Vecchie v Ricegrowers Ltd
[2025] NSWPICMP 92
•17 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Vecchie v Ricegrowers Ltd [2025] NSWPICMP 92 |
| APPELLANT: | Michael Vecchie |
| RESPONDENT: | Ricegrowers Limited |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Gregory McGroder |
| MEDICAL ASSESSOR: | Todd Gothelf |
| DATE OF DECISION: | 17 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) should have concluded appellant had radiculopathy on the basis that appellant had experienced radiculopathy in the past; whether MA’s findings from his examination of the appellant’s movement of her shoulders were correct; whether MA’s ratings of the appellant’s upper extremity impairment based on his recorded findings of the appellant’s restricted movement of her shoulders were correct; whether the MA should have assessed the appellant as having an upper extremity impairment due to a peripheral nerve disorder; Held – MA was correct not to find the appellant had radiculopathy because he did not at the time of examination find any signs consistent with radiculopathy; MA’s examination of the appellant’s shoulders was thorough and no reason to conclude his findings regarding appellant’s range of movement of her shoulders were wrong; MA was correct not to assess any impairment of the appellant’s upper extremities due to peripheral nerve disorder because his findings did not reveal any impairment from a peripheral nerve disorder; MA incorrectly rated the appellant’s upper extremity impairment based on the findings he recorded regarding the appellant’s range of movement of her shoulders; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 October 2024 Michael Vecchie, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
9 September 2024.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.
Rule 128 of the Personal Injury Commission Rules 2021 (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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Rice Growers Limited, the respondent, employed the appellant as a leading hand and machine operator between September 2012 until 7 December 2022. On 1 November 2017 the appellant was transferring a 215kg roll of compressed plastic film from a trolley to a pallet when he suffered an injury that affected all parts of his spine and his right and left upper extremity. He claimed compensation from the respondent’s insurer under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from his injury that he said amounted to 21% whole person impairment (WPI). He relied upon reports of orthopaedic surgeon Dr Peter Giblin, who assessed that was the degree of his permanent impairment from his injury. Dr Giblin’s assessment comprised 5% WPI relating to the appellant cervical spine, 5% WPI relating to his thoracic spine, 5% WPI relating to his lumbar spine, 2% WPI relating to his activities of daily living and 3% for each of the right and left upper extremities. Dr Giblin’s assessment of the degree of the appellant’s permanent impairment relating to his upper extremities was based on the restriction of movement the appellant had of his shoulders.
By letter dated 19 December 2023 the respondent’s solicitors advised the appellant’s solicitor that the respondent offered to settle the appellant’s claim by paying him compensation for 13% WPI from his injury. The respondent relied on a report of orthopaedic surgeon Dr Frank Machart dated 27 November 2023, wherein Dr Machart advised he had assessed the degree of the appellant’s permanent impairment from his injury was 13% WPI, comprising 5% WPI relating to the appellant’s cervical spine, 6% WPI relating to the appellant’s lumbar spine, and 2% WPI relating to the appellant’s right upper extremity.
The appellant subsequently instituted proceedings in the Personal Injury Commission (Commission) by filing Application to Resolve a Dispute dated 26 March 2024, by which he sought the Commission determine his claim against the respondent for compensation for permanent impairment from his injury. The Commission referred the matter to the Medical Assessor who examined the appellant on 30 August 2024 in order to assess the various medical disputes between the parties relating to the appellant’s claim for compensation.
As mentioned, the Medical Assessor issued the MAC on 9 September 2024. In that he certified he assessed the degree of the appellant’s permanent impairment was 15% WPI. That comprised 5% WPI relating to the appellant’s lumbar spine, 5% WPI relating to the appellant’s right upper extremity, 5% WPI relating to the appellant’s left upper extremity and 0% WPI relating to the appellant’s cervical spine and thoracic spine. The Medical Assessor’s assessment of the appellant’s overall impairment relating to his lumbar spine was 6% WPI but the Medical Assessor made a deduction of 10% from that under s 323(1) for a pre-existing that he described as “non specific back pain”.
The Medical Assessor recorded in the MAC that the appellant’s description of his current symptoms included global spinal pain that start in his lumbar spine and radiated to his thoracic and cervical spine, pain around his right shoulder, intermittent numbness in the ulnar digits of his hands, numbness in the median fingers of his hand when he drives which the Medical Assessor noted is consistent with carpal tunnel syndrome, and numbness over the dorsum of his hand if he rubs his right forearms which the Medical Assessor noted is consistent with Tinel’s signs over the branch of the superficial radial nerve. The Medical Assessor recorded that the appellant is unable to manage the physical aspects on a citrus farm the appellant owns and needs to contract out the physical work.
The Medical Assessor viewed images of several investigations the appellant had undergone and made brief comments in the MAC about those. The Medical Assessor also conducted a physical examination of the appellant and recorded the following findings from that examination:
“On examination he was a solid man in no obvious distress. Romberg’s test was negative. Heel-toe stance was normal. Trendelberg’s test was normal. Upper limbs reflexes were symmetrical with a negative Hoffman test. Peripheral power was intact. Phalen’s and Tinel’s tests were negative for carpal tunnel and ulnar nerve neuritis at the elbow.
Lower limb reflexes similarly were symmetrical with downgoing Babinskis. Peripheral power was intact. Straight leg raise was to 90° in the sitting position without tension signs.
Examination of range of motion in the shoulders was recorded as follows:
Movement
Right
Left
Flexion
140°
140°
Extension
30°
30°
Abduction
140°
140°
Adduction
20°
20°
Internal rotation
80°
80°
External rotation
80°
80°
Examination of range of motion in the spine was symmetrical flexion, extension and rotation of the cervical spine of normal range with no evidence of dysmetria. There was no evidence of restricted movement or dysmetria of the thoracic spine.
Lumbar spine flexion was to just beyond the knees. There was dysmetria on extension. Lateral flexion was to the mid-thigh.”
The Medical Assessor stated that he assessed the permanent impairment of the appellant’s lumbar spine by reference to Table 15-3 of AMA5. He correlated his findings from his examination of the appellant with the criteria for DRE category II, which allows a baseline rating of 5% WPI. He added a further 1% WPI to that pursuant to paragraph 4.34 of the Guidelines for the effects the appellant’s injury has on the appellant’s activities of daily living.
The Medical Assessor recorded that he assessed the appellant’s impairment to his cervical spine by reference to Table 15-5 of AMA5, correlating his findings with the criteria for DRE cervical category I. He said that was on the basis that there were “no significant clinical findings, no muscle guarding, no documented neurological impairment or loss of motion segment integrity”.
The Medical Assessor advised he assessed the appellant’s impairment relating to his thoracic spine by reference to Table 15-4 of AMA5, correlating the appellant’s impairment to DRE category I.
The MAC reveals that the Medical Assessor assessed the appellant’s impairment of his right and left upper extremities by reference to the various figures in AMA5 relating to the restricted range of movement of a shoulder. As earlier said, he assessed that appellant had 5% WPI relating to each upper extremity.
As also said, the Medical Assessor made a deduction under s 323(1) when assessing the degree of the appellant’s permanent impairment relating to his lumbar spine due to a pre-existing condition of non-specific back pain that he considered contributed a proportion of the appellant’s permanent impairment from his injury.
The Medical Assessor also made a deduction under s 323(1) of 10% to the 5% WPI he assessed the appellant had relating to his right upper extremity on account of the appellant having a pre-existing condition, which the Medical Assessor identified as “impingement right shoulder” and which the Medical Assessor considered contributed a proportion of the appellant’s permanent impairment from his injury. The Medical Assessor revealed, in Table 2 appended to the MAC, that making that deduction made no difference to the outcome, which the Appeal Panel observes is a consequence of paragraph 1.26 of the Guidelines which requires that values of 0.5 and above be rounded up to the next whole number.
The Medical Assessor noted that Dr Giblin had assessed the appellant’s impairment relating to his lumbar spine as DRE cervical category II and remarked that his findings at his assessment were not consistent with Dr Giblin’s assessment. The Medical Assessor also noted that he found the appellant had greater restriction of movement of his shoulder than
Dr Giblin had found and consequently he assessed a higher impairment than Dr Giblin. The Medical Assessor also noted that Dr Giblin had added 1% WPI when assessing the appellant’s impairment of his lumbar spine for the restrictions on the appellant’s activities of daily living and the Medical Assessor remarked that he agreed with that. The Medical Assessor also noted that Dr Giblin had assessed the appellant’s impairment relating to his thoracic spine as correlating with DRE category II about which the Medical Assessor remarked that he disagreed with that because he did not find clinical signs to support such an assessment.The Medical Assessor noted the assessment Dr Machart had made of the appellant’s permanent impairment. The Medical Assessor said that he agreed with Dr Machart’s assessment relating to the appellant’s impairment of his lumbar spine including the 1% WPI Dr Machart had added for the restrictions for the appellant’s activities of daily living. The Medical Assessor said that he disagreed with Dr Machart’s assessment relating to the impairment of the appellant’s cervical spine, which Dr Machart assessed by reference to the criteria for DRE cervical category II. The Medical Assessor also noted that he found the appellant had greater restriction of the movement of his right shoulder than what Dr Machart had found. The Medical Assessor noted that Dr Machart did not assess the appellant to have impairment relating to his left shoulder.
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient to deal with the appeal.
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 submitted, relying on David v Allianz Australia Ltd[i], the Medical Assessor erred when assessing the degree of his permanent impairment relating to his cervical spine because he did not consider whether he had previously experienced radiculopathy. The appellant submitted that the evidence established he had, and the Medical Assessor ignored evidence regarding that.
The appellant submitted that the Medical Assessor failed to consider adequately the effect his injury had on his activities of daily living. The appellant submitted that the Medical Assessor did not correctly apply paragraphs 4.34 and 4.35 of the Guidelines when assessing the degree of his permanent impairment relating to his lumbar spine. The appellant submitted that the Medical Assessor failed to provide reasons why he only assessed 1% WPI relating to the effect his injuries had on his activities of daily living, rather than 2% WPI or 3% WPI.
The appellant submitted the Medical Assessor’s ratings of the impairment of his right and left upper extremity, based on the restriction of movement the Medical Assessor recorded in the MAC, was wrongly computed. The appellant submitted that the Medical Assessor ought to have assessed he had 4% WPI with respect to each upper extremity. The appellant submitted that the Medical Assessor either recorded the wrong values, or incorrectly utilised the combined values chart in AMA5, or incorrectly assessed his impairment.
The appellant submitted that the Medical Assessor failed to consider whether, based on the pain and numbness he experienced in his upper extremities, a rating for impairment could have been made under s 16.5 of AMA5, which the Panel notes relates to the impairment of upper extremities due to peripheral nerve disorders.
In reply, the respondent submitted that the Medical Assessor did not record the appellant experienced signs or symptoms of radiculopathy during his examination of the appellant and that any earlier symptoms of radiculopathy the appellant suffered that independent medical examiners had recorded occurred more than nine months prior to the Medical Assessor’s examination. The respondent highlighted the Medical Assessor noted that his findings were not consistent with the findings Dr Giblin made or the findings Dr Machart made during their respective examinations of the appellant’s cervical spine.
The respondent submitted that the Medical Assessor provided a rationale for assessing the appellant’s permanent impairment relating to his lumbar spine correlated with the criteria for DRE category I.
The respondent submitted that the Medical Assessor “reasonably concluded the impact on activities of daily living with respect to the lumbar spine was equivalent to 1% WPI”. The respondent observed that that accorded with the assessment that both Dr Giblin and
Dr Machart had made. The respondent submitted that the Medical Assessor did not reference any difficulty the appellant had with personal care or household tasks. The respondent submitted that the Medical Assessor explained the rationale for his assessment of the appellant’s impairment with respect to activities of daily living.The respondent agreed with the appellant that the Medical Assessor did not calculate correctly the appellant’s permanent impairment with respect to his upper extremities. The respondent submitted that the “values recorded have simply been miscalculated”.
With respect to the appellant’s submissions that the Medical Assessor does did not consider s 6.5 of AMA5, the respondent contended that the appellant failed to particularise any symptoms that he suffer that would permit an assessment under that section. The respondent noted that neither Dr Giblin nor Dr Machart assessed the appellant had any impairment with respect to a peripheral nerve injury.
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.
The Appeal Panel disagrees with the appellant’s submission that the Medical Assessor did not consider whether he had previously experienced radiculopathy. The Appeal Panel also considers that the authority to which the appellant referred, in support of this submission, namely David, is not germane to an assessment of a medical dispute conducted under the Guidelines.
David involved a review that a Medical Appeal Panel, constituted in accordance with the provisions of the Motor Accident Injuries Act 2017, conducted under s 7.26 of that Act of a medical assessment that a Medical Assessor had made under s 7.23 of that Act. That assessment related to whether the injury a claimant suffered in a motor vehicle accident was a “minor injury” in accordance with the definition of that term under s 1.6 of that Act, in the form then enacted. Part 1 of cl 4 of the Motor Accident Injuries Regulations 2017 extended the definition of minor injury to include an injury to a spinal nerve root that manifested in neurological signs other than radiculopathy. The Medical Appeal Panel in that matter interpreted cl 4 such that a claimant’s injury would not be a minor injury if the claimant had suffered radiculopathy at some point prior Medical Assessor’s examination or the Appeal Panel’s examination. That would enable the claimant to recover potentially damages and not be limited to statutory benefits. The short point is that the case related to the interpretation of legislation, and guidelines issued under that legislation, that have no relevance to an assessment conducted in accordance with the 1998 Act and the Guidelines. Paragraph 1.6 of the Guidelines instructs a Medical Assessor to conduct his or her clinical assessment of a worker as a worker presents on the day the worker presents to the Medical Assessor. Further, a Medical Assessor is entitled to give pre-eminence to his or her clinical observation of a worker.[ii]
Here, the Appeal Panel considers the Medical Assessor has conducted his clinical examination of the appellant guided by the clinical history he obtained, as detailed in the MAC, and having had regard to the respective reports of Dr Giblin and Dr Machart. His examination was thorough in that he examined the appellant with respect to all relevant matters to determine into which DRE category the appellant was to be classified. He noted the findings from his clinical examination of the appellant did not accord with those of
Dr Giblin or Dr Machart from their respective examinations. He was entitled to give pre-eminence to his observations. Based on them, he was correct to rate the appellant’s impairment relating to his cervical spine as falling within DRE category I. It did not matter that the appellant had previously experienced radicular symptoms from his injury, given that at the time he presented for assessment by the Medical Assessor those symptoms were not present.
The Appeal Panel also does not accept the appellant’s submission to the effect that the Medical Assessor wrongly recorded in the MAC the appellant’s range of movement of his shoulders. There is nothing within the MAC to indicate that. Indeed, given that the Medical Assessor compared his findings of the appellant’s range of movement of his shoulders with the findings Dr Giblin made with respect to the appellant’s bilateral shoulder movements and with the findings Dr Machart made with respect to the appellant’s right shoulder, and noted that he found the appellant had more restricted range of movement, the Appeal Panel infers that the Medical Assessor checked the figures he inserted in the MAC.
The Appeal Panel agrees with the submissions of both parties that based on the findings of the Medical Assessor relating to the appellant’s shoulder movements, as recorded in the MAC, the Medical Assessor wrongly rated the appellant’s impairment of his upper extremities. The correct rating, as both parties submitted, should be 7% upper extremity impairment for each shoulder, which converts to 4% WPI.
The Appeal Panel also agrees with the appellant’s submission that the Medical Assessor did not provide adequate reasons for the additional rating he made under paragraph 4.33 of the Guidelines for the effect the appellant’s injury to his lumbar spine has had on his activities of daily living. The Medical Assessor’s reasons consist only of the appellant being unable to conduct physical work on his citrus farm. The Medical Assessor made no reference to the appellant’s statement dated 18 March 2024, wherein the appellant reveals that he is now more limited in his pastimes and recreation and that he has difficulty doing some housework and struggles to put on his pants and shoes. The Appeal Panel considers that the appellant’s injury has had a significant effect on his ability to undertake recreation and sport and to engage in yard and garden activity but more limited effect on his home care and very limited effect on his self-care. There is no evidence, including the history the Medical Assessor obtained and the Medical Assessor’s findings from his examination, that contradicts what the appellant has said in his statement. In those circumstances, the Appeal Panel considers that the Medical Assessor erred by not adding an additional 2% WPI in accordance with paragraph 4.33 of the Guidelines when assessing the degree of the appellant’s permanent impairment relating to his lumbar spine.
The Appeal Panel does not agree with the appellant’s submission to the effect that the Medical Assessor erred by not considering whether the impairment of his upper extremities ought to have included a rating under section 16.5 of AMA5. Section 16.5 of AMA5 allows for a rating of impairment in an upper extremity if a worker has a peripheral nerve disorder. In this case the Medical Assessor found from his clinical examination of the appellant that the appellant had no neurological deficits. The Medical Assessor noted the appellant reported symptoms of intermittent numbness in the ulnar digits of his hands and numbness in the median fingers of his hands, which the Medical Assessor said was consistent with carpal tunnel syndrome. Further the Medical Assessor noted that the appellant experienced numbness over the dorsum of his hand if he rubbed his forearm, which the Medical Assessor considered was consistent with Tinel’s sign over the branch of superficial radial nerve. However, when examining the appellant the Medical Assessor found that the Phalen’s and Tinel’s tests were negative for carpal tunnel and for ulnar nerve neuritis at the elbow. Again, the Medical Assessor was entitled to base his assessment on his findings from his examination rather than the appellant’s report of symptoms. His findings from examination revealed no physical signs of neurological deficits that would enable him to make a rating of impairment due to peripheral nerve dysfunction. Further, the Medical Assessor’s findings were supported by the findings of Dr Machart and Dr Giblin made from their examinations in that their findings did not reveal anything that would enable a diagnosis of peripheral nerve lesion as a result of the appellant’s injury.
As the Appeal Panel has found the Medical Assessor made an error with respect to his assessment of the appellant impairment of his upper extremities and of the appellant’s impairment relating to his lumbar spine, such that the MAC contains a demonstrable error, the Appeal Panel must correct those errors. The Appeal Panel does so by assessing the appellant’s overall degree of permanent impairment relating to his lumbar spine as 7% WPI, and the overall degree of permanent impairment of his right upper extremity as 4% WPI, and the permanent impairment of his left upper extremity as 4% WPI. The Appeal Panel notes that neither party raised any issue regarding the deduction the Medical Assessor made under s 323(1) of the 1998 Act relating to the appellant’s impairment of his lumbar spine and right upper extremity. The Appeal Panel considers that the deduction the Medical Assessor made relating to those body parts must be made in this case. In other words, the Appeal Panel agrees with the Medical Assessor’s assessment of that particular medical dispute.
The pre-existing injury in the appellant’s lumbar spine, in the Appeal Panel’s view, is revealed in the MRI that was done on 19 March 2018, that is less than six months after the appellant suffered injury. That examination established that the appellant had moderate desiccation at L1/2 and L2/L3 and facet arthropathy at the L3/4 and L4/5 level. That degeneration in the appellant’s lumbar spine would have been existing at the time he suffered injury as there was insufficient time between the date of his injury and the date of that examination for that degeneration to have developed. His injury would have precipitated pain from that degeneration of his lumbar spine. That degeneration also contributes to the dysmetria he experiences in the movement of his lumbar spine. In other words his permanent impairment relating to his lumbar spine is partly due to that pre-existing condition. It is difficult to determine precisely what that part is and hence, in accordance with s 323(2) of the 1998 Act it is to be assumed that the proportion is 10% as that is not at odds with the evidence.
The clinical records of the appellant’s GP revealed that in May of 2017 he was suffering symptoms in his right shoulder. That supports the Medical Assessor’s conclusion that prior to the appellant’s injury he had shoulder impingement. The appellant’s restricted range of movement of his right shoulder would be partly due to that pre-existing condition. That is, it forms a proportion of the appellant’s permanent impairment relating to his shoulder that results from his injury, bearing in mind that the impairment of his right shoulder is assessed by reference to the restricted range of movement he has in his right shoulder. Consequently, a deduction must be made under s 323(1) of the 1998 Act. Because it is too difficult to determine the exact proportion that the pre-existing condition contributed to his permanent impairment, in accordance to s323(2) that deduction is assumed to be 10%.
Thus, in correcting the errors in the MAC the Appeal Panel assessed the degree of the appellant’s permanent impairment relating to his lumbar spine from his injury 6% WPI and 4% WPI relating to his right upper extremity. The Appeal Panel observes the deduction made under s 323(1) relating to his right shoulder makes no difference to the outcome given that 0.4% deduction is rounded down to the nearest whole number.
For these reasons, the Appeal Panel has determined that the MAC issued on
9 September 2024 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
Matter number: | W2477/24 |
Applicant: | Michael Vecchie |
Respondent: | Ricegrowers 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 Rob Kuru 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) |
| Lumbar spine | 1/11/2017 | Chapter 4 | Table 15-3 | 7% | 1/10 | 6% |
| Thoracic spine | Table 15-4 | 0% | - | 0% | ||
| Cervical spine | Table 15-5 | 0% | - | 0% | ||
| Right upper extremity | Chapter 2 | Section 16i | 4% | 1/10th | 4% | |
| Left upper extremity | 4% | - | 4% | |||
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
[i] (2021) NSWPICMP227 (David).
[ii] Cheers v Midcoast Council [2024] NSWSC1553 at [30] – [31].
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