Ward v RSL Lifecare Limited
[2022] NSWPICMP 89
•19 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ward v RSL Lifecare Limited [2022] NSWPICMP 89 |
| APPELLANT: | Dorothy Ward |
| RESPONDENT: | RSL Lifecare Limited |
| APPEAL PANEL: | Member John Wynyard Dr Gregory McGroder Dr John Brian Stephenson |
| DATE OF DECISION: | 19 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of nil per cent for referral regarding injury to cervical spine; whether Medical Assessor (MA) entitled to ignore terms of referral and find no injury; failure by parties to ensure terms of consent order reflected their agreement; Held- parties agreed at the teleconference that the referral was to describe the cervical spine as a ‘consequential condition’ but consent orders and referral described an ‘injury’ instead; finding by MA that asymmetrical range of motion in the cervical spine not assessable contrary to terms of referral; settled law that an MA is confined by the terms of the referral, subject to when it does not reflect the agreement between the parties as to the dispute; Skates applied; Medical Assessment Certificate revoked and 7% whole person impairment added for impairment to the cervical spine. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 December 2021 Dorothy Ward, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 25 November 2021.
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,
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 2 September 2021 the delegate of the President referred this matter to the MA for a WPI assessment caused by injury to the left upper extremity (shoulder) and cervical spine (neck) on 24 October 2017. This referral followed consent orders issued on 30 August 2021.
We note in passing that the pleadings in the Application to Resolve a Dispute (ARD) form pleaded an alternative cause of action by alleging that the condition of her cervical spine was consequential to her shoulder injury, as she was required to use a shoulder sling which exerted pressure on her cervical spine. It was also alleged that the cervical condition was consequential “through [Ms Ward’s] cervical spine perpetuated through the favouring of her left upper extremity” [sic].
The appellant was employed as an occupation assistant in nursing with the respondent RSL Lifecare Limited. On the date of injury Ms Ward sustained an injury to her left shoulder whilst attending a patient in the Dementia Ward.
She came to an arthroscopy with Dr Kwa on 21 March 2019 and underwent a subacromial decompression, excision of the distal clavicle and biceps tenodesis. Rehabilitation was compromised due to the COVID 19 restrictions, and she developed a frozen shoulder.
The MA found a total of 12% WPI in respect of the injury to the left upper extremity, and 0% WPI for injury to the cervical spine.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant did not seek to be re-examined by a MA who was a member of the Appeal Panel.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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. 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.
The ground of appeal was that the MA had fallen into error by making a determination about the causation in respect of the cervical spine injury. This error had caused the MA to make further errors in determining a DRE I category for his assessment of the cervical spine and that he had failed to give an adequate explanation for his rejection of the cervical spine injury.
The MAC
The MA did not take any history regarding the cervical spine. He noted a restriction in the rotation of Ms Ward’s neck to the right and stated under “present treatment”:[1]
“If she rotates her neck to the right, her range of motion is restricted by pain anteriorally over the left shoulder”.
[1] Appeal papers p 25.
On formal examination the MA found that rotation to the right was restricted at around 60% “due to pain anteriorally over the left shoulder”.[2]
[2] Appeal papers p 26.
Again, in his summary at [7] the MA noted restriction of rotation in the neck, but said it was “… consequent to pain in the shoulder rather than due to a primary pathology in the neck.”
In explaining his calculations at [10b] the MA said:[3]
“With respect to the cervical spine, there is restriction of rotation to the right but this is on the basis of pain anterior to the left shoulder rather than pain in the neck. Otherwise, according to AMA 5 page 392 Table 15.5, there are no significant clinical findings and no muscular guarding in the neck, no documentable neurological impairment, no loss of motion segment integrity and no other indication of impairment related to an injury or illness. Hence, I assess DRE Cervical Category I (0% whole person impairment).”
[3] Appeal papers p 28.
The MA noted Dr Bodel’s opinion that the cervical spine condition warranted an assessment of 7% WPI. The MA stated at [10c] “for reasons given above, I have not assessed with respect to the cervical spine, whereas Dr Bodel has”.
The MA certified a WPI of 12% for the injury to the shoulder, but made a nil finding in respect of the cervical spine.
SUBMISSIONS
The appellant
The appellant referred to the terms of the referral and the consent orders under which the referral was issued. It was submitted that the pleadings and the substance of the medical evidence confirm that Ms Ward’s cervical spine injury was consequential in nature.
The appellant referred to Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[4]. Accordingly, the appellant submitted the MA went outside the scope of the referral in his findings that any restriction in the neck was due to the pathology in Ms Ward’s shoulder.
[4] [2014] NSWCA 264 at [24].
The appellant submitted that “it is well established that any injury consequent to an accepted work injury does not turn or require substantiation of a pathological change.”
We were referred to Dunn v Hunter New England Area Health Service[5] as an example of an earlier Appeal Panel revoking a MAC in which a similar error as to causation had been made.
[5] [2008] NSWWCC MA 118.
We were referred to further authorities in that regard.[6]
[6] Allen v Northern Rivers [2008] NSWWCC MA 266; Underwood v Shellwood Pty Ltd [2021] NSWPIC MP 25.
The appellant submitted that in the absence of competing evidence, Dr Bodel’s assessment that Ms Ward was suffering a DRE cervical category II and associated restrictions in her activities of daily living, should be accepted.
The respondent
The respondent conceded that during the teleconference of “16 December 2021” (we note that it was in fact 30 August 2021), it was agreed that the matter be referred in relation to both a left shoulder injury and a consequential cervical spine condition.
The respondent emphasised this submission a number of times, submitting at one stage that although the appellant had submitted that “the Commission has determined that the appellant worker has suffered injury to her cervical spine”, no such determination had been made. This was incorrect, as this was precisely the determination reflected in the Personal Injury Commission’s (Commission) consent orders of 30 August 2021, as we have indicated.
The respondent argued that it had not been shown that incorrect criteria had been applied by the MA in making his determination, neither had a demonstrable error been made. This was because, as we understood the submission, the respondent maintained that the MA was entitled to form his own opinion and diagnosis in respect of the matters referred to him.
Further, the MA was entitled to find that the restriction of rotation was consequent to pain in the shoulder, but make no assessment. The respondent alleged that the appellant had been relying on the Table of Disabilities and no error had been made in accordance with the application of AMA 5. The respondent did not develop this argument and, with respect, we were unable to follow it.
Discussion
The appeal must be allowed.
This situation, as can be seen from the authorities referred to by the appellant, is not novel, and has been finally determined by the Court of Appeal in Skates v Hills Industries Ltd[7].
[7] [2021] NSWCA 142 (Skates) per Basten JA at [35]; Leeming JA at [49]; McCallum JA at [82].
In Skates the MA assessed an injury to the left wrist that had inadvertently been omitted from the referral. The Appeal Panel revoked the assessment because the left wrist had not been included, saying it was “settled law that an AMS is confined by the terms of the referral.” In that case, the decision was revoked, as it was found that the terms of the referral did not reflect the agreement of the parties as to the actual dispute between them. The Appeal Panel ought to have referred the matter under those circumstances to the Commission for a correct referral to issue, the Court held.
There is no such requirement in this case, and we would observe, with respect, that had the parties taken more care to ensure that the consent orders were drafted in accordance with their intentions, this issue might never have been raised.
The concession made by the respondent was appropriate and reflects the intention of the parties, which was not reflected in the referral. We accept that the nature of the dispute was discussed and agreed at teleconference on 30 August 2021. Accordingly there is no need to refer the matter back to the Commission, as the Appeal Panel can determine the dispute on that expression of the parties’ agreement.
We would also observe that at law there is no distinction in a claimant’s entitlement to receive compensation whether the claim be described as an injury as defined in s 4 of the Workers Compensation Act 1987 (1987 Act), or as a consequential condition which, although escaping the confines of the definition of “injury,” is nonetheless “related to” that injury.[8]
[8] See eg Bouchmouni, Bakhos Matta T/as Western Red Services [2013] NSWWCCPD 4.
The opinion of the MA was quite clear, and in keeping with the intention of the parties – that the appellant had suffered a consequential condition in the cervical spine as a result of her left shoulder injury. The MA was also legally correct to find that there had been no actual injury to the cervical spine. However, whether the MA disagreed or not with the description of the condition of the cervical spine, his obligation was to accept the terms of the referral (that it was an injury) and apply the relevant guidelines to assess any impairment arising therefrom.
The MA found asymmetry of movement but declined to assess it His finding that the restriction in motion was consequent to pain in the shoulder rather than due to a primary pathology in the neck was the basis of the respondent’s acceptance of liability for the claim, and the agreed terms of the referral. It is unfortunate that neither of the parties corrected the referral when, as is Commission practice, the draft terms were circulated prior to the assessment to both parties. Basten JA said of such conduct in Skates at [36]:
“The failure of both parties to raise with the Registrar the error … is inexplicable…. In short, there were numerous opportunities for both parties to raise the issues which have now become the subject of ongoing disputation in the courts. The fact that neither party did so in what is a relatively small claim, would provide a sound reason for refusing leave to appeal …”
The MA’s finding that there was a 60% restriction of rotation to the right in the neck is supported by the appellant’s medico-legal expert, Dr James Bodel on 28 October 2020,[9] who found there was asymmetry of movement and guarding commensurate a DRE II finding. Dr Bodel also found that the cervical spine condition entitled the appellant to an allowance for the restriction in her activities of daily living.
[9] Appeal papers p 87.
The refusal by the MA to apply the terms of the referral was a demonstrable error, and the MAC must be revoked. As the MA’s findings were consistent with those of Dr Bodel, we accept that a DREII rating was assessable.
Ms Ward described the effect of her condition, which we accept, in her statement of 27 February 2021.[10] We accordingly agree with the assessment of Dr Bodel that a further 2% should be added for those restrictions. Accordingly an assessment of 7% WPI is made regarding the condition of the cervical spine.
[10] Appeal papers p 42 from [37]
For these reasons, the Appeal Panel has determined that the MAC issued on 25 November 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 Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Rob Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | 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) |
| Left upper extremity | 24/10/2017 | Page 12 Para 2.14 | 13% | 1/10th | 12% | |
| Cervical spine | 24/10/2017 | Page 392 Table 15.5 | 7% | 7% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 18% | |||||
John Wynyard
Member
Dr Gregory McGroder
Medical Assessor
Dr John Brian Stephenson
Medical Assessor
19 April 2022
0
4
0