Welsh v Hanlon Windows (Australia) Pty Ltd
[2023] NSWPICMP 444
•7 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Welsh v Hanlon Windows (Australia) Pty Ltd [2023] NSWPICMP 444 |
APPELLANT: | Anthony Welsh |
RESPONDENT: | Hanlon Windows (Australia) Pty Limited |
| APPEAL PANEL | |
MEMBER: | Paul Sweeney |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 7 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker alleged error in assessment of cervical spine by reason of Medical Assessor’s failure to explicitly address the presence of non-verifiable radiculopathy or guarding; Table 15-5 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); in the discrete circumstances of this case where there were complaints of shoulder pain error established; Held – after reassessment Medical Assessment Certificate (MAC) revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 May 2023, Anthony Welsh (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 April 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was formerly employed by Hanlon Windows (Australia) Pty Limited (the respondent) as a truck driver. In the course of his employment on 23 January 2020, the appellant suffered injury to his right shoulder and neck while attempting to unload a set of glazed windows from the tray of a truck.
When the appellant’s right shoulder pain did not settle with physiotherapy and rest, he was referred to an orthopaedic surgeon, Dr David Cossetto.
On 3 June 2020, Dr Cossetto performed arthroscopic decompression and rotator cuff repair of the appellant’s right shoulder at Nowra Private Hospital.
After the appellant returned to work on light duties in July 2020, he experienced an increase in the pain in his shoulder and neck. He was referred to Dr Cherukuri, a neurosurgeon, for advice and treatment. Dr Cherukuri recommended that the appellant continue with physiotherapy.
On 23 May 2022, the appellant saw Dr Bodel, an orthopaedic surgeon, at the request of his solicitor for the purpose of making a claim for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). Dr Bodel expressed the opinion that the appellant suffered a primary injury to his right shoulder and neck on 21 January 2020 and suffered from a consequential medical condition of the left shoulder.
Dr Bodel expressed the opinion that the appellant suffered 16% whole person impairment (WPI). He attributed 7% WPI to the cervical spine, 8% to the right upper extremity (shoulder) and 2% to the left upper extremity (shoulder).
Dr Courtenay, an orthopaedic surgeon, saw the appellant, at the request of the respondent on 23 July 2021. He expressed the opinion that the appellant was restricted to suitable duties, although he should be able to continue such duties on a full-time basis.
Following a further consultation on 22 December 2022, he expressed the opinion that the appellant suffered 5% WPI. He attributed 4% WPI to the RUI (shoulder) and 1% WPI to the LUI (shoulder).
By a supplementary report dated 23 December 2022, he expressed the opinion that the appellant suffered 6% WPI in respect of his neck. On combining this with the losses in relation to both shoulders, he found 11% WPI.
As the difference of opinion between Dr Bodel and Dr Courtenay gave rise to a medical dispute as that term is used in s 319 of the 1998 Act, a delegate of the President referred the matter to Medical Assessor Ho for assessment. It is from his MAC that the appellant brings this appeal.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that there was prima facie error in the Medical Assessor’s assessment of permanent impairment of the appellant’s cervical spine. Accordingly, the Panel determined that it was appropriate for the appellant to be re-examined by Dr Oates of the Panel in respect of that error.
EVIDENCE
The Appeal Panel has before it all the documents which were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Oates of the Appeal Panel conducted an examination of the worker on 17 August 2023 and reported to the Appeal Panel. His report is as follows:
“Mr Welsh is right-handed. He said on 23 January 2020, he and a colleague were lifting a set of glazed windows of weight about 80kg onto a truck. He was on the ground and his colleague was on the back of the truck. As they lifted the windows using ropes, one of the ropes got caught and the window started to fall, and Mr Welsh took the weight of the window, which he caught below waist height. He then held it whilst his colleague jumped down and assisted him.
He felt immediate right shoulder and neck pain but he thought it was just a strain which would settle by itself. He felt worse the next day and reported the incident to the Employer. He rested over the Australia Day long weekend.
He then managed to get an appointment with his GP for 29 January 2020. He was put off work and sent for imaging and physiotherapy. An ultrasound scan showed a small full-thickness tear at the right shoulder.
He was referred to Dr Cossetto, orthopaedic surgeon, Nowra. He saw the specialist on 28 February 2020. An MRI scan was ordered which showed a near total full-thickness supraspinatus tendon tear. Mr Welsh was then unsure whether he returned to work for a period on light duties.
Dr Cossetto advised surgery. This proceeded on 3 June 2020 consisting of arthroscopic right shoulder decompression with rotator cuff repair at Nowra Private Hospital. His arm was in a sling for 12 weeks and he had analgesia.
He was asked to return to work by the employer and a rehabilitation advocate from three weeks post-operatively and he was feeding rubbers and felts into channels. This repetitive action was hurting his shoulders and the shoulder did not feel right. He couldn’t sleep flat in bed for six months and had to use a La-Z-Boy.
He told Dr Cossetto about the ongoing pain and had an ultrasound scan on 5 February 2021 showing moderate bursitis with mild to moderate glenohumeral effusion with debris, which was non-specific. He then had an ultrasound-guided subacromial bursal injection on 22 February 2021 with no benefit.
At specialist review on 31 May 2021, he had continuing right shoulder pain with right-sided neck pain radiating to the shoulder girdle and down the posterior arm to the right elbow, but there were no sensory changes in the arm.
He had an MRI scan of cervical spine showing multi-level disc osteophyte complex at C4/5, C5/6 and C6/7 with moderate right C4/5 and moderate left C5/6 and moderate to marked bilateral C6/7 foraminal narrowing but he did not experience any symptoms in the left arm.
Dr Cossetto referred him to Dr Cherukuri, neurosurgeon, Wollongong, whom he saw on 3 September 2021. He noted there was no numbness and good range of movement in the cervical spine, except with pain on right lateral flexion, and that the upper limb and lower limb reflexes were normal and there was bilateral normal motor power.
Dr Cherukuri ordered a CT scan of the neck and functional x-rays and bone scan, and reviewed him on 5 October 2021 and advised physiotherapy for the neck. Mr Welsh noticed initial benefit but there was no long-term benefit from physiotherapy.
Dr Cherukuri advised review if the radicular symptoms in the right arm worsened. However, Mr Welsh was not keen on the idea of having surgery on the cervical spine.He had review with Dr Cossetto and was told to continue physiotherapy and see how the shoulder goes, and the last review was about 12 months ago.
His left shoulder started to get sore after the operation on the right shoulder because of overuse of the left arm whilst the right arm was in a sling for three months. No investigations or specific treatment was given for the left side.
Current Status
Mr Welsh feels there is a lack of strength in the right shoulder and reduced range of movement. He can’t ride dirt bikes anymore, which he has done since he was a youngster, because of shoulder pain. He can’t fish because of the shoulder and can’t swing a golf club again because of the shoulder.
He can’t hang washing out on the line and has difficulty drying himself after a shower and mowing the lawn because of shoulder pain. He can whipper-snip because the strap runs across the left shoulder. He said his neck does not seem to limit him with everyday activities, it is more than problem with the right shoulder.
He can normally drive OK and will rest the right arm low if he is doing a long period of driving, such as the three hour drive to this exam, during which he took a 10-minute break.
His sleep is disturbed by right shoulder pain and he hasn’t been able to lie on his right side since the injury. If he turns onto that side in his sleep, pain wakes him up. He also finds it hard to get his neck comfortable to get to sleep and wakes up with a stiff neck on the right side regularly.
Current treatment consists of stretch exercises and he uses Therabands for strengthening, but he can’t use weights because it stirs up his right shoulder. He takes Panadeine Forte twice daily, as he has found that this is the only medication that works for him. He takes Movicol for the resultant constipation.
Past history
In 2008, he injured his right shoulder when falling off a motorcycle. He had no neck pain. He was treated with analgesics. He was reviewed by Dr Cossetto. He had an MRI scan showing an anterior supraspinatus tear. At this time, he was offered either surgery or else to wait and see how he goes. He opted for the latter.
He was a self-employed truck driver at the time delivering kitchen components and he didn’t want to have a long period of recovery following surgery, so he kept working and his symptoms settled in about a month and he was able to return to his usual activities.
He has not had any previous problems with the neck.
He has had no subsequent injury since the index injury of 23 January 2020.
General health
This has been good apart from after he caught COVID. On 23 December 2022, he developed Guillain-Barrè syndrome causing loss of power in his legs and he was in hospital for 10 days. At the time, he also had some aching around the right scapula and had to wear an arm sling again for a period but this settled.
Social history
He is single and lives along in a three bedroom duplex. He does his own housework and yard work. He drinks alcohol rarely and is a social smoker. He has not been able to return to dirt bike riding and has difficulty with lawn mowing, some aspects of housework and drying himself after a shower, as reported above.
Work history
He has been working as a delivery truck driver, taking glazed framed windows and doors for Hanlon Windows, since August 2018 and was terminated from them in November 2021, as the insurer considered he was too much of a risk to upgrade to pre-injury duties.
He had started console operating in June 2019 as a casual on weekends and after he lost his job at Hanlon, his other employer gave him up to 25 hours a week. He has since started casual tow truck operating from December 2022 at 12 hours a week over 1.5 days per week.
Investigations
No imaging was brought to the examination.
EXAMINATION
General presentation
He was of average build with height 170cm and weight 65.5kg.
He had male pattern alopecia.
Cervical spine
Normal contour. Flexion and extension were both full range. Rotation was full range bilaterally. Lateral flexion was one-half range to the right and two-thirds range to the left. This was consistent when repeated. There was no guarding, no muscle spasm, and no focal tenderness.
Reflexes, power and sensation in the upper limbs were normal. Upper arm girth; right 26cm, left 26.5cm at 10cm above the elbow crease. Forearm girth; right equals left equals 25.5cm at 5cm below the elbow crease.
There was no inconsistency in his clinical presentation.
OPINION – DIAGNOSIS AND IMPAIRMENT
The diagnosis is soft tissue injury to cervical spine.
There is also aggravation of pre-existing multi-level degenerative changes, as evidenced by MRI scan undertaken on 21 June 2021. The worker gave a history that the cervical degenerative changes were asymptomatic prior to the index injury.
The radiating symptoms to the right upper extremity did not follow a specific nerve root distribution, based on Mr Welsh’s description of radiation of pain from the right side of the neck, through the upper trapezius and posterior right arm, as far as the elbow but not distal to this, and not associated with paraesthesia.
There was dysmetria (asymmetric loss of active range of motion) in lateral flexion of cervical spine and this was reproducible and consistent. There was no evidence of cervical radiculopathy because there were normal reflexes, power and sensation.
Right upper arm atrophy and probable forearm atrophy, which was present to a mild degree, was explicable on the basis of underusage of that limb because of the right shoulder injury and consequent pain. The arm and forearm girths on the dominant side in a male doing physical work would normally be about one cm greater than on the non-dominant side.
The cervical spine is assessed as DRE Cervical Category II which gives a range of 5-8% whole person impairment. 5% is the appropriate impairment level, as there is no interference with activities of daily living on account of the cervical spine, but rather on account of the right shoulder injury, based on the history given by Mr Welsh.”
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor which are relevant to the appeal are set out 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. The primary thrust of the appellant’s submissions was that the Medical Assessor had failed to take into account evidence of radiculopathy and guarding when he assessed the appellant’s cervical spine. He stated:
“It is clear that the MA in finding a DRE Category I of the cervical spine has not considered the history recorded by him, namely that the appellant complained of radiculopathy from the cervical spine into the right arm. The MA has not provided any comment on whether any muscle guarding was present at the time of the examination. To find DRE Category I impairment there must be a complete absence of muscle guarding and spasm along with no documentable neurological impairment or other indication of impairment. The failure to account and comment on whether muscle spasm or guarding were present and assessing the appellant as DRE Category I impairment must render the assessment of the MA as being based on incorrect criteria and this is a demonstrable error [sic].”
The appellant also referred to Wingfoot Australia Pty Ltd v Kocak.[1] It submitted that the Medical Assessor had failed to provide sufficient reasons as to how he reached his opinion and assessment of DRE Category I of the cervical spine.
[1] (2013) 252 CLR 480 at [47].
The respondent submitted that the Medical Assessor’s record of his examination of the appellant was consistent with a finding of DRE Cervical Category I. It continued:
“In order for the appellant to have been assessed as falling within DRE Cervical Category II the MA would need to have identified muscle guarding or spasm, asymmetric loss of range of movement or a non-verifiable radicular complaint. The MA did not observe any of these features on examination. He has in fact noted that he found none of them.”
The respondent referred to the decision in Bayad v Qantas Airways Limited.[2] It argued that this appeal was “made on the same erroneous basis as the appeal in Bayad”. The Medical Assessor was entitled to rely on his clinical findings and found no evidence of loss of movement, muscle spasm, deformity or radiculopathy.
[2] [2020] NSWWCCMA 80.
The respondent submitted that the Medical Assessor had given clear reasons as to why he found as he did. He had also set out the basis of his disagreement with Dr Bodel.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This sub-section was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in his application.
In Campbelltown City Council v Vegan,[3] 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.
[3] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[4] An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace v Australia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the Medical Assessor without first identifying error.
[4] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the Medical Assessor to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Ltd V Kocak[5] that it is only necessary for the MAC to explain the actual path of reasoning of the Medical Assessor in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[5] [2013] HCA 43.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation Legislation; see, for example, El Masri v Woolworths Ltd.[6]
[6] [2014] NSWSC 1344.
Table 15-5 of AMA5 provides the following criteria for DRE Cervical Category I:
“No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures.”
The Table furnishes the following criteria for DRE Cervical Category II:
“Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, a symmetric loss of range of motion or non-verifiable radicular complaints defined as complaints of radicular pain without objective findings; no alteration of the structural integrity OR individual had clinically significant radiculopathy and an imaging study that demonstrated a herniated disc at the level and on the side that would be expected based on the radiculopathy but has improved following non-operative treatment.”
The balance of the criteria in relation to DRE Cervical Category II deal with fractures which are not relevant to this appeal.
The Medical Assessor recorded that the appellant complained of the following symptoms:
“The right shoulder has significant improved [sic], subjectively 80% in terms of pain, it still remains a bit stiff and weak and is difficult doing above shoulder movements. Certainly fishing, throwing a ball and all those things are difficult. In the neck, he complains of some midline discomfort and some stiffness. He complains of some pain in the left shoulder, because he is favouring the use of the right shoulder but no other treatment and investigations have been done in the past few years for the left shoulder.”
The Medical Assessor stated that he assessed impairment in respect of the cervical spine as follows:
“To assess the cervical spine, using AMA 5th edition, Table 15-5, I will assess it as DRE Cervical Category I with 0% whole person impairment because there is no muscle spasm and no loss of movement.”
At the preliminary conference, the medical practitioners on the panel concluded that it was difficult to understand the actual path of the Medical Assessor’s reasoning leading to his conclusion of 0% WPI in respect of the cervical spine in the context of the appellant’s complaints and the medical evidence in the case. It was evident that the appellant complained of pain and restriction of movement in both shoulders at the examination. While it was plausible that this pain was associated with pathology in the shoulder, it was also possible that it emanated from his cervical spine. The Medical Assessor’s failure to specifically address the issue of possible radiculopathy in his reasons, in the unusual circumstances of this case, gave rise to doubt as to whether he had adequately addressed the criteria set out in Table 15-5 of AMA 5 for assessing the impairment of the cervical spine. The Medical Assessor had also failed to specifically comment on the absence or presence of “guarding” on his examination, although this, standing alone, may not constitute error.
In these circumstances, given the findings of both Dr Bodel and Dr Courtenay, the panel concluded that there was prima facie evidence of error in the assessment of the cervical spine and that Dr Oates of the panel should re-examine the appellant in respect of the cervical spine. Following his re-examination, the panel reconvened and considered the contents of Dr Oates’s assessment, which is set out above, in the context of the entirety of the medical evidence in the case. The panel concluded that it should accept the determination of Dr Oates that the appellant suffered 5% WPI in respect of his cervical spine in accordance with the criteria in Table 15-5.
The panel specifically considered the impact of the cervical injury on the appellant’s activities of daily living (ADL) as prescribed by Chapter 4.33-4.35 of the Guidelines. The panel agreed with Dr Oates’s assessment that it could not be established that the appellant’s cervical impairment impeded his ADL. The different opinions of the qualified doctors on this issue do not properly reflect the appellant’s evidence on the re-examination.
Bearing in mind the assessments of the Medical Assessor in respect of the appellant’s shoulders, the panel concluded that he had 9% WPI as a result of the subject injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 April 2023 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
Matter number: | W1300/23 |
Applicant: | Anthony Welsh |
Respondent: | Hanlon Windows (Australia) 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 You Key Ho 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) |
| 1. Right upper extremity | 23 January 2020 | Figure 16-40, 43, 46 | 4% | 1/10th | 4% | |
| 2. Left upper extremity | 23 January 2020 | Figure 16-40, 43, 46 | 0% | 0 | ||
| 3. Cervical spine | 23 January 2020 | Guidelines chapter 4. | Table 15-5 | 5% | 0 | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
0
6
0