VIP Drum Reconditioners Pty Ltd v Muthugala
[2023] NSWPICMP 299
•29 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | VIP Drum Reconditioners Pty Ltd v Muthugala [2023] NSWPICMP 299 |
| APPELLANT: | VIP Drum Reconditioners Pty Ltd |
| RESPONDENT: | Milton Muthugala |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr John Brian Stephenson |
| MEDICAL ASSESSOR: | Dr Mark Burns |
| DATE OF DECISION: | 29 June 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding that no proportion of respondent’s permanent impairment was due to a previous injury or pre-existing abnormality or condition; Held – appeal Panel found MA did not err; Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 April 2023 VIP Drum Reconditioners Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 March 2023.
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
Milton Muthugala, the respondent, commenced employment with the appellant in 2002. On 9 July 2019 he stepped backwards on an uneven surface whilst working and fell. He dislocated his right shoulder. His manager took him to the Alpha Medical Centre at Seven Hills and then to the Norwest Private Hospital where, under full anaesthetic, his shoulder was put back into place.
He attempted a return to work on 10 July 2019 but due to pain was unable to work for more than two days.
An MRI scan of his right shoulder was done on 19 July 2019. Dr Mathew Lee who reported on the scan concluded it revealed the following:
“1. Features consistent with Hills Sach deformity and also reactive bony oedema/microtrabecular fractures throughout the posterolateral humeral head.
2. Complete full thickness supraspinatus and infraspinatus tears with retraction. No muscle belly atrophy. Marked superior subluxation of humeral head and acromion and spurring and flattening of acromion.
3. OA shoulder joint but articular cartilage cover appears intact but with attenuation particularly posterolaterally.
4. Extensive inflammation within bursa and joint with fluid and synovitis.”
His general practitioner (GP) referred him to orthopaedic surgeon Dr Mathew Yalizis, whom he consulted on 25 July 2019. In a letter Dr Yalizis wrote to the respondent’s GP following that consultation, Dr Yalizis said “the best chance of returning Milton to his premorbid work function would be to repair any of the rotator cuff that is repairable”. Dr Yalizis recommended the respondent undergo “an arthroscopic rotator cuff repair to repair whatever part of the cuff that has recently torn”.
On 16 September 2019 Dr Yalizis performed a right shoulder arthroscopic cuff repair and biceps tenotomy.
Just over a year before suffering injury to his right shoulder on 9 July 2019, the respondent had experienced pain in his right shoulder. On 14 February 2018 he consulted his GP regarding shoulder pain. He again consulted his GP on 16 February 2018 and reported that his pain had been improving.
On 3 April 2018 he again consulted his GP at which time his GP referred him for an ultrasound of his right shoulder. That was done on 3 April 2018 and Dr John Barnh who reported on the investigation concluded that it revealed tendinosis of the subscapularis and supraspinatus with a partial thickness articular sided tear of the supraspinatus and subdeltoid bursitis. On 5 April 2018 had an ultrasound guided injection of Xylocaine and Celestone was administered to the respondent’s right shoulder.
On 22 February 2021 consultant physician and rheumatologist Dr Terry Kwong examined the respondent at the request of the respondent’s solicitors to prepare a medico-legal report. It is apparent from a report Dr Kwong issued to the respondent’s solicitors on the same day that one of the matters that Dr Kwong was asked to report on was the respondent’s permanent impairment from the injury the respondent suffered on 9 July 2019. Dr Kwong advised that he assessed the respondent had 12% whole person impairment (WPI) from his injury, which included 1% WPI for scarring. Dr Kwong advised that in addition to the dislocation the respondent suffered of his right shoulder in the incident on 9 July 2019 the respondent also suffered micro-fractures of the humeral head, extensive bone bruising and bursal and joint diffusion. Dr Kwong advised that in his opinion “there is no deductible proportion”.
On 8 March 2021, the respondent completed a Personal Injury Claim Form, seeking compensation for 12% WPI he claimed he had from the injury he suffered on 9 July 2019. He indicated that in support of his claim he relied on the report of Dr Kwong dated 22 February 2021.
The appellant’s insurer then organised for orthopaedic surgeon Dr David Hale to examine the respondent on 23 August 2022. In a report to the insurer of 31 August 2022 Dr Hale advised that the respondent had “residual stiffness and pain post rotator cuff repair” and had “pre-existing asymptomatic rotator cuff pathology”. Dr Hale advised he assessed the respondent had 9% WPI relating to his right shoulder but, with respect to the degree of permanent impairment relating to the respondent’s injury on 9 July 2019, Dr Hale advised that he considered a deduction of 1/10th of the respondent’s total WPI ought to be deducted in accordance with clause 1.28 of the Guidelines. He consequently assessed the respondent had 8% WPI from his injury.
Following receipt of that report from Dr Hale, the insurer wrote to the respondent on 21 October 2022 notifying him, under s 78 of the 1998 Act, that it disputed it was liable to pay him compensation in response to his claim. It advised him that its reason for that was because the degree of his permanent impairment was less than 10% which, pursuant to s 66(1) of the Workers Compensation Act 1987 (the 1987 Act) his permanent impairment had to exceed in order for him to be entitled to compensation for permanent impairment. It indicated in its letter that it relied upon the report of Dr David Hale dated 23 August 2022 which it attached with its letter.
On 23 November 2022 the respondent initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his disputed claim to be paid compensation under s 66 of the 1987 Act. A delegate of the President referred the medical dispute between the parties relating to the degree of the respondent’s permanent impairment from his injury to the Medical Assessor to assess and, as indicated above, the Medical Assessor issued a MAC on 10 March 2023 in response to that referral. In the MAC the Medical Assessor certified that he assessed the respondent had 11% WPI from his injury on 9 July 2019 comprising 10% WPI relating to his right upper extremity and 1% WPI relating to scarring.
The appellant does not take issue with the Medical Assessor’s findings from his examination or the Medical Assessor’s assessments of the respondent’s permanent impairment. The appellant contends that the Medical Assessor made his assessment on the basis of incorrect criteria and that the MAC contains a demonstrable error because the Medical Assessor found that no proportion of the respondent’s permanent impairment was due to a pre-existing condition the appellant says the respondent has in his right shoulder.
Relevant to that issue the Medical Assessor noted in the MAC that the respondent experienced symptoms in his right shoulder during the course of his work in 2018. The Medical Assessor also noted in the MAC that the ultrasound of the respondent’s right shoulder done on 3 April 2019 was reported to reveal “tendinosis of the rotator cuff and the partial thickness to the supraspinatus and subdeltoid bursitis”. The Medical Assessor noted that the respondent had an ultrasound guided right shoulder injection on 5 April 2018. The Medical Assessor indicated that he had seen the report issued relating to that procedure.
The Medical Assessor also recorded that he had read copies of the respondent’s GP’s medical records for consultations on 14 February 2018, 3 April 2018 and 4 April 2018. The Medical Assessor noted that the record for 14 February 2018 related to the respondent having “increasing right shoulder pain since mid last week”; that the record for 3 April 2018 related to the respondent having “increasing right shoulder pain, limited movement”; and that the record for 4 April 2018 related to “tendinosis of subscapularis and supraspinatus, ultrasound right shoulder – right shoulder pain”.
The Medical Assessor recorded in the MAC that the respondent told him that the symptoms he experienced in his right shoulder in 2018 occurred after he had started working a different machine that required prolonged repetitive twisting and turning. The Medical Assessor recorded that the respondent said that he changed his job to avoid that particular activity and that his symptoms settled and that thereafter he had no problems in terms of symptoms or physical restrictions prior to his injury on 9 July 2019.
The Medical Assessor stated that he adopted the “active range of motion methodology” to assess the respondent’s permanent impairment relating to his right shoulder. The Medical Assessor recorded in the MAC the active range of movement that the respondent had of both his right and left shoulders. The Medical Assessor noted that the measurements were made using a Goniometer. As said, the appellant does not contest the findings the Medical Assessor made, or the assessment of the respondent’s WPI of his right shoulder the Medical Assessor made based on those findings.
The Medical Assessor provided the following explanation for concluding that no part of the respondent’s WPI relating to his shoulders was due to a pre-existing condition:
“I have read the accompanying medical specialist’s reports in the documentary brief and I have noted the history of shoulder pain occurring in the course of his work duties, about 15 months before the date of subject injury.
I have also had the opportunity to examine the MRI scan right shoulder 19 July 2019.
To put it mildly, his shoulder x-rays are terrible.
To simplify things, up until the beginning of 2018, for a period of 16 years, he had a physically demanding process worker type of job with no history of symptoms or injuries to either shoulder.
It would be a reasonable clinical acknowledgement to view both his shoulders, past the age of 70, as having age related changes which, are normally not symptomatic unless provoked.
The changes on the ultrasound of 3 April 2018 are consistent with expected age related changes and would reasonably have been expected to have been present on the left shoulder as well.
The only reason they were symptomatic on the right side was because of the provocative work environment.
I did consider making a deduction of 1/10th under Section 323, for these symptomatic
changes, but given that they would reasonably have been expected to be present on the left side as well, I felt that any deduction would not be balanced, fair or reasonable.
As such, I made no deduction for Section 323.”
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 respondent to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal. Further, neither party requested the respondent be re-examined.
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 that the Medical Assessor ought to have found that a proportion of the respondent’s permanent impairment was due to a pre-existing rotator cuff tear the respondent had in his right shoulder. The appellant highlighted in its submissions various parts of the MAC where the Medical Assessor had noted the symptoms the respondent had experienced in his right shoulder in 2018. The appellant submitted that the Medical Assessor by not making a deduction under s 323(1) applied incorrect criteria in making his assessment of the respondent’s permanent impairment. The appellant submitted that the evidence supported a finding that a pre-existing condition and symptomatic degenerative changes were present in the respondent’s right shoulder.
The appellant further submitted that the Medical Assessor’s conclusion not to make a deduction on the basis that the respondent had degenerative changes in his left shoulder was not supported by the evidence and was an error.
The appellant submitted that the Medical Assessor having accepted that the respondent had symptomatic age related changes in the respondent’s right shoulder prior to the injury on 9 July 2019, the Medical Assessor was required to consider whether those changes contributed to the degree of the respondent’s overall impairment. The appellant submitted that there was substantial evidence for the Medical Assessor to make a finding of a pre-existing condition contributing to the respondent’s overall impairment. The appellant submitted that it did not matter that the respondent’s symptoms in his right shoulder may have settled before the injury on 9 July 2019.
The appellant submitted that the medical evidence supported a finding that there was an actual symptomatic pre-existing condition affecting the respondent’s right shoulder in the form of a partial tear of the supraspinatus tendon and tendinosis of the subscapularis which contributed to the respondent’s overall permanent impairment resulting from his injury.
In reply, the respondent submitted that he was asymptomatic at the time of his injury on 9 July 2019. The respondent submitted that the Medical Assessor’s reasoning demonstrated that there was no previous injury, pre-existing condition or abnormality “which draws the application of s323”.
The respondent submitted that his injury on 9 July 2019 was a frank injury which resulted in his need for surgery. He submitted that it was that injury that resulted in his impairment and that this was assessed appropriately by the Medical Assessor.
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.
There are several authorities detailing the approach a Medical Assessor must take when assessing what if any deduction is to be made under s 323(1) of the 1998 Act.[1]
[1] See especially, Cole v Wenaline Pty Ltd [2010] NSWSC 78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz), Ryder v Sundance Bakehouse [2015] NSWSC526 (Ryder) and Pereira v Siemens Ltd [2015] NSWSC 1133.
The Medical Assessor must firstly be satisfied that the worker has an impairment from a work injury at the time of assessment. Secondly, a worker’s prior injury or pre-existing condition or abnormality must be identified. Thirdly, it must be determined whether a proportion of a worker’s post-injury impairment is due to that prior injury or pre-existing condition. Lastly, the extent to which a worker’s post-injury impairment is due to the prior injury or pre-existing condition or abnormality must be determined.
The third stage of the process cannot be done based on assumption or hypothesis, but must be done by reference to the evidence. The evidence must be able to demonstrate that a proportion of a worker’s impairment is due to the pre-existing condition or previous injury.[2] The Supreme Court held in Ryder that the pre-existing condition that a worker has or the prior injury the worker has suffered must make a difference to the outcome in order that a worker’s impairment can be found to be due to it. Insofar as it does make a difference, there must be a deduction.
[2] See Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [86].
In this matter, the Medical Assessor assessed the respondent to have 11% WPI from his injury so obviously the Medical Assessor was satisfied that the respondent had an impairment from his work injury at the time of medical assessment.
The Medical Assessor also identified a pre-existing condition, specifically that which was revealed in the ultrasound investigation of the respondent’s right shoulder done on 3 April 2018 being a rotator cuff tendinopathy with a partial tear, which the Medical Assessor considered were normal age related changes.
The Medical Assessor inferred that the age related changes the ultrasound revealed were present in the respondent’s right shoulder would also be present in the respondent’s left shoulder. The Medical Assessor made that inference based on the respondent being over 70 years of age and that symptoms from the pathology would only manifest if provoked, which is what the Medical Assessor considered occurred with respect to the respondent’s right shoulder due to the work the respondent performed in 2018. The expert members of the Appeal Panel, namely Dr Stephenson and Dr Burns, considered that the Medical Assessor’s reasoning with respect to that is sound and agree with the conclusion the Medical Assessor drew, specifically that the respondent in all likelihood had the same degenerative changes in his left shoulder as that which the ultrasound revealed in his right shoulder.
The Medical Assessor observed that the respondent’s movement of his left shoulder was not impeded by those age related changes. It is apparent to the Appeal Panel, when the MAC is read as a whole, and bearing in mind that the Medical Assessor assessed the respondent’s impairment relating to his right shoulder by reference to the restricted range of movement the respondent had in his right shoulder, that the age related changes in the respondent’s right shoulder did not impede his movement of his shoulder and consequently did not contribute to the impairment the Medical Assessor found that the respondent had in his right shoulder from his injury. In other words, the pre-existing condition the respondent had in his right shoulder did not make a difference to the outcome.
The Appeal Panel agrees with the Medical Assessor’s analysis relating to this. In other words, the Appeal Panel does not consider the Medical Assessor erred by finding that the respondent’s pre-existing condition in his right shoulder did not contribute a proportion of the respondent’s permanent impairment from his injury.
Further, and in arguendo noting that the Appeal Panel has not found error with the Medical Assessor’s reasoning, if the Panel had been required to re-assess the medical dispute then the Appeal Panel would have also found, for slightly different reasons, that the respondent’s pre-existing condition in his right shoulder did not contribute to the permanent impairment the respondent had in his right shoulder. This is because what occurred in the incident in which the respondent suffered injury was that he dislocated his right shoulder anteriorly. His shoulder then had to be reduced. The shoulder is a ball and socket joint and what occurs with an anterior dislocation of the shoulder is the ball coming out of the joint. In this instance it caused the respondent to suffer impaction fractures of the head of the humerus. Using different words, it caused a divot in the back of the head of the humerus. It is that specific pathology that has resulted from the injury, and not from the pre-existing condition in the respondent’s right shoulder, that impedes the respondent’s range of movement of his right shoulder. The Appeal Panel also considers, as did the Medical Assessor, that the respondent’s permanent impairment is best assessed based on the restricted range of movement the respondent has in his right shoulder.
So, in other words, given that the Appeal Panel considers the respondent’s limited range of movement is due entirely to the specific pathology that was caused by the injury the respondent suffered in the injury on 9 July 2019 and given that the respondent’s impairment is due to the restricted range of movement he has in his shoulder from that pathology, the permanent impairment of the respondent relates wholly to the injury he suffered in the incident of 9 July 2019. The pre-existing condition of tendinosis of his rotator cuff and the partial thickness tear of the supraspinatus and subdeltoid bursitis does not affect the movement of his right joint, and this is supported by the fact that, as the Medical Assessor found, a similar pathology likely exists in his left shoulder and movement of his left is unimpeded.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 March 2023 should be confirmed.
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