Waverley Council v Mahony
[2024] NSWPICMP 764
•7 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Waverley Council v Mahony [2024] NSWPICMP 764 |
| APPELLANT: | Waverley Council |
| RESPONDENT: | Leonard Charles Mahony |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Todd Gothelf |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 7 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim that Medical Assessor (MA) had found a brachial plexus injury that had not been referred to him; whether finding consistent with terms of referral; whether accurate diagnosis of that injury on the evidence justified MA’s action; whether reasons sufficient; Held – brachial plexus injury separate and distinct injury and had not been agreed as part of the medical dispute; Skates Skates v Hill Industries Ltd applied; applicant re-examined to confirm measurement of range of motion; whether diagnosis accurate irrelevant as no referral made; MA reasoning incorrect, as he assessed an injury not referred to him; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 May 2024 Waverley Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 April 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 (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 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 18 January 2024, this matter was referred to the Medical Assessor in respect of assessments pertaining to two injuries.
The first injury occurred on 15 March 2018 and the Medical Assessor was asked to assess the WPI caused by injury to the left lower extremity (knee) and the right lower extremity (knee).
The second injury occurred on 19 December 2019. The Medical Assessor was asked to assess the WPI caused by injury to the left upper extremity (shoulder and elbow).
The referral followed consent orders being made by Member Jacqueline Snell on
16 January 2024.
15 March 2018
Mr Mahony was employed as a labourer with the appellant Council. On this day he stepped into a pothole and injured his left knee. Four or five months following that injury there was an onset of problems with the right knee and he eventually came to bilateral hemi-arthroplasties of his knees, the left knee in February 2020 and the right knee in August 2021.
19 December 2019
On this date Mr Mahony experienced pain in the left side of his neck and his left shoulder and elbow region as he operated a pull start on a large water tank. As he pulled, the starter jammed and he also struck his left elbow on the car he was then driving.
He had suffered with problems to his left upper extremity since that time and on
3 November 2020 came to a rotator cuff repair and biceps tendinosis, followed by an ulnar nerve transposition on 16 November 2020.
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.
The appellant employer did not request that Mr Mahony be re-examined by a member of the Panel but the Panel required such a re-examination after establishing that the Medical Assessor had fallen into error, as related below.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Medical Assessor Gothelf of the Appeal Panel conducted an examination of the worker on
20 September 2024 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions 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 appellant employer appeals against the assessment relating to the injury dated
19 December 2019, in respect of which a 17% WPI was certified.
The MAC
With regard to the left upper extremity the Medical Assessor noted that the current symptoms complained of by Mr Mahony were discomfort in the whole of the left shoulder and the trapezius area down to the base of his neck, with symptoms extending all the way down his left arm and into all of the digits of his left hand. The several operations he had undergone had not helped and his symptoms were the same as they had been from the beginning, being constant and ranging between 5 – 8/10 on the pain scale.
In considering previous injuries or conditions relevantly the Medical Assessor noted that there had been problems with the right shoulder for which surgery was carried out and “there was also noted to be discomfort in his left shoulder region back in 2004/2005”.[1]
[1] Appeal papers page 19.
On examination the Medical Assessor said:
“He shows restriction of cervical movement in all directions and has a satisfactory range of left shoulder movement with flexion and abduction to 170° and other movements are full. He does have significant residual restriction of left shoulder movements.
Left Shoulder Movements
Movement
Range
% Upper Extremity Impairment
Flexion
90°
6
Extension
30°
1
Abduction
90°
4
Adduction
0°
2
Internal
70°
1
External rotation
30°
1
Total
15%
Mr Mahony complains of considerable discomfort in the subacromial region and also in the supraclavicular region, and it was interesting to note that percussion in the supraclavicular region increases the paraesthesias in the digits of his left hand
….
Importantly, Mr Mahony has hypoaesthesia to pinprick of the whole of the left upper extremity in the distribution of the brachial plexus, apart from the inner medial aspect of his left upper arm which is supplied by the intercostobrachial nerve (T2). This sensory loss is distinct and present with repeated testing. There is also hypoaesthesia to pinprick in the distribution of the supraclavicular nerve on the left side, again with distinct cut-off points at the base of his neck, anteriorly over the anterior chest wall and posteriorly in relation to the spine of the scapula.
I note from his treating specialist’s reports that he found a subluxing ulnar nerve in relation to the medial aspect of his left elbow necessitating the transposition.”
At [7] the Medical Assessor stated:[2]
“As far as his left upper extremity is concerned, as noted there were previous problems with his left shoulder region, but Mr Mahony was apparently able to do full time normal duties despite any problems with his left shoulder region, and as noted he came to a rotator cuff repair of his left shoulder as well as an anterior transposition of his ulnar nerve on the left side.
In addition in my opinion Mr Mahony has evidence of sensory involvement of his brachial plexus on the left side as a result of a traction injury, and this is evidenced by the distinct hypoaesthesia to pinprick in the distribution of the brachial plexus with a positive Tinel’s sign in relation to the left supraclavicular region.”
[2] Appeal papers page 21.
The Medical Assessor noted under the templated “Consistency of presentation” heading:
“Mr Mahony’s clinical findings are consistent, but as noted there are problems in relation to his previous history.”[3]
[3] Appeal papers page 21.
The Medical Assessor gave the following reasons for his assessment of the left upper extremity at [10] of the MAC:
“10. REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment
…….
With regard to the left upper extremity, in my opinion Mr Mahony is entitled to 15% upper extremity impairment for the restricted range of shoulder movement(1) (see 10b).
Once again, I note from previous reports of his treating orthopaedic surgeon, Dr W Harper that Mr Mahony presented on 26 October 2004 with left shoulder pain but no specific injury, and that by December 2004 the left shoulder symptoms were disabling, and that in March 2005 he had a left shoulder labral repair as well as a SLAP repair, acromioplasty and AC joint excision.
In March 2006 he once again presented with significant discomfort in the left shoulder region.
In the circumstances, in my opinion a two-thirds deduction for the restricted range of shoulder movement is indicated, leaving Mr Mahony with 5% upper extremity impairment for the reduced range of shoulder movement.
As noted in my opinion he does have evidence of a brachial plexus traction injury on the left side which would have occurred on 19 December 2019. This was particularly a sensory involvement with a maximum of 100% upper extremity impairment... I have placed Mr Mahony in Grade IV with 25% sensory deficit.., giving a final total of 25% upper extremity impairment due to the brachial plexus involvement.
Combining these figures gives a total of 29% upper extremity impairment, which in turn equates with 17% WPI. In my opinion his neurological involvement at the present time is as a result of the brachial plexus lesion.
b. An explanation of my calculations (if applicable)
AMA Guides to the Evaluation of Permanent Impairment, 5th Edition:
(1) Pages 476 to 479, Figures 16-40 to 16-46.
(2) Page 490, Table 16-14.
(3) Page 482, Table 16-10.
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.
I have referred to the reports of Dr W Harper, orthopaedic surgeon, noting the previous problems with Mr Mahony’s left shoulder region and noting that on 29 June 2020 he presented with left shoulder and arm pain and numbness in the ulnar nerve distribution with a subluxing ulnar nerve, for which surgery was carried out. Dr Harper does not suggest figures of permanent impairment.
….
There are reports of Dr B Stephenson, orthopaedic surgeon of 25 August 2022 suggesting 18% upper extremity impairment for the left shoulder, 11% for the left elbow, 5% for the ulnar nerve, giving a total of 30% upper extremity impairment with 18% WPI. Dr Stephenson does not make any deduction for pre-existing condition.
As noted, this is close to the figure I have suggested for the left upper extremity but for different reasons.
….
There are reports of Dr J Bosanquet, orthopaedic surgeon of 3 January 2024, noting the tri-compartmental osteoarthritis of both knees which he feels has been aggravated, as well as developing a recurrent tear of his rotator cuff in the left shoulder which required surgery, and also requiring ulnar nerve transposition. ….
….
As far as the left upper extremity is concerned, [Dr Bosanquet] suggests a figure of 7% WPI, where I have suggested a figure of 17% WPI for the reasons given.”
At [11] the Medical Assessor said, regarding the s 323 deduction he made regarding the left upper extremity:
“Similarly, I have made deductions for the range of movement of the left shoulder, noting the long history of shoulder problems prior to his injury in December 2019 as well as the previous surgery to the left shoulder region.”
SUBMISSIONS
Ground 1
The appellant employer submitted that the diagnosis of a brachial plexus lesion regarding the injury to the left upper extremity was a demonstrable error.
It was submitted that this diagnosis had not been hitherto given and was not a part of the medical dispute that the appellant employer intended to refer for assessment. No claim had been made for this injury.
We were referred to Jaffarie v Quality Castings Pty Ltd[4] as authority for the proposition that the determination of the nature of the injury was a matter for the Personal Injury Commission (Commission).[5]
[4] [2014] NSWWCC PD 79.
[5] We note that the dicta of DP Roche was subsequently approved by the Court of Appeal in Jaffarie v Quality Casting Pty Ltd [2018] NSWCA 88 from [80]
The appellant employer submitted that the Medical Assessor's determination that an injury to the brachial plexus had occurred was beyond power and was not an accepted injury caused on 19 December 2019
Ground 2
The appellant employer submitted as an alternative that if ground 1 was unsuccessful, then the Medical Assessor did not give adequate reasons for finding that that the brachial plexus injury had been caused on 19 December 2019. As this condition had not hitherto been raised, the Medical Assessor was obliged to explain his findings further than merely indicating that it: “would have occurred on 19 December 2019.”
The appellant employer submitted that there had been an award in favour of the respondent in respect of a claim for injury to the cervical spine on 19 December 2019 and “we query what relationship the symptoms relating to the assessed brachial plexus nerve have with the cervical spine presentation which is now agreed not to be related to the claim".
The appellant employer also submitted that there was a demonstrable error in that the Medical Assessor did not have regard to the contemporaneous documentation regarding Mr Mahony’s clinical history.
The appellant employer referred to the observation by the Medical Assessor that Mr Mahony had not provided examiners with a proper history of his past injuries and conditions, including his qualified expert, Dr Stephenson.
This raised Mr Mahony’s credit, it was submitted, and the Medical Assessor ought to have given greater weight to the documentary evidence, rather than to the worker’s own version of events.
The evidence disclosed an extensive history of Mr Mahony’s many past injuries, which were to Mr Mahony’s entire body, it was claimed. His discussion of them in two short paragraphs was said to be inadequate.
Ground 3
Also, as an alternative to ground 2, the appellate employer submitted that inadequate reasons had been given for the conclusion reached by the Medical Assessor that the brachial plexus lesion had been caused by the work injury.
The respondent
Ground 1
Mr Mahony submitted that the diagnosis of brachial plexus lesion was consistent with the terms of the referral. We referred to page 487, table 16-47 of AMA 5 in that regard. It was submitted that the diagnosis was made on consideration of the mechanism of injury, (traction type injury), examination and particularly on “pin prick testing” and other tests.
It was submitted that the inclusion of an impairment to the left shoulder from a peripheral nerve was not a separate injury as asserted by the appellant employer and it was not excluded by Jaffarie, it was part of the injury.
Mr Mahony submitted that the diagnosis was not contradicted by other evidence.
Ground 2
The essence of the appellant employer’s submissions were that the Medical Assessor was being asked to make a credit finding in relation to Mr Mahony, which he was not entitled to do, Mr Mahony said. (We referred to Nicol v Macquarie University,[6] but that case was concerned with the effect of a further injury, and did not assist us). The Medical Assessor had made a significant deduction pursuant to s 323 of the 1998 Act, and Mr Mahony argued that it accordingly could not be said that the past history was ignored.
[6] [2018] NSWSC 1247
In any event, Mr Mahony submitted that the involvement of the brachial plexus was not a new diagnosis, as the Medical Assessor explained that it was part of the injury to the shoulder. No evidence was lodged that suggested any other possible cause, we understood Mr Mahony to submit.
Ground 3
In answer to ground 3 Mr Mahony submitted that the Medical Assessor gave ample reasons for his assessment, and that they were to be found in paragraphs 10 and 11 of the MAC.
The Medical Assessor set out his findings in relation to the past conditions and injuries and commented on the fact that Mr Mahony did not in his statement, nor in the history given to the Medical Assessor, include all the matters in the material provided to him. The Medical Assessor’s path of reasoning and his conclusions, it was submitted, could not be clearer.
DISCUSSION
In Skates v Hill Industries ltd[7] the Court of Appeal examined the process by which disputes were referred to a Medical Assessor. Basten JA said at [35]:
“Further, it is apparent that the referral by the Registrar was in a standard form, as was the application to resolve a dispute. There was no suggestion that these forms were not in appropriate terms. It follows that the primary judge was correct in finding that the Appeal Panel (subject to the identified concession which it was held should have been taken into account in assessing the claim) was correct in concluding that Dr Machart’s assessment contained demonstrable error in failing to be limited to the terms of the claim.”
[7] [2021] NSWCA 142.
Leeming JA said at [48]:
“The [referral] is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.”
McCallum JA said at [82]:
“Since preparing this judgment, I have had the benefit of reading the judgment of Basten JA in draft. His Honour’s reasoning has prompted me to clarify my position as to the status of the Registrar’s referral. I do not mean to suggest that an approved medical specialist is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved.”
The terms of the referral regarding the subject injury related to a WPI assessment with regard to “Left upper extremity (shoulder and elbow).” The brachial plexus is a group of nerves that send signals from the spinal cord to the shoulder, arm and hand. AMA5 at page 489 defines it as follows:
“The brachial plexus innervates the shoulder girdle and upper extremity and is formed by the anterior primary divisions of the fifth through eighth cervical roots and the first thoracic root. These roots anastomose
| Brachial Plexus and Trunks | Maximum % Upper Extremity Impairment Due to: | ||
| Sensory Deficit or Pain* | Motor Deficit | Combined Motor/Sensory Deficits | |
| Brachial plexus (C5 through C8, T1) | 100 | 100 | 100 |
| Upper trunk (C5, C6, Erb-Duchenne) | 25 | 75 | 81 |
| Middle trunk (C7) | 5 | 35 | 38 |
| Lower trunk(C8, T1, Déjerine- Klumpke) | 20 | 70 | 76 |
to form three primary trunks: upper trunk (C5 and C6), middle trunk (C7), and lower trunk (C8 and T1) (Figure 16-50). Specific findings result from the involvement of these structures.”
The relevant guidelines are contained in the Chapter 2 of the Guides, which provide for the assessment of upper extremity impairment for peripheral nerve disorders at Chapters 2.9 and 2.10. The respondent is correct that the methodology for assessment of such disorders is contained in AMA 5, but, with respect, incorrect in relying of p 487 of AMA5 and “table” 16-47. The “table” is in fact a “figure” and was not referred to by the Medical Assessor in his calculations for the reason that the “Motor Innervation of the Upper Extremity” (the heading of Figure 16-47) is not concerned with the brachial plexus. The Medical Assessor invoked Table 16-14 at page 490 of AMA5:[8]
“Table 16-14 Maximum Upper Extremity Impairments Due to Unilateral Sensory or Motor Deficits of Brachial Plexus or to Combined 100% Deficits
* See Table 16-10a to grade sensory deficit or pain.
See Table 16-11a to grade motor deficit.
From Swanson AB, de Groot Swanson G. Evaluation of permanent impairment in the hand and upper extremity. In: Doege TC, ed. Guides to the Evaluation of Permanent Impairment. Fourth ed. Chicago, Ill: American Medical Association; 1993.”
[8] Appeal papers page 23.
It can be seen therefore that an injury to the brachial plexus is a separate entity to the shoulder and elbow. It concerns a separate part of the anatomy with its own methodology to assess permanent impairment.
Whilst Mr Mahony submitted that there was no evidence to suggest that the diagnosis of a brachial plexus injury was erroneous, his argument rather puts the cart before the horse.
Whilst the function of a Medical Assessor is to form and give his own opinion on the medical question by applying his own medical experience and own medical expertise, that function is circumscribed by the need to apply such expertise and experience to the “medical question referred to [him]”.[9]
[9] Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; at [47] per the plurality. See also Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].
We note the appellant employer’s reliance on Jaffarie. We concur that whether Mr Mahony had suffered an injury to his brachial plexus in the workplace accident was a question that went to the nature of the injury, and was a matter for the Commission to determine. In
Mr Mahony’s case however, it had never been raised as part of the dispute. We note that the Medical Assessor’s action in assessing WPI for injury to the brachial plexus has deprived both parties of their opportunity to investigate such a proposition, and has accordingly deprived them of procedural fairness and natural justice.[10][10] See generally Shi v Transpace Pty Ltd [2023] NSWPIC 314 from [200].
Accordingly the Panel determined that the MAC should be revoked. However, we do not agree that the result must be simply that the assessment regarding the left upper extremity should be rescinded “to make way for a corrected Medical Appeal Panel Certificate with the removal of any WPI attributed to the ‘brachial plexus lesion’ in order to rectify these errors”.
The manner in which the Medical Assessor calculated the brachial plexus impairment was predicated on assessments already made for the left shoulder impairment. As noted, Table 16-14 provides for the assessment of unilateral sensory or motor deficits of the brachial plexus.
The Medical Assessor found that Mr Mahony had sensory loss. At page 482 of AMA5 the following appears:
“Upper extremity impairments due to sensory deficits or pain resulting from peripheral nerve disorders are determined according to the grade of severity in diminution or loss of function and the relative maximum upper extremity impairment value of the nerve structure involved,
…..
[Table 16-10] is to be used for pain that is due to nerve injury or disease that has been documented with objective physical findings or electrodiagnostic abnormalities. It is not to be used for pain in the distribution of a nerve that has not been injured
except in diagnosed cases of complex regional pain syndromes….”
It can be seen that loss of function is a relevant criterion when considering sensory deficits. Loss of function also involves loss of motion, which by Chapter 2.5 of the Guides is assessed by measuring the range of motion. The Panel was concerned that the attention erroneously given by the Medical Assessor to the presence of sensory deficits caused by the brachial plexus may have diverted him from his function, which was relevantly to assess the impairment caused to the shoulder and the elbow of the left upper extremity. Medical Assessor Gothelf of the Panel accordingly re-assessed Mr Mahony on 20 September 2024.
Medical Assessor Gothelf’s report follows:
Date of Reconsideration: | 20 September 2024 |
Medical Assessor: | Todd Gothelf |
Specialty: | Orthopaedics |
1. DETAILS OF MATTERS REFERRED FOR ASSESSMENT
The appeal is in specific reference to the Injury 19 December 2019. Mr Mahony indicated that
he had been driving with a large water tank and there was a machine that requires a pull start, and as he did this it ‘jammed’, and he was immediately aware of pain in his left neck, shoulder and elbow region, and he also recalls striking his left elbow at the time on the car. He has had problems with his left upper extremity ever since then.
Mr Mahony underwent surgery of 16 October 2020 for a left ulnar nerve transposition by Dr Wade Harper.
Mr Mahony underwent surgery 3 November 2020 for a rotator cuff repair as well as biceps tenodesis.
Mr Mahony underwent physiotherapy.
• Present treatment:
Mr Mahony has no more formal treatments. He continues to take pain medications.
• Present symptoms:
Mr Mahony rated the left shoulder pain as constant at a pain level of 7/10. The pain was localised around the rotator cuff. The shoulder felt not much different after surgery. The pain is not changing.
Mr Mahony stated he had pain in the left elbow and down to the hand in all the fingers. He has tingling as well. The pain comes and goes randomly.
• Details of any previous or subsequent accidents, injuries or condition:
Mr Mahony denied any subsequent injuries or accidents since the condition.
Mr Mahony informed that he underwent an operation on his left knee at the age of 16. He indicated that he had no further problems with either knee thereafter until his injury in March 2018.
Mr Mahony recalled previous right shoulder surgery, but no prior left shoulder surgery. He confirmed pain in the left shoulder in 2004 and 2005 as he recalled an injury at work. The pain went away and was not present prior to the subject accident.
Mr Mahony takes Panadeine Forte and Neuromol. He denied smoking cigarettes and denied drinking alcohol regularly.
• General health:
Mr Mahony is a 65-year-old male in general good health. Mr Mahony has no past medical illnesses.
• Work history including previous work history if relevant:
Mr Mahony worked with Waverley Council with physical work prior to the accident His position involved heavy labour. After the subject accident he stopped working and he never returned to work.
• Social activities/ADL:
Mr Mahony lives in a house with his daughter age 27. Mr Mahony is able to shower and dress himself but struggles due to pain in the left arm. He is able to drive a car. Mr Mahony does his home duties, and his daughter helps. Mr Mahony mows his lawn although he struggles and has a push start mower. He usually has someone mow the lawn. He used to enjoy surfing, and touch footy and tennis, and gave up his sports due to his left arm.
2. EVIDENCE
Documentary Evidence
The following medical reports, statements and/or submissions were referred by the Commission for this further assessment or reconsideration:
Documentary Evidence of Medical Treatment PRIOR to the subject injury
The documentation indicated that surgery was performed by Dr Harper 18 March 2005 for a left shoulder labral repair, SLAP repair, acromioplasty and AC joint excision.
18 March 2005 – Operation Report, Dr Wade Harper
·Procedure: L SHOULDER LABRAL REPAIR, SLAP REPAIR, ACROM& AC JT EXC
4 October 2006, Letter Dr Wade Harper. 18 months after left shoulder surgery. Function range of motion with forward elevation to 130 degrees.
Documentary Evidence of Medical Treatment AFTER the Subject injury
Surgery was performed 6 October 2020 for a left elbow submuscular ulnar nerve transposition.
Surgery was performed 3 November 2020 by Dr Wade Harper for a left shoulder arthroscopic acromioplasty, rotator cuff repair and open subpectoral biceps tenodesis.
29 June 2020, Letter Dr Wade Harper. Presented with a seven month history of left shoulder and elbow pain with ulnar finger numbness. An MRI of the left shoulder revealed a full thickness upper subscapularis tendon tear with biceps subluxation and anterior supraspinatus tear. He had two problems, a left shoulder rotator cuff tear with biceps instability, and a left ulnar nerve subluxation. Recommended nerves studies. Will likely requires surgery on both areas. Writing for approval.
6 October 2020 – Operation Report, Dr Wade Harper
Procedure: Elbow submuscular ulna nerve transposition – Left
3 November 2020 – Operation Report, Dr Wade Harper
· Procedure: Shoulder arthroscopic acromioplasty, rotator cuff (sub +ss) repair and open subpectoral LHB tenodesis – Left
25 August 2022, IME Report Dr Brian Stephenson
· Cervical Spine, asymmetrical loss of motion, 5% WPI
· Left Upper Extremity, ulnar nerve lesion 5% UEI, elbow impaired ROM 11% UEI, left shoulder 15% UEI, total 30% UEI, converts to 18% WPI.
· No deductions.
· No indication of previous injuries or treatment to left shoulder.
29 November 2022, IME report Dr John Bosanquet, Orthopaedic Surgeon.
· It is my opinion that the work-related incident on 19/12/2019 was not a substantial contributing factor to any pathology in the worker’s cervical spine. He is known to have degenerative changes in his cervical spine with X-rays back to 2004.
· For the left shoulder. This is 10% WPI with a 50% deduction for pre-existing changes, a 5% whole person impairment.
· For the left elbow There is a 4% whole person impairment. I have deducted 50% due to pre-existing degenerative changes, leaving 2% whole person impairment.
· Left shoulder - loss of motion, 17% UEI.
· Left elbow loss of motion, 4%UEI. Loss of sensation ulnar fingers 3%
· 50% deduction for pre-existing conditions.
27 October 2023, IME report Dr Brian Stephenson, (19 December 2019).
· Recognised left shoulder history of symptoms.
· 1/10th deduction.
· Left shoulder and elbow 18% WPI, 1/10th deduction to 16% WPI.
· Cervical spine 5% WPI.
· 20% WPI.
3 January 2024, IME report Dr John Bosanquet.
· There is a 10% WPI for shoulder, deduction of 50% to 5% WPI.
· There is a 4% WPI for left elbow, 50% deductions leaving 2% WPI.
· No injury to cervical spine.
· 7% WPI due to incident 19 December 2019.
Investigations
12 June 2003 – Left Shoulder
Normal subacromial distance. Gleno-humeral joint normal. Acromio clavicular joint normal.
29 January 2004, X-rays both shoulders. Prominent large mid left clavicle with deformity consistent with old healed fracture.
11 February 2004, Ultrasound both shoulders. Supraspinatus, subscapularis and rotator cuff tendons normal and no tears.
4 January 2005, MRI Left shoulder. Moderate AC arthrosis, tear of the superior labrum anterior to posterior, small paralabral cyst.
15 June 2020 – MRI Left Shoulder, Spectrum
Impression:
1. Full-thickness tear involving most of the subscapularis tendon. Full thickness tear of the posterior supraspinatus tendon measuring 4 mm in AP width. Background of moderate supraspinatus and infraspinatus tendinopathy.
2. Mild subacromial subdeltoid bursitis.
3. Marked tendinopathy, interstitial tearing and moderate tenosynovitis involving the long head of biceps tendon.
4. Posterosuperior and anteroinferior labral tears.
5. Mild glenohumeral joint effusion and mild nonspecific synovitis.
6. Evidence of previous mid clavicular shaft fracture. Mild widening of the acromioclavicular joint with scarring of the superior ligament and thinning/tear of the inferior ligament consistent with previous injury.
15 June 2020 – MRI Left Elbow, Spectrum
1. Mild common extensor tendinopathy and tiny intrasubstance tear.
2. Partial tear of the radial collateral ligament.
3. Mild degenerative changes involving the humero-ulnar and humero-radial joints. No evidence of high-grade chondral wear.
3. ADDITIONAL HISTORY SINCE THE ORIGINAL MEDICAL ASSESSMENT CERTIFICATE WAS ISSUED
There was no additional history provided.
4. FINDINGS ON PHYSICAL EXAMINATION
Physical Examination
Passive range of motion formed part of the clinical examination to ascertain clinical status of the joint. For the purposes of impairment calculation, only active movement (i.e. performed under the voluntary control of the examinee, without physical input by the examiner) was measured and recorded below. Determinations were made in accordance with the patient’s apparent full effort and cooperation.
Mr Mahony is a 65-year-old right hand dominant male who height was 169cm and weight was 82 kg (BMI- 28.7- Overweight). He removed his shirt and was in no apparent distress.
Examination of the Cervical Spine
The cervical posture was normal. There was positive reported tenderness to palpation of the neck spinous processes or paraspinal muscles. There was no visible or palpable deformity in the neck region. There was no observed muscle spasm or guarding. Cervical movement was a fraction of the normal range of motion of full cervical extension, full flexion, full right rotation, full left rotation, full right lateral flexion, and full left lateral flexion. There was no cervical asymmetrical loss of motion.
Examination of the Upper Limbs
There was a full range of movement of wrists of both the upper limbs in all dimensions without crepitus, muscular spasm or tenderness. Power, reflexes, circulation, sweat cover, colour and temperature of both upper limbs were normal and equal.
There was no wasting or swelling of the upper limbs, and the circumferential measurements were as follows:
Right Left
Upper Arm 33 cm 33 cm
Mid-forearm 28 cm 28 cm
Active range of motion was measured with a goniometer:
Upper Limb
Shoulder
Right(0)
IMP
Left(0)
IMP
Normal(0)
Flexion
180
0
110
5
180
Extension
50
0
30
1
50
Abduction
170
0
90
4
170
Adduction
40
0
20
1
40
Internal Rotation
80
0
30
4
80
External rotation
80
0
50
1
60
Elbow
Right(0)
IMP
Left(0)
IMP
Normal(0)
Flexion
140
0
120
2
140
Extension
0
0
0
0
0
Pronation
80
0
80
0
80
Supination
70
0
70
0
70
There was a loss of sensation in the ulnar nerve distribution below the elbow to light touch and pin prick. There was a slight increased two point discrimination to 8mm on the left hand ulnar nerve distribution and otherwise normal in all other areas. There was a slight loss of strength of the intrinsic muscles of the left hand.
There was a reported reduced sensibility over the left arm from the supraclavicular region distally in the upper arm when compared to the normal side.
5. DETAILS AND DATES OF FURTHER SPECIAL INVESTIGATIONS
Mr Mahony recently saw Dr Granot, Neurologist, and had a nerve conduction study:
17 September 2024- There was left ulnar nerve slowing at the left of the elbow segment, affecting the sensory and motor fibres, consistent with a mild-moderate left ulnar neuropathy at across the elbow segment. Values are improved compared to the pre-operative study, but mildly so. There was slowing of the median conduction at the level of the wrist bilaterally, consistent with a mild bilateral carpal tunnel syndrome.
7. SUMMARY
• summary of injuries and diagnoses:
Leonard Mahony is a 65-year-old male who sustained an injury at work 19 December 2019. As a result of the subject injury Mr Mahony has the following relevant diagnoses:
· Left shoulder strain, rotator cuff tear and biceps instability. Surgery was performed 3 November 2020 for a left shoulder arthroscopy, acromioplasty, rotator cuff repair and open subpectoral long head biceps tenodesis. Mr Mahony reported ongoing left shoulder pain. The physical examination revealed a loss of active motion.
· Left elbow strain, ulnar nerve subluxation. Surgery was performed 6 October 2020 for a left elbow submuscular ulnar nerve transposition. A nerve study performed by Dr Granot, Neurologist 17 September 2024 revealed left ulnar nerve slowing, consistent with left ulnar neuropathy. Mr Mahony reported persistent pain in the left elbow to the hand and fingers and tingling. The physical examination revealed a slight loss of elbow motion and loss of two point discrimination in the ulnar nerve distribution, and a slight loss of muscle strength.
• consistency of presentation
The history is consistent with the physical examination findings and is consistent with the documentation provided. The diagnosis of injuries is consistent with the mechanism of injury and is consistent with the current status of the condition.
The documentation provided evidence that surgery was previously performed on the left shoulder in 2005 by Dr Harper for a labral repair, acromioplasty and distal clavicle excision. Mr Mahony indicated that he did not have previous left shoulder surgery, which is not consistent with the documentation.
Impairment is to be determined using the NSW Worker’s Compensation Guidelines for the evaluation of permanent impairment, Fourth edition, 1 March 2021 (the Guides), and the AMA Guides to Evaluation of Permanent Impairment 5th Edition (AMA 5).
Left Upper Extremity (shoulder, elbow)
Left Shoulder
Figures 16- 40, 43, 46 pp 476-479 AMA5 are used for shoulder impairment.
The measured active range of motion resulted in a 16% UEI.
Figures 16- 34, 37 pp 472- 474 AMA5 are used for elbow impairment. The measured active range of motion resulted in a 2% UEI.
The above impairments are combined. Combining 16% and 2% yields 18% UEI.
The was a left ulnar nerve dysfunction both sensory and motor.
Table 16-15 p 492 AMA5 is used. The ulnar nerve above mid-forearm is used, with a maximum sensory impairment of 7% UEI and maximum motor impairment of 46% UEI.
Table 16-10a p 482 AMA5 is used to grade the sensory dysfunction. With diminished two point discrimination, a grade III applies, A 50% factor applies. 50% of 7% yields 3.5% which rounds to 4% UEI.
Table 16-11 p 484 AMA5 is used. A grade 4 applies, and I consider that a 15% factor is reasonable. 15% of 46% is 6.9% which rounds to 7% UEI.
The sensory and motor impairments are combined. 7% combined with 4% yields 11% UEI.
The impairments for loss of range of motion are combined with the impairment due to peripheral nerve defects. 18% UEI combines with 11% UEI to yield 27% UEI. This converts to 16% WPI using Table 16-3 p 439 AMA5.
However, a deduction (see below) applies to the 16% range of motion assessment for the left shoulder, which results in a UEI of 5.28%, rounded to 5%.
Combining 5% (shoulder), 2% (elbow) and 11% (ulnar nerve) yields 18% UEI.
Table 16-3 p 439 AMA5 is used to convert 18% UEI to 11% WPI.
Deductions
There is a pre-existing left shoulder condition, with previous left shoulder surgery.
Mr Mahony did well after his surgery. However, the roll up up visits with Dr Harper indicated a forward elevation to 130 degrees, supporting that there was a pre-existing loss of motion, which has contributed to the current impairment. There has been no appeal against the s 323 deduction of 2/3rd assessed by the Dr PillemerWith regards to the ulnar nerve condition, there was no evidence of a pre-existing condition and therefore no deduction was relevant.
After applying the deduction for the pre-existing left shoulder condition, the impairment figures are as follows:
Left shoulder 16% – (2/3rd x 16) = 5% UEI (rounded)
Left elbow 2% LEI
Combined, equals 7% UEI
Combined with neurological impairment (ulna nerve) of 11% UEI, provides a total of 18% UEI.
This converts to a WPI rating of 11% WPI. (Table 16-3, AMA5 Page 439
The Final Whole Person Impairment is 11% WPI.
Worksheet /actual calculations attached? No
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
I have reviewed the report of Dr Roger Pillemer 24 April 2024 and make the following comments:
· Dr Pillemer indicated an impairment for loss of range of motion of the left shoulder. The findings at this assessment is relatively concordant.
· Dr Pillemer applied a 2/3rd deduction for loss of motion of the left shoulder due to a previous surgery in 2006. This deduction was not appealed.
We adopt the report of Medical Assessor Gothelf. It is apparent that the Medical Assessor’s calculations were inaccurate in any event. He found 15% UEI in respect of the range of motion assessment of the left shoulder, but did not include any elbow impairment (which he may have incorporated into his assessment of the brachial plexus). He acknowledged that
Dr Stephenson had assessed the elbow, and said his calculation was similar, “but for different reasons”.Thus the appeal succeeds as the Medical Assessor improperly assessed impairment from the brachial plexus. As a result, however, when the correct methodology is applied to the resultant medical dispute as requested by the referral, which specifically sought an opinion on both the shoulder and the elbow, Medical Assessor Gothelf’s calculations must be accepted.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 April 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W7647/23 |
Applicant: | Waverley Council |
Respondent: | Leonard Charles Mahony |
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 Medical Assessor Roger Pillemer and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
Matter Number: W7647/23
Applicant: Leonard Charles MAHONY Date of Assessment: 15 April 2024
| 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 AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre- existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Left lower extremity (knee) | 15/03/18 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 20% | 3/4 | 5% |
| Right lower extremity (knee) | 15/03/18 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 20% | 1/2 | 10% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
| 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 AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Left Upper Extremity (Shoulder, Elbow) | 19/12/19 | Chapter 2, NSW Guides. | Fig 16- 34, 16-37, 16-40,16- 43, 16-46, Table 16-3, 16-15, Table 16-10, 16-11 | 16% | 2/3 (applied to shoulder ROM upper extremity impairment only}. | 11% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE MEDICAL ASSESSMENT CERTIFICATE ISSUED BY DR TODD GOTHELF, MEDICAL ASSESSOR, PERSONAL INJURY COMMISSION.
John Wynyard
Member
Todd Gothelf
Medical Assessor
Alan Home
Medical Assessor
7 November 2024
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