Wangarang Industries Limited v Dreyer
[2022] NSWPICMP 271
•11 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wangarang Industries Limited v Dreyer [2022] NSWPICMP 271 |
APPELLANT: | Wangarang Industries Limited |
RESPONDENT: | Craig Dreyer |
| APPEAL PANEL: | Member Catherine McDonald Medical Assessor Dr James Bodel Medical Assessor Dr David Crocker |
| DATE OF DECISION: | 11 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Upper extremity impairment; Medical Assessor recorded decreased range of movement in contralateral shoulder but did not make deduction; NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, reissued 1 March 2021 paragraph 2.20; statement re-examination not admitted; Petrovic v BC Serv No 14 Pty Limited and Lukacevic v Coates Hire Operations Pty Ltd considered; Held – 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 8 April 2022 Wangarang Industries Limited (Wangarang) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 March 2022.
Wangarang relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, the ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 2018.
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, reissued 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 Dreyer was employed by Wangarang as a weighbridge operator. He suffered an injury to his cervical spine and right shoulder on 9 July 2018 while closing a set of cast iron gates.
The Medical Assessor assessed 17% whole person impairment (WPI) being 6% in respect of Mr Dreyer’s cervical spine and 12% in respect of his right upper extremity. He did not assess any permanent impairment as a result of scarring.
The sole ground of appeal is the failure by the Medical Assessor to deduct impairment measured in Mr Dreyer’s uninjured left shoulder.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
Fresh evidence
Mr Dreyer seeks to rely on a statement dated 21 April 2022 with respect to the condition of his left shoulder on the day of the Medical Assessor’s examination and the reasons for it.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
In submissions prepared by Mr Goodridge of counsel, Mr Dreyer submitted that the evidence was relevant because the statement was relevant to explain any impaired range of movement of his left shoulder.
We note that s 352(6) of the 1998 Act, on which Mr Goodridge relied to support the application to adduce fresh evidence, does not apply to a medical appeal but the principles for admission under s 328(3) are relevantly the same, as are those relevant to s 327(3)(b). The statement is not fresh evidence and the admission of a statement about what happened at the examination is precluded by Court of Appeal and Supreme Court authority.
Because Mr Dreyer was replying to the appeal, Wangarang did not make any submissions about it.
Hoeben J said in Petrovic v BC Serv No 14 Pty Limited[1]:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs 327(3)(b).
It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
[1] [2007] NSWSC 1156 at [31].
His Honour noted that if statements going to the way in which the medical assessment was conducted were additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal.”
In Lukacevic v Coates Hire Operations Pty Limited[2] (Lukacevic), Hodgson JA said:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”[3]
[2] [2011] NSWCA 112.
[3] At [78].
Handley JA said that evidence of what took place at the examination was additional rather than fresh evidence.[4] His Honour said:
“The Panel's reasons for refusing to receive the new evidence … referred to the importance of finality in litigation, that procedural fairness for the respondent would entitle it to seek a response from the AMS, and the fact that the issues raised were ‘not contemplated as part of the appeal mechanism’. In my judgment these were relevant considerations in the exercise of the Panel's discretion, and it cannot possibly be said that its decision was irrational.”
[4] At [100].
In Phillips v JW Williamson and RW Williamson t/s Williamson Bros[5] Schmidt J contrasted the factual dispute in Lukacevic about what took place at the examination with the availability of additional probative medical material which did not exist at the time of the examination by the Approved Medical Specialist (AMS), on which the worker sought to rely to demonstrate errors by the AMS.
[5] [2016] NSWSC 1681.
The AMS was required by paragraph 1.6 of the Guidelines to examine Mr Dreyer as he presented on the day of the examination and to record his findings. Evidence seeking to explain the reason for any limitation of movement is not relevant to an appeal with respect to the assessment of impairment as a result of what the Medical Assessor observed on the day.
We have determined that the statement should not be received on the appeal.
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.
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 very short submissions, Wangarang submitted that the Medical Assessor failed to deduct impairment in the uninjured contralateral shoulder as required by paragraph 2.20 of the Guidelines. It submitted that the Medical Assessor was required to deduct 5% upper extremity impairment (UEI) to reflect the loss of the range of motion he observed in Mr Dreyer’s left arm.
The submissions are terse and would have been easier for Mr Dreyer to understand if the calculations underpinning them had been spelt out.
Mr Goodridge said that Wangarang offered no evidence to support its contention that Mr Dreyer’s left shoulder movement had not been affected by the injury. He said that Mr Dreyer did not allege that there was an assessable rateable impairment in his left shoulder but that did not mean that there was no injury and/or intermittent impairment.
He said that Mr Dreyer had provided a statement about the intermittent nature of the left shoulder symptoms resulting from his injury and said that Dr Patrick, qualified on his behalf, and Dr Doig, qualified for Wangarang observed no restriction of left shoulder movement.
Mr Goodridge said that Wangarang had not raised any dispute about the issue now raised so that there was no reason for the Medical Assessor to consider it. As a result, Mr Dreyer had been denied natural justice.
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[6] 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.
[6] [2006] NSWCA 284.
There is no dispute about the assessments of the cervical spine and the right upper extremity made by the Medical Assessor.
Before considering the MAC, it is relevant to review the evidence which was provided to the Medical Assessor and to note that it is scant.
Mr Dreyer’s evidence
Mr Dreyer’s original statement is remarkably short and of no assistance to anyone assessing the claim.
There is no evidence from Mr Dreyer’s treating doctors in the file, describing the treatment he has undergone - particularly the surgery. The absence of that evidence also makes assessment of the claim more difficult.
Mr Dreyer claimed compensation in respect of his cervical spine and his right upper extremity, resulting from a shoulder injury. Despite Mr Goodridge’s submissions that he suffered intermittent left shoulder pain, Mr Dreyer did not allege that he suffered an injury to, or consequential condition in his left shoulder.
Mr Dreyer’s solicitors referred him to Dr Patrick who reported on 29 June 2021. Dr Patrick found that the range of motion of his left shoulder was full and free. He was not shown any imaging nor did he see the operation report from the surgery Mr Dreyer underwent in 2018.
Dr Patrick said that there might have been a pre-existing condition because of Mr Dreyer’s age and the fact that he had driven a truck for 30 years. He said that the condition was “to some extent an aggravation, acceleration, and/or exacerbation of some pre-existing condition or disease”. Dr Patrick said that Mr Dreyer also suffered an injury to his cervical spine which had been overlooked.
Dr Patrick assessed Mr Dreyer in DRE Cervical Category III, allowing 15% WPI and making a deduction under s 323 of one-tenth. He assessed 17% WPI in respect of Mr Dreyer’s right shoulder and deducted one-tenth under s 323. Dr Patrick assessed 27% WPI.
Dr Doig
Wangarang referred Mr Dreyer to Dr Doig who reported on 2 December 2021. He recorded an injury to Mr Dreyer’s right shoulder and noted that he underwent an arthroscopic repair of a SLAP lesion in September 2018. Mr Dreyer told Dr Doig that he told his general practitioner about neck pain after the injury. He did not take any imaging to the examination.
Dr Doig said that Mr Dreyer did not display any restriction of movement in the left shoulder. He diagnosed a soft tissue injury to the right shoulder and trapezius muscle with damage to the labrum and a poor outcome from surgery.
Dr Doig assessed Mr Dreyer in DRE cervical category II, allowing 6% WPI. He assessed 14% UEI in respect of the right shoulder which converts to 8% WPI and a total assessment of 14% WPI.
The MAC
The Medical Assessor noted that Mr Dreyer felt a pop in his shoulder at the time of the injury and that imaging showed a labral tear. He said that Mr Dreyer noticed neck pain a couple of weeks after the injury. At the time of the examination, Mr Dreyer complained of intermittent pain and a clicking sensation in the right side of his neck and pain over the anterior and lateral right shoulder.
The Medical Assessor set out his findings on examination and recorded them in a table:
MOVEMENT
RIGHT
LEFT
Flexion
90º
170º
Extension
0º
30º
Abduction
90º
170º
Adduction
10º
40º
Internal rotation
20º
40º
External rotation
0º
90º
The Medical Assessor did not make any comment about those findings.
Like Dr Patrick and Dr Doig, the Medical Assessor was not provided with any investigations. The Medical Assessor said that Mr Dreyer sustained an injury to his right shoulder and subsequently developed pain in his neck. He did not make a formal diagnosis.
The Medical Assessor explained his calculations:
“Range of motion in the shoulder is described above. According to AMA-5, page 476 Figure 16-40, page 477 Figure 16-43 and page 479 Figure 16-46, an upper extremity impairment of 20% exists on the basis of restriction of range of motion. According to Table 16-3, this converts to 12% whole person impairment.
For asymmetric range of motion in the cervical spine, I assess DRE Category II according to AMA-5, page 392, Table 15-5 (5% whole person impairment). 1% is added according to SIRA Guidelines page 28, paragraph 4.34 for restrictions of activities of daily living.
The arthroscopic portals are well healed and barely visible. They meet the criteria for 0% WPI in SIRA Guidelines page 74, Table 14.1.”
The Medical Assessor explained where he agreed with and differed from the assessments of Drs Patrick and Doig.
Consideration
Even though the Medical Assessor was asked to assess only Mr Dreyer’s right arm and cervical spine, he was required to do it in accordance with the Guidelines. He was required to assess Mr Dreyer as he presented on the day of the examination.
The principles for evaluating the abnormal range of motion of a joint are set out in paragraph 16.4 of AMA 5. They include:
“In assessing motion, the examiner should first observe what an individual can and cannot do by asking him or her to move each joint of the extremity, from the shoulder down, through its full range of motion. Both extremities should be compared. Individual joints are then evaluated separately.”[7]
And
“The measurements reported in the impairment tables and pie charts reflect the accepted average active range(s) of motion for each joint. However, certain people can have either lesser or greater joint flexibility than average. It is therefore most important to always compare measurements of the relevant joint(s) in both extremities.
If a contralateral ‘normal’ joint has a less than average mobility, the impairment value(s) corresponding to the uninvolved joint can serve as a baseline and are subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the report.”[8] (Emphasis in original.)
[7] Page 451.
[8] At p 453.
The method of assessment due to abnormal shoulder motion refers an assessor to Figures 16-40, 16-43 and 16-46. Those figures set out the normal range of motion of an uninjured shoulder joint. The Medical Assessor had regard to all of those.
The Guidelines provide that they prevail over AMA 5 where there is any difference.[9] The second quote in [51] above suggests that an assessor has a discretion as to whether to use the uninjured joint as a baseline. The Guidelines remove that discretion, providing in paragraph 2.20:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543).”
[9] Paragraph 1.1.
Paragraph 2.20 required the Medical Assessor to measure the range of movement for each of Mr Dreyer’s shoulders and to deduct any impairment observed in his left shoulder from the assessment for the right. He failed to do that, which is a demonstrable error. In light of the very clear statement in paragraph 2.20, it cannot be said that Mr Dreyer was denied natural justice, as Mr Goodridge contended, by the correct application of the Guidelines.
While both Dr Doig and Dr Patrick observed a normal range of motion in Mr Dreyer’s left shoulder, the Medical Assessor did not. His findings show a rateable impairment of 1% UEI for each of flexion and extension and no impairment for abduction, adduction and internal rotation. There is a marked impairment of 3% UEI on internal rotation. Those findings when added total 5% UEI and are significant.
The Medical Assessor assessed 20% UEI in respect of Mr Dreyer’s right upper extremity. He was required by the Guidelines to deduct 5% in respect of his left upper extremity. The resulting UEI is 15% which converts under Table 16-3 of AMA 5 to 9% WPI.
When 9% WPI in respect of Mr Dreyer’s right upper extremity is combined with 6% in respect of Mr Dreyer’s cervical spine, his resulting WPI is 14%.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 March 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 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 Robert 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) |
| Cervical Spine | 9 July 2018 | Pages 27 & 28, paras 4.27 and 4.28 | Page 392 Table 15-5 | 6% | 0 | 6% |
| Right upper extremity | 9 July 2018 | Chapter 2 pp 10 to 12, para 2.20 | Page 476 Fig 16-40 Page 477 Fig 16-43 Page 479 Fig 16-46 Page 439 Table 16-3 | 9% | 0 | 9% |
| Scarring TEMSKI | 9 July 2018 | Chapter 14 Table 14.1 | 0% | 0 | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
Catherine McDonald
Member
Dr James Bodel
Medical Assessor
Dr David Crocker
Medical Assessor
11 July 2022
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