Velovski v Woolworths Group Limited
[2021] NSWPICMP 240
•17 December 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Velovski v Woolworths Group Limited [2021] NSWPICMP 240 |
| APPELLANT: | Lila Velovski |
| RESPONDENT: | Woolworths Group Limited |
| APPEAL PANEL: | Member William Dalley Dr Gregory McGroder Dr Roger Pillemer |
| DATE OF DECISION: | 17 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The parties agree Medical Assessor (MA) omitted assessment of cervical spine; in respect of the referral of right upper extremity the MA declined to assess the shoulder and elbow as he was of the opinion that impairment in these joints was unrelated to the subject accident in confined assessment to the right wrist; Held - it was clear that the claim in respect of the right upper extremity included impairments in the shoulder elbow and wrist; apart from the error in failing to assess the cervical spine the MA had fallen into error in failing to assess the shoulder and elbow; discussion of Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd; Skates v Hills Industries Ltd applied; Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 March 2021 Lila Velovski lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Richard Crane, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 February 2021.
The appellant relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, that ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground 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).
RELEVANT FACTUAL BACKGROUND
Mrs Velovski was employed by Woolworths Group Limited loading trolleys with stock in accordance with orders. On 12 December 2018, Mrs Velovski was picking up and manoeuvring a package containing 12, 750ml glass bottles of water when she felt the onset of symptoms in her right arm.
Mrs Velovski was treated by doctors at her usual general practice. She was provided with a wrist splint to assist her in performing her work tasks. Mrs Velovski undertook exercise physiotherapy and attempted to return to her pre-injury work level. However, she developed further pain in the right arm.
Further physiotherapy did not resolve the symptoms and on 28 March 2019 Mrs Velovski underwent surgery on the right wrist.
Mrs Velovski returned to work on modified duties for restricted hours, but her symptoms did not improve.
On 8 September 2020 Mrs Velovski was examined by an orthopaedic surgeon, Dr Merhat Guirgis at the request of her solicitors for the purpose of a claim for lump sum compensation. Dr Guirgis assessed Mrs Velovski as suffering 16% whole person impairment (WPI) as a result of injury affecting the right shoulder, right elbow and right wrist. He assessed 6% WPI in respect of the cervical spine. The combined total assessed was 21% WPI.
Mrs Velovski’s solicitors made a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 in accordance with the report of Dr Guirgis. The insurer arranged for Mrs Velovski to be examined by Dr Anthony Smith, Orthopaedic Surgeon, who examined Mrs Velovski on 22 October 2020. Dr Smith concluded that Mrs Velovski’s symptoms required further investigation and that it could not be said that her condition had reached maximum medical improvement.
The insurer, in accordance with the opinion of Dr Smith, made no offer of settlement and an Application to Resolve a Dispute was filed in the Commission. The respondent maintained its denial of liability.
The medical dispute was referred to the Medical Assessor for assessment of the degree of permanent impairment as result of injury to the cervical spine and right upper extremity.
The Medical Assessor examined Mrs Velovski on 1 February 2021. He assessed
Mrs Velovski as suffering 4% WPI in respect of impairment arising from injury to the right wrist.
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 because, error having been established, there was insufficient material available to the Panel to permit assessment of the appropriate extent of impairment resulting from the subject injury.
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 Roger Pillemer of the Appeal Panel conducted an examination of the worker on 15 November 2021 and reported to the Appeal Panel. He reported as follows:
“REPORT OF THE EXAMINATION BY MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: M1-7021/20
Appellant: Lila VELOVSKI
Respondent: Woolworths Group Limited
Examination Conducted By: Dr Roger Pillemer
Date of Examination: 15 November 2021
1. The workers medical history, where it differs from previous records
I read Ms Velovski the history that she gave to Dr R Crane at the time of the Medical Assessment Certificate on 1 February 2021. Ms Velovski agreed with the history but informed me that she has become worse since that time.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Velovski complains of pain in the right side of her neck going into her right shoulder region and down her right arm and into the fingers of her right hand, particularly her thumb and index finger. Importantly on very specific questioning, these symptoms have been present ever since her injury on 12 December 2017. There is no doubt in her mind that the neck, arm and finger symptoms are all related. When one gets worse, the others get worse.
She describes her symptoms as being constantly present although she says she is not too bad in the mornings when she wakes up, but within a couple of hours her symptoms increase and also tend to increase towards the end of the week after she has been doing her work.
Symptoms are aggravated by any use of her right arm, particularly with pushing, pulling or lifting, and she also finds that rotating her head and neck to the right will also significantly increase her symptoms. She also feels that more recently her right arm has started shaking.
As far as work is concerned, she continues working for Woolworths, but ever since Covid has been working from home and doing 36 hours per week. She informs me that she cannot do telephone answering at this stage and simply does emails, and will occasionally make outgoing calls. She does have to take the odd day off work but this is mainly because of her migraines, which she says have only occurred since her injury.
Ms Velovski lives at home with her husband and three children, and she does a minimal amount of housework at this stage mainly using her left arm. She is able to manage her self-care.
3. Findings on clinical examination
Ms Velovski is an adult female who was rather protective of her right arm today. She has a satisfactory range of cervical movement although lateral rotation to the right was moderately restricted and increased her symptoms.
She has a full range of movements of all the joints of her left upper limb, but does have residual restriction of movements of her right shoulder, right elbow and right wrist, very much in keeping with the findings of the AMS at the time of his examination on 1 February 2021.
Importantly Ms Velovski has an absent triceps jerk on the right side (C7), as well as having hypoaesthesia to pinprick down the lateral border of her right forearm starting at the level of the elbow and extending into the thumb and index finger in a C6 distribution. This sensory loss was distinct, marked and present with repeated testing. Grip strength on the right measured approximately one-third of that on the left.
4. Results of any additional investigations since the original Medical Assessment Certificate
Ms Velovski has not had any further investigations carried out.”
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, upon referral of the cervical spine and right upper extremity, the Medical Assessor had failed to assess the degree of impairment arising from the subject injury and had assessed only the worker’s wrist, having determined that impairments in the right shoulder and right elbow were unrelated to the subject injury and in not assessing the cervical spine.
In reply, the respondent conceded that the Medical Assessor had fallen into error “in that the AMS [Medical Assessor] has exceeded his exclusive jurisdiction to determine a medical dispute under section 319 of 1998 Act”. The respondent agreed that the referral for assessment to the Medical Assessor included the right elbow and right shoulder and the Medical Assessor had fallen into error in omitting to record his assessment of the right shoulder and right elbow impairment when completing the certificate, Table 2 to the MAC, but sufficient information was available in the statement of reasons which enabled assessment.
The respondent further submitted that the Medical Assessor had not fallen into error by not including an assessment of the cervical spine, as his examination revealed no assessable impairment.
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.
As noted above, the medical dispute referred to the Medical Assessor required assessment of the cervical spine and the right upper extremity. As appropriately conceded by the respondent, the referral in respect of the right upper extremity was intended to include assessment of any impairments resulting from the injury including the shoulder, elbow and wrist.
The Medical Assessor examined Mrs Velovski on 1 February 2021. He noted “The main physical problem concerns the right wrist but lesser degree of discomfort noted in the right elbow and shoulder. A clicking sensation is noted in the elbow on occasions”.
Upon examination of the cervical spine the Medical Assessor recorded: “There was no deformity. Range of motion was within normal limits as concerned flexion, extension, lateral bending and rotation with no evidence of muscle spasm or guarding”.
The Medical Assessor then recorded:
“Mid arm circumference was 29 cm bilaterally and maximal forearm circumference was 26 cm bilaterally. It was noted that the claimant was wearing a Velcro splint secured around the thumb and the wrist. This is not used for computer work but for any significant load work, it is applied to the wrist.
Sensation was described as reduced in the right arm posteriorly and laterally, also over the right thumb and little finger, but this was not in a dermatomal or neurological distribution. Muscle power, tone and reflexes were all normal in the upper extremities.”
The Medical Assessor recorded the range of motion in the right wrist (6% upper extremity impairment (UEI), right elbow (4% UEI) and right shoulder (14% UEI). The Medical Assessor did not assess impairment in the cervical spine.
Right upper extremity
Under the heading “summary of injuries and diagnoses” the Medical Assessor noted: “The applicant has sustained an injury to her right wrist occurring on 12 December 2017, followed by surgery but no relief of the symptomatology. Diagnosis had been made of a tear of the triangular fibrocartilaginous complex (TFCC)”.
The Medical Assessor reported: “I have assessed 6% upper extremity impairment related to the injured right wrist and this converts to 4% whole person impairment from the AMA5 Guides, Table 16-3, page 439”. He explained his reasons: “I have not included impairment for the right shoulder or elbow, as there is no evidence to support injuries having occurred in these body areas as a result of the subject injury”.
The respondent accepts that the referral of the right upper extremity for assessment was intended to include the shoulder and elbow as well as the wrist. It is apparent from the report of Dr Guirgis that Mrs Velovski’s claim included impairment said to arise from the right elbow and right shoulder as well as the right wrist.
The Application to Resolve a Dispute filed on behalf of the applicant alleged injury to each of the right shoulder, elbow and wrist.
In omitting assessments of the right shoulder and right elbow when calculating the extent of impairment in the right upper extremity, the Medical Assessor fell into error in that he exceeded his jurisdiction in basing his assessment on his opinion that there had been no injury to the right shoulder or right elbow.
The decision of the Court of Appeal in Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd[2] confirms that it is the role of the Commission to determine injury and the role of the Medical Assessor to determine the effects of injury. It is the medical dispute that governs the breadth of assessment rather than the terms of the referral[3]. Although the referral did not specifically nominate the shoulder and elbow, it was readily apparent that impairment, if any, in those joints formed part of the applicant’s claim.
[2] [2014] NSWCA 264.
[3] See Skates v Hills Industries Ltd [2021] NSWCA 142 per Leeming JA at [48] and [50].
The Panel is satisfied that error has been established in this regard. As noted by the respondent, the Medical Assessor has documented the range of motion in respect of the right shoulder and right elbow and the corresponding extent of upper extremity impairment, although not including these in the final assessment of the right upper extremity.
No complaint is made by the parties in respect of the respective upper extremity impairments measured by the Medical Assessor and the Panel accepts the range of motion assessments as documented in the MAC. Those measurements are consistent with the measurements carried out by Dr Pillemer upon re-examination.
In reassessing the extent of impairment in the right upper extremity, the Panel is satisfied that upper extremity impairment is appropriately assessed by combining upper extremity impairment in the shoulder, elbow and wrist and converting the total to WPI in accordance with Table 16-3 of AMA5[4]. The respective assessments are 6% UEI for the wrist, 4% UEI for the elbow and 14% UEI for the shoulder. The total of 24% UEI is converted to 14% WPI in accordance with that Table.
[4] page 439.
Cervical spine
The medical dispute between the parties included the extent, if any, of impairment in the cervical spine and the issue of whether any such impairment had reached maximum medical improvement. The Application to Resolve a Dispute and the terms of the referral to the Medical Assessor both included reference to the cervical spine.
As noted above, the Medical Assessor recorded certain observations upon examination of the cervical spine but did not relate these to the Guidelines which require assessment by way of diagnosis related estimates (DRE)[5]. In failing to assess the cervical spine, the Medical Assessor failed to exercise his jurisdiction and, in so doing fell into error, as noted by the parties. The ground of appeal with respect to the cervical spine is established.
[5] Guidelines, 4.1, page 24.
Accordingly, the Panel is required to assess impairment of the cervical spine. The observations of the Panel member, Dr Roger Pillemer, with respect to the cervical spine are set out above.
Dr Pillemer noted complaint of pain in the right side of the neck going into the right shoulder region and down the right arm into the fingers of the right-hand, particularly the thumb and index finger, the symptoms having been present since the time of the subject injury.
Upon examination Dr Pillemer noted; “a satisfactory range of cervical movement although lateral rotation to the right was moderately restricted and increased her symptoms”.
Dr Pillemer noted an absent triceps jerk on the right side (C7), as well as hypoaesthesia to pinprick down the lateral border of the right forearm from the level of the elbow into the thumb and index finger in a C6 distribution. Dr Pillemer reported “This sensory loss was distinct, marked and present with repeated testing. Grip strength on the right measured approximately one third of that on the left”.The Panel is satisfied that those findings are consistent with assessment of Mrs Velovski as falling within the category DRE III. Table 15.6 of AMA5[6] lists the relevant criteria which include;
“significant signs of radiculopathy, such as pain and/or sensory loss in a dermatomal distribution, loss of relevant reflexes, loss of muscle strength, or unilateral atrophy compared with the unaffected side, measured at the same distance above or below the elbow, neurological impairment may be verified by electromagnetic findings.”
[6] Page 392.
Paragraph 4.27 of the Guidelines sets out the criteria for diagnosing radiculopathy[7], two of the criteria set out must be established, one of which must be major. In the present case the signs and symptoms observed by Dr Pillemer establish loss of reflex (the triceps jerk on the right side) and reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution (the hypoaesthesia in the C6 distribution). Both are major criteria.
[7] that is "the impairment caused by malfunction of the spinal nerve root or nerve roots".
The Panel notes that the Medical Assessor and Dr Guirgis did not make a finding of radiculopathy at the time of the respective examinations. However, the Panel is satisfied that the existence of radiculopathy upon repeated testing by Dr Pillemer establishes that radiculopathy was present on the day of examination.
Mrs Velovski is appropriately classified as falling within DRE III and is to be assessed as having 15% WPI in respect of the cervical spine.
A further 2% WPI is to be added pursuant to paragraphs 4.33 to 4.35 of the Guidelines in respect of interference with activities of daily living. Paragraph 4.35 provides that an assessment of additional 2% is warranted:
“if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude such as shopping, climbing stairs or walking reasonable distances.”
The evidence of Mrs Velovski contained in her statement, together with her complaints to the Medical Assessor and Dr Pillemer are consistent with the clinical observations and the likely effects of her impairment so as to warrant the assessment of a further 2% WPI in respect of interference with activities of daily living.
Accordingly, Mrs Velovski is appropriately assessed as having 17% WPI with respect to the cervical spine as a result of the subject injury.
Calculation of Impairment
There is no suggestion of any pre-existing condition or abnormality nor any previous injury requiring a deduction pursuant to section 323 of the 1998 Act with respect to either the cervical spine or the right upper extremity.
The Panel has assessed 14% WPI in respect of the right upper extremity and 17% in respect of the cervical spine. Applying the Combined Values Chart[8] there is a total of 29% WPI as result of the subject injury.
[8] AMA5, page 604.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 February 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 Richard Crane 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. Cervical spine | 12/12/17 | Chapter 4, Page 24-29 | Chapter 15, Page 392 Table 15-5 | 17% | Nil | 17% |
| 2. Right upper extremity | 12/12/17 | Chapter 2, Pages 10-12 | Chapter 16, Pages 433-521. Table 16-3 | 14% | Nil | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 29% | |||||
Mr William Dalley
Member
Dr Gregory McGroder
Medical Assessor
Dr Roger Pillemer
Medical Assessor
17 December 2021
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