Underwood v Shellwood Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Underwood v Shellwood Pty Ltd [2021] NSWPICMP 25
APPELLANT:	Jaysen Underwood
RESPONDENT:	Shellwood Pty Ltd
APPEAL PANEL:	Member Jane Peacock Dr Brian Noll Dr Margaret Gibson
DATE OF DECISION:	18 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Left shoulder injury, consequential condition in cervical spine and scarring; Medical Assessor (MA) assessed DRE II (5% WPI) for the cervical spine but then purported to make a 100% deduction under section 323 on the basis of his findings on causation; Held- the MA was in error because causation is outside his province; the MA did not err in respect of his assessment of 0% WPI for activities of daily living or 0% WPI for scarring as these findings were open to him; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 November 2020 Jason Underwood (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 16 October 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, 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 Workers compensation medical dispute assessment guidelines.

As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination.

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.

Medical Assessment Certificate

The parts of the medical certificate given by the MA 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.

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 MA was referred the assessment of the following matters:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·    Date of injury:   10/11/04
·    Body parts/systems referred:                    Left upper extremity (shoulder)
Scarring
Cervical spine (consequential)
·     Method of assessment:   Whole Person Impairment”
The MA issued a MAC certifying his assessment as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Left upper extremity	10/11/04	Chap 2 P 10	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	13%	0	13%
Scarring		P 74 T 14.01	0%	0	0%
Cervical spine		Chap 4 P 24	P 392 T 15-05	0%	0	0%
Total % WPI (the Combined Table values of all sub-totals)					13%

The worker appealed. There was no complaint on appeal by either party about the assessment of the left upper extremity.

In summary, the appellant submitted on appeal that the MA made demonstrable errors and made an assessment on the basis of incorrect criteria as follows:
·        The MA has erred by making a determination with respect to the causation of the consequential injury to the cervical spine.
·        There is no issue with regard to assessment of the cervical spine (5% whole person impairment (WPI) which is consistent with the findings of Dr Bodel and Dr Breit (who both concluded that the appellant had sustained a consequential injury to his cervical spine). The MA erred when stating that there were no significant clinical features but reported ‘minor restriction of extension’& minimal alteration of sensation suggesting minor involvement of the C7 dermatome’.
·        The MA has misinterpreted the other medical opinions and their findings in evidence with respect to causation of the appellant workers consequential cervical spine injury and has not adequately explained with reasons why his opinion differs from theirs.
·        The MA erred with regard to assessment of impairment relating to Activities of Daily Living (ADLs). The appellant indicates that an allocation of 1% WPI would be inappropriate as the appellant is no longer able to breed rabbits – a recreational activity. The appellant submits that 2% WPI would be appropriate given that he has difficulty driving, he has cut the lawn only about once in the last 35 years, and does not do any of the housework despite being able to do these activities before the subject accident.
·        The MA did not adequately report on the scarring. Dr Bodel assessed the scarring as 1% WPI. The MA has failed to consider and mention matters which may have resulted in him coming to a different conclusion with respect to his assessment of the skin system (scarring).
In summary, Shellwood Pty Ltd (the respondent) submitted as follows:
·        The MA did not make a determination with respect to causation but was merely stating the facts of the evidence before him and forming a clinical opinion. Given the fact that the MA made an assessment under DRE Category II it cannot be submitted that a determination with regard to causation was made (notwithstanding the subsequent 100% deduction).

·        The assessment of 0% WPI for the cervical spine was reasonably open to the MA. The MA clearly stated the reasons for a deduction noting substantial degenerative changes which are not at all related to the work injury.
·        The MA indicated that the relevant documents were studied in detail which precludes the submission that the MA had misinterpreted the medical opinions. Paragraph 10 (c) details the differences of opinion.
·        With regard to the MAC Table indicating of finding of 0% WPI for the cervical spine: The error is limited to an administrative error in the WPI Table on page 8 of the MAC where column 3 should indicate that WPI assessment under DRE category II before the deduction is made. This is an obvious error which could be cured in accordance with section 325 (3) of the 1998 Act.
·        The MA stated the following with regard to ADLs ‘There does not appear to be any restrictions in his activities of daily living. Therefore there is no additional component’… My assessment was less than his, since there was no evidence of Mr Underwood being unable to conduct his activities of daily living when I saw him…He is now currently so active and can carry out all his activities of daily living at home and also can carry out the full duties of his occupation as a water truck driver for the local council’.
·        With regard to scarring: ‘scarring of the left shoulder is minimal and has healed well. This is an uncomplicated scar for a standard surgical procedure and it carries 0% WPI’… ‘Dr Bodel gives 1% for scarring I am not persuaded that this is appropriate, since the scarring is healed well, is uncomplicated, does not cause any problems and is a standard surgical approach’. The MA’s description of his scarring assessment is sufficient to establish that he has taken into account issues such as dimensions, shape, colour, depression, elevation, soft, hard, sensitive or visibility. The MA is an experienced assessor and therefore his assessment of scarring takes into account the relevant matters.
The role of the MA is to conduct an independent assessment on the day of examination. The MA is required to take a history, conduct a physical examination, review the special investigations, make a diagnosis and have due regard to other evidence and other medical opinion that is before the MA. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment and make such assessment in accordance with the criteria in the Guides. When considering the assessment of a deductible proportion under s 323 the MA can only make a deduction if he considers in the exercise of his clinical judgment that the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. Where the extent of the deduction would be too difficult or too costly to determine, the deduction will be one-tenth.
It is not the MA’s role to make determinations in respect of causation. Here, the MA made the following assessment in respect of the cervical spine:
“Cervical spine. This is addressed in AMA 5 Page 392, Table 15-05. Although there are some irritable features radiating down the left arm, these are insufficient to generate a diagnosis of radiculopathy. The condition is therefore addressed in Cervical Spine Category II. This carries a whole person impairment ranging between 5% and 8%, depending on his activities of daily living. There do not appear to be any restrictions in his activities of daily living. Therefore, there is no additional component.”
He later purported to make a 100% deduction under s 323 stating as follows:
“There is no deduction for the upper extremity impairment. I would however draw attention to the cervical spine. There are minimal (absolutely minimal) comments throughout the quite extensive file concerning the cervical spine. Nothing about the cervical spine has ever been described by his General Practitioner around the time of the original event of 2004 and up to 2010. It is only when the left shoulder condition deteriorated around this time that Dr Mathew Howard investigated the cervical spine and identified the substantial degenerative changes in the lower cervical spine and particularly, at the C5/6 foramen on the left where there was degenerative stenosis. Despite this, there is no history of any further specific clinical management of the cervical spine.

At this assessment, there were no significant clinical features associated with the cervical spine. Even if there were, I am not persuaded that these have any relationship (at all) to the condition of the left upper extremity. This is particularly the case when he is now currently so active and can carry out all his activities of daily living at home and also can carry out the full duties of his occupation as a water truck driver for the local council.”
The panel is of the view that the MA has clearly attempted to make a determination on causation which was outside his province. He has made a finding with regard to causation regarding the cervical spine notwithstanding on examination there were findings consistent with DRE II which he tried to negate by making a 100% deduction. Given that the cervical spine was referred for assessment and he found clinical features which included some asymmetry of movement and features suggestive of a non-verifiable radicular complaint – the 5% impairment that he assessed in relation to the cervical spine will be restored by the Panel. There is no evidence of any pre-existing condition, abnormality or injury in respect of the cervical spine for which a deduction could be made under s 323. The panel notes that both other independent medical experts, Dr Bodel and Dr Breit, concluded that the cervical spine fell into DRE II and did not make any deduction under s 323.
Turning then to the assessment by the MA of 0% for ADLs. The Panel considers It was open to the MA to conclude that there should be 0% allocation for ADLs. The fact that he no longer breeds rabbits is not necessarily attributable to any symptoms in relation to his neck. Difficulty dressing seems to relate more specifically to the disorder of his shoulder according to Dr Bodel’s report.
Turning finally to the issue of scarring. The MA’s findings on the day of examination were as follows:
“Scarring. The scarring in the left shoulder is minimal and has healed well. This is an uncomplicated scar for a standard surgical procedure, and it carries 0% WPI.”
The assessment of 0% WPI for scarring was correctly assessed in accordance with the criteria in the Guides.
Accordingly the MAC will be revoked by the Panel and the Panel will issue a new certificate for the assessment based on 13% for the left upper extremity, and 5% for the cervical spine which gives a combined value of 17% WPI as a result of injury on 10 November 2004.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 October 2020 should be revoked. A new Medical Assessment 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 Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr 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 SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Left upper extremity	10/11/04	Chap 2 P 10	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	13%	0	13%
Scarring		P 74 T 14.01	0%	0	0%
Cervical spine		Chap 4 P 24	P 392 T 15-05	5%	0	5%
Total % WPI (the Combined Table values of all sub-totals)					17%

Jane Peacock
MEMBER

Dr Brian Noll
Medical Assessor

Dr Margaret Gibson
Medical Assessor

18 MARCH 2021

[2021] NSWPICMP 25

18 March 2021