Vision Pools Pty Limited v Riley
[2023] NSWPICMP 184
•4 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Vision Pools Pty Limited v Riley [2023] NSWPICMP 184 |
| APPELLANT: | Vision Pools Pty Limited |
| RESPONDENT: | Jasson Riley |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 4 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; injury to cervical and thoracic spines and right shoulder; section 323 deduction not made by Medical Assessor (MA) but was appropriate in both cervical and thoracic spines in light of pre-existing radiological findings; MA assessed right upper extremity impairment higher than other examiners; other medical evidence showed greater range of movement; inconsistency observed on re-examination; assessment of range of movement inappropriate; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 December 2022 Vision Pools Pty Limited (Vision) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 November 2022.
Vision relies on the following grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was 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 grounds of appeal on which the appeal is made.
Rule 128 of 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 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
Mr Riley was employed by Vision as a labourer. He suffered an injury on 26 February 2019 to his neck, right shoulder and thoracic spine when he was moving large concrete blocks which had been cut from a retaining wall without human or mechanical assistance. When he was manoeuvring a heavy block over a pile of rubble, it tipped awkwardly, causing him to take the full weight of the block and to suffer an jarring sensation in the right side of his neck, thoracic spine and right shoulder.
Mr Riley has not undergone surgery. He returned to work in August 2019 and ceased in April 2020. He was referred to Dr King, pain specialist, who performed medial branch blocks followed by radiofrequency neurotomy targeting the right C5 and C6 facet joints. Mr Riley told Dr Dias (whom he saw at the request of his solicitors on 18 November 2021) and Dr Nair (whom he saw at the request of Vision’s insurer on 25 February 2022) that his right arm pain improved to an extent after that treatment.
Dr Dias assessed 18% whole person impairment (WPI) comprised of 6% in respect of his cervical spine, 5% in respect of his thoracic spine and 8% in respect of his right upper extremity. The latter assessment was made using the range of motion.
Dr Nair assessed 14% WPI, assessing Mr Riley in DRE cervical category III, allowing 1% for the impact on the activities of daily living and deducting one-tenth under s 323 because of a congenitally narrow cervical spinal canal. Dr Nair said that there was no pathology identified in his right shoulder and no work related impairment in his thoracic spine.
Mr Riley claimed compensation in respect of 25% WPI, relying on Dr Nair’s assessment for his cervical spine and Dr Dias’ assessments for his thoracic spine and right upper extremity.
The Medical Assessor assessed 34% WPI – being 17% in respect of Mr Riley’s cervical spine, 5% in respect of his thoracic spine and 16% in respect of his right upper extremity. He did not make any deduction under s 323 of the 1998 Act.
PRELIMINARY REVIEW
We 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, we determined that Mr Riley should undergo a further medical examination because despite observing that the pathology in Mr Riley’s right upper extremity was not severe, the Medical Assessor did not apply paragraph 2.14 of the Guidelines.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Dr Burns conducted an examination of the worker on 19 April 2023. His report dated 24 April 2023 is attached to these reasons. The examination was delayed because of Mr Riley’s COVID-19 vaccination status.
The parts of the MAC 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 we have considered them.
In summary and in submissions prepared by its solicitor, Ms Tancred, Vision submitted that the Medical Assessor incorrectly applied the criteria with respect to the assessment of Mr Riley’s right upper extremity. The Medical Assessor observed that the range of motion he observed was the most restricted so far. Vision noted that Dr Dias had observed a full range of motion with respect to external rotation, adduction and extension and observed that Mr Riley demonstrated abduction to 90° flexion to 90° and internal rotation to 30°. Vision said that clinical evidence supported of finding a range of motion consistent with that of Dr Dias. Vision said that the Medical Assessor failed to have regard to paragraph 1.36 of the Guidelines, attributing Mr Riley’s presentation to a chronic pain condition which results in gross dysfunction of the neck upper back and right shoulder complex but fell well short of the criteria for complex regional pain syndrome. Paragraph 1.36 reads:
“AMA5 (p19) states “Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.’”
Vision also submitted that the Medical Assessor failed to deduct more than one-tenth of the assessed impairment under s 323 of the 1998 Act which was at odds with the available radiological evidence. It also submitted that the Medical Assessor made a demonstrable error in failing to consider the impact of Mr Riley’s underlying Scheuermann’s disease in his thoracic spine and the changes in his cervical spine.
In reply Mr McKean prepared submissions on behalf of Mr Riley. He said that the MAC showed that the Medical Assessor was alert to the findings of other assessors and that the only fair reading of the MAC is that the Medical Assessor regarded Mr Riley as truthful and consistent and that his condition had deteriorated with time, at least in part due to a chronic pain condition. He said that the Medical Assessor applied the principles for evaluating the abnormal range of motion of a joint set out in 16.4 of AMA 5 and paragraph 2.20 of the Guidelines. Mr Riley submitted that Vision sought to conflate pre-existing impairment with a pre-existing condition and incidental radiological findings.
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.
Cervical spine
Vision did not take issue with the Medical Assessor’s assessment of the level of impairment of Mr Riley’s cervical spine. It relied solely on the absence of a deduction under s 323.
The Medical Assessor began by summarising the documentary evidence including the report of Dr Nair. He noted that Dr Nair had deducted one-tenth of his assessment for a congenitally narrowed spinal canal and said that narrowing of the spinal canal was not mentioned in any of the radiological reports.
The Medical Assessor set out Mr Riley’s present symptoms:
“The major issue is pain in and around his right shoulder with gross restriction of movement. He has pain radiating all the way down his right arm to the thumb and right index finger.
There is also a lot of pain in his neck and his mid to upper back radiating out towards the right shoulder complex. His range of movement of his head and neck is very grossly reduced.
As time has continued, he finds that the only postural position in which he can stand is to be slightly stooped and with his head bent a little towards the right.”
He described his examination of Mr Riley’s cervical spine:
“There was a lot of pain in his neck with associated tenderness in the midline, radiating well down between the shoulder blades. This radiated towards the right. There was pain over the superior surface of the scapula and also over the medial border. Movement of his head was very grossly reduced. He had some rotational movement towards the left but hardly any movement towards the right. Extension was non-existent. He had about one-third of the range of forward flexion.”
The only investigation of Mr Riley’s cervical spine to which the Medical Assessor had regard was an MRI scan dated 10 July 2019 which he said showed:
“Minor degenerative changes in the lower cervical spine. On the left side there is foraminal narrowing at C5/6.”
The Medical Assessor said that Mr Riley’s presentation was entirely consistent. He summarised the injuries and his diagnosis:
“Mr Riley sustained a severe wrenching effect on his right upper extremity, also affecting the cervical spine and upper thoracic spine in late February 2019. So far, the clinical findings have been relatively sparse although at today’s assessment, he had very gross dysfunction of his neck, upper back and right forequarter. Since the original injury in February 2019, he has developed a chronic pain condition although this falls well short of the criteria for complex regional pain syndrome.”
The Medical Assessor assessed 17% WPI in respect of Mr Riley’s cervical spine. He said:
“Regardless of the nerve conduction studies which were reported as normal in August 2019, at this assessment there was very obvious reduced sensation in the C6 dermatomal distribution. As a result, Mr Riley’s cervical spine is assessed in DRE Cervical Category III on Page 392, Table 15-05. This provides a whole person impairment ranging between 5% [sic 15] and 18%, depending on the activities of daily living. For this he is very grossly reduced, relaying [sic] on his wife to do just about all of the housework.”
When commenting on Dr Nair’s report, the Medical Assessor said:
“Specialist Orthopaedic Surgeon, Dr Anil Nair in his two reports of 18/09/20 and 02/03/22 advises DRE III with the cervical spine, with which I would agree. He deducts 10% because of a narrow spinal canal. This is not described in any of the radiological reports. Similarly, Dr Utham Dias deducted one-tenth from the cervical spine impairment, yet there is no history (absolutely none) of Mr Riley having any pre-existing condition of any part of his spinal column, yet he previously was very keen on sports, playing soccer, basketball and also swimming and surfing. Also attention is drawn to the extraordinarily heavy job that he was carrying out and to the previous physically arduous occupations which he pursued. I am therefore persuaded that any deduction is inappropriate.”
The MRI scan dated 10 July 2019 was reported by Dr Josey as showing:
“…C5/6: There is a tight foraminal narrowing on the left due to uncovertebral spurring and a facet arthrosis. The canal and right foramen are patent.
C6/7: A central disc osteophyte complex is present, no abnormal significant within the cord. The disc osteophyte complex slightly flattens the cord parenchyma. There is bilateral foraminal narrowing due to uncovertebral spurring although relatively mild.
…
COMMENT:
There is foraminal narrowing on the left at C5/6, relatively tight and due to uncovertebral spurring and an associated facet arthrosis.
There could perhaps be a small superimposed protrusion although difficult to be certain due to patient motion and subsequent mild reduction in image quality.”
Dr Ferch, neurosurgeon, who referred Mr Riley for the scan, said on 18 July 2019:
“I had the opportunity to review Jasson in my rooms on 18/07/2019 following his recent cervical spine MRI. This study does confirm degenerative change at the C5/6 level but there is no compromise to the right C6 nerve root. There is some narrowing on the left. Jasson is asymptomatic on the left and his right upper limb symptoms are not well explained on the basis of his MRI. It is possible that he has a compromise to the nerve outside his spine and nerve conduction studies would better evaluate for this.”
Dr Nair said that the 2019 MRI scan showed:
“Trefoil spinal canal. Broad based disc herniations in the sub-axial cervical spine. Degeneration at C5/6. There was mild foraminal narrowing.”
Dr Katekar reported that nerve conduction studies on 22 August 2019 did not indicate significant peripheral nerve entrapment. The relevant clinical history was “pain and paraesthesia in the right arm. Normal cervical MRI. ? Nerve entrapment.”
Dr King’s report dated 15 April 2021 summarised his treatment:
“Comprehensive clinical assessment suggested that his major symptom, disabling, somatic referred pain from the right side of his lower neck to the top and back of his right shoulder, and down his right arm was due to injuries of the right C5-6 and C6-7 zygapophysial (z.) joints . This was investigated by diagnostic, double-blind controlled medial branch blocks. The results of those blocks showed the main active pain generators were the right C5-6 and C6-7 z. joints.
Accordingly, approval was sought for specific, targeted treatment of those two joints by thermal radiofrequency neurotomy (T.R.F.N.). This treatment was performed on 25 February, 2021 at Mayo Private Hospital in Taree.
Mr. Riley has now recovered from the post-procedural discomfort and is now pain-free. T.R.F.N. does not destroy nerves, deliberately, and the effect of the treatment wears off over time, usually about two years but sometimes much longer. When it does the pain returns but it can be abolished again for another prolonged period by repeat treatment.
Another point I wish to make clear is that while T.R.F.N. controls the pain, it does not repair the underlying injuries. The injuries of Mr. Riley's C5-6 and C6-7 z. joints are permanent, so he is permanently unfit for activities that involve loading of those joints.”
In his report dated 18 September 2020 Dr Nair said:
“Answering all parts together, the medical imaging does demonstrate a trefoil canal or congenital stenosis and C5/6 degenerative disease. It is my impression however that the incident at work on 26 February 2019 has resulted in a permanent aggravation of the pre-existing condition.”
Dr Nair said in his report dated 2 March 2022 that Mr Riley continued to have discogenic pain and pain in the right C6 dermatomal distribution. He said:
“Utilising New South Wales Workers' Compensation Guidelines and the AMA 5 the Edition, Mr Riley falls into DRE Cervical Category Ill due to verifiable radiculopathy. The cervical radiculopathy has been verified by medical imaging specifically MRI cervical spine as well as the favourable response to radiofrequency ablation . DRE III is 15% WPI. Due to difficulties with the heavier gradation of activities of daily living Mr Riley qualifies for 1 % thus giving him a 16% whole person impairment. Due to a congenitally narrow cervical spinal canal there is a one-tenth deduction, thus after rounding Mr Riley qualifies for a 14% whole person impairment due to his workplace injury.”
The Medical Assessor said that there was no evidence of a pre-existing condition which would necessitate a deduction. His reference to Mr Riley’s active sporting life and arduous occupation suggests he considered that a deduction was not warranted in the absence of symptoms. Section 323 does not require that there have been previous symptoms.
In Vitazv Westform (NSW) Pty Ltd[2] Basten JA said:
“…the submissions on the appeal, … , complained that there can be no deduction under s 323, as a matter of law, in the absence of a pre-existing physical impairment. It was further submitted, by reference to the opinion of three medical commentators in a local publication:
‘If a worker develops permanent pain and symptoms due to work consistent with spondilosis in the neck region, that condition might be assessed at DRE II. Although the spondilosis is likely to have been degenerative, if there were no symptoms in the period prior to the work related complaint, then there was no rateable impairment at that time. So nothing would be subtracted from the current impairment.’
That opinion contained a legal assumption which is inconsistent with the approach adopted by this Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32] and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]). The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. ...”
[2] [2011] NSWCA 254 at [42]-[43].
In Ryder v Sundance Bakehouse[3] Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[3] [2015] NSWSC 526 at [45].
We agree with Dr Ferch and Dr Nair that the injury is the aggravation of degenerative change in Mr Riley’s cervical spine. We do not agree with the Medical Assessor’s assessment that the pre-existing changes in his cervical spine were minor – that is inconsistent with the radiologist’s report that there was tight foraminal narrowing. The degenerative changes were noted on an MRI scan within a few months of the injury. We are satisfied that without those pre-existing changes, the current condition in Mr Riley’s cervical spine would not be as severe. The extent of the contribution is difficult to determine so that the presumption of a one-tenth deduction in s 323(2) applies. The assessment of Mr Riley’s cervical spine after the deduction is 15% WPI.
Thoracic spine
The Medical Assessor noted that Mr Riley’s thoracic spine was “very stiff and painful” and that an MRI scan dated 22 June 2021 showed Schmorl’s nodes and a small central protrusion at T8. The Medical Assessor assessed 5% WPI, saying:
“The thoracic spine is addressed in AMA 5 Page 389, Table 15-04. No radiculopathy features are identified. He is therefore assessed in Thoracic Category II. This provides a whole person impairment ranging between 5% and 8%, depending on the activities of daily living. This has already been attributed to the cervical spine. Therefore, the thoracic spine remains at 5% WPI.”
The Medical Assessor noted that his assessment was the same as that of Dr Dias.
A CT scan of Mr Riley’s thoracic spine was reported by Dr Lewis as showing:
“The point of maximum pain and tenderness appears to correspond to the posterior T11 vertebral body , slightly to the right of the midline. Corresponding to this, there appears to be a small avulsion fracture or unfused secondary ossifications that are involving the right superior T11 articular facet. Either could be symptomatic and relevant to the current clinical presentation.
The remaining thoracic vertebral bodies and posterior elements are intact.
The alignment is normal.
No significant thoracic disc bulges or protrusions are identified .
COMMENT:
In the clinical context, it appears likely there is a tiny minimally displaced fracture involving the right T11 superior articular facet. This appearance can on occasion relate to a secondary ossification centre. Both abnormalities can be symptomatic with pain , and this appears likely a relevant finding in the current clinical context.”
Dr Josey reported on an MRI scan of Mr Riley’s thoracic spine and right shoulder on 22 June 2021. In respect of the thoracic spine he said:
“A small central protrusion is present at T8-T9, indenting the thecal sac with contact upon the cord. No abnormal signal within the cord or canal stenosis.
Multiple level endplate irregularity and mild wedging of the mid and lower thoracic segments is present, consistent with a childhood osteochondrosis such as Schuerman's [sic].
Endplate oedema can be seen at the base of anterior endplate marginal osteophytes, felt to be degenerative in nature rather than reflective of an axial spondyloarthropathy although please review the presentation and biochemistry. …
IMPRESSION:
MRI features are consistent with Schuerman's along with a small central protrusion.”
Dr Ferch said in a report dated 27 June 2019 that the pain which Mr Riley experienced over this low thoracic spine had resolved. He said that he was “not certain” that the CT scan did represent a fracture and that it may simply be an associated blood vessel. He said that a bone scan would better evaluate if there was a bony injury.
Dr King did not describe any treatment of Mr Riley’s thoracic spine.
Dr Dias assessed 5% WPI in respect of Mr Riley’s thoracic spine. Dr Nair did not assess any permanent impairment because the MRI scan revealed “radiological stigmata of Scheuermann’s disease which is not a work-related entity.”
The thrust of the appeal is that the Medical Assessor should have made a deduction under s 323. The Medical Assessor acknowledged the presence of Schmorl’s nodes in Mr Riley’s thoracic spine but not the diagnosis of Scheuermann’s disease which the nodes indicate.
We agree that the radiological findings warranted a deduction, despite the lack of previous pain, for the reasons set out above with respect to Mr Riley’s cervical spine. This aspect of the appeal is academic. It would be difficult to state the extent of the contribution so that the presumption in s 323(2) applies. When a one-tenth deduction is applied to 5%, the result is 4.5% which under paragraph 1.26 of the Guidelines is rounded up to 5%.
Right upper extremity
The Medical Assessor noted that pain in and around his right shoulder was the major issue for Mr Riley. On examination the Medical Assessor observed:
“Shoulder Movements. Movement of the left shoulder was completely normal. On the right side there was very gross restriction of movement, with the grossest restriction that has been described so far in comparison with any of the reports in the clinical file.”
The Medical Assessor set out his findings in respect of upper extremity impairment (UEI):
AMA 5 REFS MOVEMENT RIGHT % RIGHT UEI LEFT % LEFT UEI P476
F16-40Flexion 20° 11 180° 0 Extension 10° 2 50° 0 P477
F16-43Abduction 20° 7 180° 0 Adduction 10° 1 50° 0 P479
F16-46Internal rotation 20° 4 80° 0 External rotation 20° 1 80° 0 Subtotals 26 0
The Medical Assessor said that 26% UEI converts to 16% WPI and:
“(Note: Attention is drawn to the extreme dysfunction which was demonstrated by Mr Riley at this assessment. Although the patho-physiology is not all that severe, the effect that this has had on Mr Riley by way of the development of a chronic pain condition results in very gross dysfunction of the neck, upper back and right shoulder complex. This is reflected in the radiculopathy demonstrated from the cervical spine and the extraordinarily restricted range of movement of the right shoulder complex.)”
In respect of Dr Dias’ report the Medical Assessor said:
“Specialist Occupational Physician, Dr Utham Dias did demonstrate some restriction of movement of the right shoulder, although nowhere near as much restriction as was demonstrated at this assessment. His report was on 18/11/21, which is getting on for nearly a year ago.”
Dr Lewis reported on a right shoulder X-ray and ultrasound on 17 May 2019. He said:
“FINDINGS:
No significant bone or joint abnormality is visualised on the plain radiograph.
On subsequent ultrasound evaluation, there is a small intrasubstance tear/delamination involving the mid supraspinatus fibres, measuring 5 x 6 x 1 mm.
The remaining of the supraspinatus is intact and sonographically normal.
The remaining right rotator cuff tendons are intact and sonographically normal.There is mild thickening of subacromial/subdeltoid bursa, but there was no definite evidence of impingement on abduction.
COMMENT:
Small intrasubstance tear/delamination involving the mid supraspinatus tendon . Mild subacromial bursitis, but no definite evidence of impingement.”
On 31 May 2019 Ms Said, exercise physiologist, performed an initial assessment. She noted that the range of motion of Mr Riley’s right shoulder was equivalent to that of his left and was normal.
On 18 July 2019 Dr Ferch said that the cervical spine MRI scan did not explain Mr Riley’s right upper limb symptoms and said that it was possible that he had a compromise to a nerve outside his spine. He recommended nerve conduction studies. As noted above the nerve conduction studies did not show significant peripheral nerve entrapment.
On 29 August 2019 Dr Ferch said that the nerve conduction studies were normal, that Mr Riley’s condition had improved, that his right upper limb symptoms had resolved and he was keen to return to work.
A final report by Ms Said dated 18 September 2019 also showed a normal and symmetrical range of motion of Mr Riley’s shoulders.
Mr Riley returned to work in late 2019 and continued to work until about April 2020. He said in his statement dated that he did not allege that he suffered further injury after he returned to work but that it aggravated the problems he already had.
An MRI scan of the right shoulder was reported by Dr Josey on 22 June 2021. He said:
“HISTORY:
Right scapular pain
FINDINGS:
The acromioclavicular joint demonstrates a mild synovitis, non-specific.
The bursa and rotator cuff are normal.
The labrum is intact.
The scapula is incompletely visualised, the superior lateral aspect of the scapula remain normal.IMPRESSION:
Normal MRI assessment of the right shoulder. The scapula is incompletely visualised.”
Dr Dias diagnosed chronic right shoulder impingement syndrome, secondary to an acute partial thickness supraspinatus tear with associated chronic subacromial bursitis. He used the range of motion impairment estimates in AMA 5 to assess 14% UEI and 8% WPI.
Dr Nair did not assess any permanent impairment of Mr Riley’s right shoulder because there was no pathoanatomy identified on the MRI scan.
The Guidelines provide in paragraph 2.2 that:
“Evaluation of anatomical impairment forms the basis for upper extremity impairment (UEI) assessment. The rating reflects the degree of impairment and its impact on the ability of the person to perform ADL. There can be clinical conditions where evaluation of impairment may be difficult. Such conditions are evaluated by their effect on function of the upper extremity, or, if all else fails, by analogy with other impairments that have similar effects on upper limb function.”
Paragraph 2.3 says that the claimant will have a defined diagnosis that can be confirmed by examination. The method of assessing the range of motion is set out in paragraph 2.5.
The Medical Assessor’s findings on examination were inconsistent with those of other examiners over time and with the investigations. That should have alerted the Medical Assessor to confirm his results by repeated testing and to say that he had done so. That was particularly important where his diagnosis was imprecise, being a chronic pain condition which falls well short of complex regional pain syndrome. The Medical Assessor was required in those circumstances to apply paragraph 1.36 and he did not do so.
The range of motion which Mr Riley demonstrated to Dr Burns was even less. It was inconsistent with the pathology in his shoulder. Dr Burns observed that Mr Riley held his right arm stiffly during the formal examination but appeared to have some reduced movement at other times during the consultation.
Because of that inconsistency, the range of motion cannot be used to assess Mr Riley’s right upper extremity. Paragraph 2.5 of the Guidelines provides:
“If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Introduction.
If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
Based on Dr Burns’ findings, we consider that the appropriate analogy is impingement as set out in paragraph 2.16:
“Diagnosis of impingement is made on the basis of positive findings on appropriate provocative testing and is only to apply where there is no loss of range of motion. Symptoms must have been present for at least 12 months. An impairment rating of 3% UEI or 2% WPI shall apply.”
Mr Riley told Dr Burns that his new general practitioner had sought approval for further investigations to determine if he suffered adhesive capsulitis or carpal tunnel syndrome. That information requires us to determine if Mr Riley’s condition has reached maximum medical improvement. While it is possible that disuse of Mr Riley’s right shoulder may have led to the development of adhesive capsulitis, we do not consider that probable because of the time that has elapsed since the injury. We consider that it is unlikely that he has carpal tunnel syndrome as a consequence of his work related injuries, noting that nerve conduction studies in 2019 were normal.
For these reasons, we have determined that the MAC issued on 8 November 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-W2560/22 |
| Appellant: | Vision Pools Pty Ltd |
| Respondent: | Jasson Riley |
| Date of Determination: | 25 April 2023 |
| Examination Conducted By: | Assessor Mark Burns |
| Date of Examination: Attendance: | 19 April 2023 Jasson Riley |
The workers medical history, where it differs from previous records.
Mr Riley confirmed the history taken by Assessor Anderson.
Additional history since the original Medical Assessment Certificate was performed.
Mr Riley stated that approximately 5 months ago he commenced seeing a new General Practitioner, Dr Cummings. The new doctor has reviewed his history and carried out a physical examination. He reported that the doctor has requested further investigations and possible treatment from the Insurance Company. He is concerned that Mr Riley has developed severe right Adhesive Capsulitis (frozen shoulder) as well as right Carpal Tunnel Syndrome. Mr Riley believes that the recommended tests included Nerve Conduction Studies and an MRI scan of the right shoulder. The request was sent to the Insurance Company in early 2023 and to date there has been no formal reply. Mr Riley stated that in a verbal discussion with the Case Manager, that he was told that the Insurance Company was awaiting the outcome of the current appeal.
Mr Riley reported no further investigations or treatment since he was assessed by Assessor Anderson.
Current Symptoms:
Cervical spine: He reported constant pain in the midline and to the right radiating into the area of the right trapezius muscle. The pain radiates down the right arm to the right hand to the index finger. He has pins and needles in the first web space between the thumb and index finger. This is also constant but worse with activity. He reported minimal movement in the cervical spine in flexion and extension. Rotation to the left is more restricted than to the right.
Thoracic spine: He stated that the pain in his mid-back has deteriorated over time. He stated that he believed that this was associated with a fracture of the right T11 superior articular facet. I noted that this was initially reported from a CT scan of the thoracic spine on 10 April 2019.
Right Upper Extremity (shoulder): He stated that there has been a marked deterioration in his right shoulder with constant generalised pain and marked loss of range of movement.
Current Treatment:
He is seeing Dr Cummings as required. He continues with anti-inflammatories and analgesics as required. He is not seeing any medical specialists or having formalised physiotherapy.
Findings on clinical examination
Mr Riley was 180cm tall and weighed 82kgs. He was noted to walk with a normal gait but had his right arm held tightly into his body. His neck movements were also variable between being held rigidly to having reasonable if reduced movement.
Cervical spine: The neck was held slightly tilted to the right side. Tenderness was noted over the right paravertebral and trapezius muscles. Mild tightness was noted in the right paravertebral muscles and the right trapezius muscle. Flexion varied from to 5º to 25º, whilst extension was 0º (no attempted movement due to reports of severe pain). Rotation to the right was 20º and to the left 0º. Lateral flexion to the right was 10º and to the left 0º. It was noted that during the history taking that his neck movement was slightly better in all planes.
Neurological examination of both upper limbs revealed normal tone and reflexes bilaterally. There was normal power in the left arm but globally decreased power in the right arm reportedly due to severe pain. Sensation was reported as being decreased in the right thumb, index, and middle fingers. Two-point discrimination in the fingers and thumbs of both hands was normal (at 6mm). Tinel’s signs and Phalen’s test for Carpal Tunnel Syndrome were not attempted in the right arm due to reports of generalised pain.
The circumference of the right upper arm was 30.5cm and equal to the left side. The circumference of the right forearm was 28.5cm and equal to the left side.
Thoracic spine: Tenderness was reported in a patchy distribution in the mid-line from T4 to T12. Stiffness and muscle guarding was present in the entire thoracic spine. Rotation to the left was 20º and was symmetrical to the right. There was no evidence of sensory change in either side of the chest wall.
Right Upper extremity (shoulder): There was no tenderness over the left shoulder but global tenderness over the right shoulder. Active range of movement in both shoulders was measured on several occasion by a goniometer.
Shoulder Movements Active ROM Measured
RIGHTActive ROM Measured
LEFTFlexion 0° 150° Extension 0° 60° Adduction Not measurable 10° Abduction 0° 130° Internal Rotation Not measurable 50° External Rotation Not measurable 80°
Due to reports of severe pain in the right shoulder he stated that he could not move the shoulder in any direction. He continued to hold the right arm tightly to his chest during formal examination. It was noted that at other times during the consultation that he did relax the right shoulder and appeared to have some reduced movement.
He reported no previous injury or condition involving the left shoulder. He stated that the decreased range of movement in his left shoulder was also due to his right shoulder pain.
Results of any additional investigations since the original Medical Assessment Certificate
Mr Riley reported no new investigations.
Signed: Assessor Mark Burns
Date: 25 April 2023
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2560/22 |
Applicant: | Jasson Riley |
Respondent: | Vision Pools Pty 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 Dr Tim 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 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) |
| Cervical spine | 26.2.2019 | Ch 4, p 24 | Ch 15 p 392, T15-05 | 17 | 1/10th | 15% |
| Thoracic spine | 26.2.2019 | Ch 4, p 24 | Ch 15 p 389, T15-04 | 5 | 1/10th | 5% |
| Right upper extremity (shoulder) | 26.2.2019 | Ch 2, p 10 | Ch 16 | 2% | 0 | 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 21% | |||||
0
5
0