established.
The Panel notes that the Medical Assessor reported the range of flexion in the right shoulder as 80° whereas a normal shoulder has a range of flexion of 180°[5]. That measurement, if accepted, indicates that Mr Cotterill had a more restricted range of flexion in the uninjured right shoulder than in the left, which was the subject of the assessment.
[5] see Figure 16-40 of AMA 5, page 476.
The measurement of the right shoulder flexion by the Medical Assessor was at odds with the previous assessment by Dr Oates and it appeared to the Panel that the assessed range of flexion of 80° may well be a typographical error rather than an accurate measurement. For this reason, the Panel accepted that it could not rely on the ranges appearing in the MAC when reassessing impairment and required Mr Cotterill to undergo re-examination.
Dr Bodel, the Medical Assessor member of the Panel who examined Mr Cotterill, was able to examine him in person and, after repeated testing, was able to obtain what he considered to be reliable measurements of the relevant ranges of motion. Those measurements appear in his report to the Panel set out above.
Those measurements show a normal range of motion in the right upper extremity and provide no basis for any deduction.
As noted by Dr Bodel, it does appear that, with the benefit of re-examination, the figure recorded by the Medical Assessor was in fact a typographical error with “80°” being recorded instead of “180°”, that latter figure representing a normal range of motion. However, that was not apparent on the face of the MAC and error was established.
Upon re-examination a normal range of motion in the contralateral right upper extremity was found by Dr Bodel and the Panel accepts that finding is consistent with the evidence of treating doctors who would undoubtedly have commented on such a substantial restriction in the range of flexion in the right shoulder if that restriction had been present. The Panel is accordingly satisfied that no deduction from the assessed level of impairment in the left upper extremity is to be made pursuant to Chapter 2.20 of the Guidelines.
The conclusion is that, although the ground of appeal has been made out and demonstrable error appears on the face of the MAC, upon re-examination it is apparent that Mr Cotterill was correctly assessed at the time of his examination by the Medical Assessor as suffering 11% WPI as a result of the subject injury to the left upper extremity.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 April 2022 should be confirmed.
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