Westpac Banking Corporation v Attia

[2024] NSWPICMP 102

DETERMINATION OF APPEAL PANEL
CITATION:	Westpac Banking Corporation v Attia [2024] NSWPICMP 102
APPELLANT:	Westpac Banking Corporation
RESPONDENT:	Mevat Attia
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	27 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal sought re-examination on basis of demonstrable error alleged to be the failure to adequately explain how impairment related to injury; diagnosis of injury and impairment assessment adequately explained and open to the Medical Assessor; the Appeal Panel could discern no error; no power to re-examine absent a finding of error; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 16 October 2023 the employer Westpac Banking Corporation (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 September 2023.

2. 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 MAC contains a demonstrable error.

3. 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.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. 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.

2. The appellant sought that the worker be subject to a re-examination by a Medical Assessor member of the Appeal Panel. The Appeal Panel did not find error for the reasons set below and accordingly had no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

1. 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.

Medical Assessment Certificate

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·    Date of injury:   27 October 2011

   ·    Body parts/systems referred:        

   Cervical spine

   Right upper extremity (shoulder)

   ·    Method of assessment:                  Whole person impairment”

4. The Medical Assessor issued a MAC as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	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)
Cervical spine	27/10/11	Chapter 4 Page 24-29	Chapter 15 Page 392 Table 15-5	7%	Nil	7%
Right upper extremity (shoulder)	27/10/11	Chapter 2 Pages 10-12	Chapter 16 Pages 433 to 521	8%	Nil	8%
Total % WPI (the Combined Table values of all sub-totals)					14%

1. The Medical Assessor considered that there was no applicable deduction for any pre-existing injury, condition or abnormality.

2. The employer appealed.

3. The appeal concerns the assessment of whole person impairment (WPI) for the right upper extremity and cervical spine. The deductible component of nil under s 323 deduction is not the subject of complaint on appeal.

4. In summary, the appellant made submissions in support of their contention that the Medical Assessor had made demonstrable errors which included the following:

   (a)    “Assessing impairment associated with diagnoses based on radiological evidence without providing any path of reasoning as to how such impairment is as a result of an injury on 27 October 2011 having due regard to the history of the claim and prior examinations of the respondent.”

   (b)    The injury occurred almost 12 years before the examination by the Medical Assessor. This fact alone required the Medical Assessor to consider the extensive history of the claim and provide a clear path pf reasoning in relation to what impairment was as a result of the injury.

   (c)    The attribution by the Medical Assessor of impairment at an assessment taking place on 13 September 2022 to an injury of the nature described occurring on 27 October 2011 is “glaringly improbable” and “demonstrates either a lack of awareness of the history of the matter or, at a minimum, an unsupportable reasoning process (see Ferguson v New South Wales [2017] NSWSC 887)”.

   (d)    The Medical Assessor has made a demonstrable error in assessing impairment of the right shoulder and cervical spine without providing any reasoning as to how this impairment was as a result of an injury.

5. In summary, the worker Mervat Attia (the respondent) submitted that the Medical Assessor  did not make a demonstrable error and the MAC should be confirmed.

6. The Medical Assessor took a history on examination as follows:

   “• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   Ms Attia states that on 27 October 2011 she was changing a reel on the ATM. To change the reel which was hard to get to, she had to stand on her toes and it was awkward. She said she lost balance and whilst on her tip-toes went backwards, but was able to stay upright. In the process she felt pain in her right arm and neck.

   She reported the incident and consulted the general practitioner. She was referred for x-rays which revealed no abnormality. She was treated conservatively with medication and physiotherapy. She was off work for a while and then returned to work on restricted duties. She was not able to return to pre-injury duties and her role was changed to customer service and she has worked in that role since.

   Symptoms persisted and she was referred to a hand specialist and shoulder specialist. Conservative treatment was continued regarding the hand pain. She had a cortisone injection to the right shoulder which gave her temporary relief.

   Symptoms persisted and fluctuated over time. She consulted Dr Saunders, sports physician who recommended that she see a neurosurgeon. She was reviewed by Dr Parkinson who recommended no surgery and referred her to Dr Yu for pain management. She was treated with medication, physiotherapy and facet blocks. At one stage the doctor apparently recommended a spinal cord stimulator, however she was not keen to proceed with that type of treatment.

   ·    Present treatment:

   She self-manages her pain by taking over-the-counter medication.

   ·    Present symptoms:

   She says she has difficulty cooking as repetitive arm movements aggravate her neck. She complains of numbness in the hand. She says she drops things and the hand goes numb. She struggles when driving and turning her neck when reversing. She said she now relies on mirrors.

   She says her neck is restricted.

   She complains of constant neck pain. The pain fluctuates for no particular reason and is aggravated by activities. Neck pain sometimes radiates to the upper arm. She complains of intermittent elbow pain radiating to the fingers. She says she can no longer do the gardening and has difficulty with housework.

   She complains of constant shoulder pain which is aggravated by movement. The shoulder is restricted. On direct questioning she has no problems with her left upper extremity.

   ·    Details of any previous or subsequent accidents, injuries or condition:

   There is no history of any previous or subsequent accidents, injury or condition.

   ·    General health:

   She has Hashimoto’s disease and is on Thyroxine. She also has hypertension and hyperlipidaemia for which she takes medication, but she cannot recall the names.

   ·    Work history including previous work history if relevant:

   She continues to be employed by the bank and works in customer service..

   ·    Social activities/ADL:

   She is married and has three grown up children. Prior to the injury she enjoyed going to the gym. She likes gardening but has difficulty doing the gardening. She has difficulty with housework, however she is independent in self-care.

7. The Medical Assessor recorded of his physical examination the following:

   “She is a lady of stated age in no apparent discomfort. She seems a little anxious but is very cooperative. She relays the history in a straight-forward manner.

   She dresses and undresses with no difficulty. Her right shoulder was restricted and consistent with the formal examination of the shoulder.

   Inspection of the neck reveals normal posture. There is no muscle guarding. She is tender over the spinous processes of the cervical spine and to the right of the midline, but not on the left side of the neck. She is tender at the root of the neck on the right side. Trapezii were not tender. The right shoulder is tender but there is no tenderness in the left shoulder.

   Neck movements were restricted with extension half normal, flexion three-quarters normal and rotation and tilt restricted bilaterally, left greater than right. There was no obvious wasting in the arms.

   Sensation in the arms to light touch and sharp stimuli was normal, right equals left. Reflexes were normal, right equals left (biceps, triceps and supinator jerks). She had normal grip strength and normal power in the hand, and on resisted elbow, wrist and shoulder movements. Upper extremity movements were measured with a goniometer. The left upper extremity has normal movements, whilst in the right upper extremity, the right shoulder was restricted.

   Shoulder Movements

Movement	Right	% Upper Extremity Impairment	Left	% Upper Extremity Impairment
Flexion	100°	5	180°	0
Extension	40°	1	50°	0
Abduction	90°	4	170°	0
Adduction	10°	1	40°	0
Internal rotation	50°	2	90°	0
External rotation	80°	0	90°	0
Total	13%	Total	0%

Impingement tests were positive on the right.”

1. The Appeal Panel notes that there is no complaint on appeal about the findings on physical examination by the Medical Assessor, rather it is the attribution of impairment to injury that is the subject of complaint.

2. Of the special investigations the Medical Assessor noted as follows:

   “The following x-rays were reviewed:

   MRI right shoulder, 2/02/15 – Dr Williams

   A small tear of the distal mid-part of supraspinatus, full thickness. Smaller partial thickness of infraspinatus.

   Background tendinosis. Subacromial subdeltoid bursitis and significantly spurred acromion.

   MRI cervical spine and right shoulder, 2/12/11 – Dr Kuan

   No significant neural compression. Small central disc protrusion at C3/4. Minor spondylitic change.

   No evidence of cuff tear. Mild subacromial bursitis. Biceps complex and labrums are intact.

   MRI right plexus, 2/07/17 – Dr Houang

   The brachial plexus shows symmetrical size and internal signal pattern compared with the left side. Perineural cysts are seen, larger on the right, most prominent at C8 nerve root in the lateral foramina. Smaller once seen along the right C7 and C6 nerve roots. These can be seen to avulsion nerve injury.

   C3/4 and C5 protrusions are seen in the cervical spine. The trunks, cord and peripheral nerves of the brachial plexus show no obvious abnormality.”

3. The Medical Assessor summarised the injury and diagnosis as follows, noting the respondent was consistent in her presentation: summary of injuries and diagnoses:

   “As a result of the incident described when she over-reached and losing her balance and going backwards on her toes with her body unbalanced, she sustained and injury to her right upper extremity and cervical spine.

   My clinical diagnosis is rotator cuff disruption, tendinitis and bursitis with impingement.

   Cervical disc lesion with non-verifiable radicular complaints.

   ·    consistency of presentation

   She presents in a genuine manner and there were no inconsistencies.”

4. The Medical Assessor noted:

   “My opinion is based on the clinical history obtained, my findings on clinical examination, examination of the investigations and reports thereof, as well as my review of the accompanying documents.”

5. The Medical Assessor explained his assessment of permanent impairment as follows:

   “My opinion and assessment of whole person impairment

   The claimant falls into DRE Cervical Category II⁽¹⁾ (see 10b). She has tenderness, asymmetric loss of range of movement and non-verifiable radicular complaints. ADLs are affected by her neck injury, however she is independent in self-care. I assess 2% whole person impairment for ADLs. DRE Cervical Category II is 5 – 8% WPI. I therefore assess 7% WPI for the cervical spine. In my opinion no deduction is applicable for pre-existing condition.

   I assess 13% right upper extremity impairment⁽²⁾ (see 10b), as per the table in section 5 of the MAC. 13% upper extremity impairment equates with 8% WPI.

   An explanation of my calculations (if applicable)

   AMA Guides to the Evaluation of Permanent Impairment, 5^th Edition:

   ⁽¹⁾Page 392, Table 15-5.

   ⁽²⁾Pages 476 to 479, Figures 16-40 to 16-46.

   PIC Guidelines, 4^th Edition:

   ⁽³⁾Pages 80 – 81.”

6. There is no complaint on appeal about the figures assessed for permanent impairment, rather it is the attribution of the impairment found to injury, given that it occurred in 2011 and the assessment of impairment took place in 2023.

7. The Medical Assessor made further brief comment on the other medical evidence Including differing medical opinion as follows: (footnotes omitted)

   “I note the reports of Dr Lai dated 6 March 2018 and 24 January 2023. The doctor assesses upper extremity impairment due to chronic pain.

   Chronic pain is not assessable under the PIC Guidelines (see 10b). Chronic pain is assessable if the claimant has CRPS 1 or CRPS 2, and where there is a peripheral nerve injury and there is sensory loss. The claimant does not have CRPS 1 or CRPS 2, and no peripheral nerve lesion with sensory loss.

   I note the report of Dr J G Bodel dated 29 January 2021. I found the same impairment for the cervical spine and right shoulder as Dr Bodel.

   I note the reports of Dr Coroneos dated 25 July 2018, and Dr Mellick dated 16 January 2019. Both doctors assess 0% impairment for injury to the nervous system. I also found no impairment relating to the nervous system.

   Dr Mellick in the report dated 12 April 2023 found no assessable impairment as a result of injury of the right upper extremity as a result of the injury on 27 October 2011.

   I found impairment as a result of injury to the right shoulder in 2011, with my findings being the same as Dr Bodel.

   I note the report of Dr F Machart dated 23 June 2023. He states that he is unable to establish that there is calculatable WPI in the absence of a diagnosis. The claimant has radiological evidence of disc lesion and rotator cuff tear, tendinitis and bursitis, and the condition is diagnosable (see section 7).”

8. The Medical Assessor clearly points out that there is a diagnosis as a result of injury that is available on the medical evidence before him and as result of his history taking and clinical examination on the day of assessment having due re3ard to the other medical evidence that was before him.

9. He has taken into account the mechanism of injury in 2011 and made a diagnosis that has had due regard to the history, the other medical evidence before him in the form of radiological investigations, the other medical evidence that was before him that included differing medical opinion and using his clinical expertise diagnosed as follows as a result of injury in 2011:

   “As a result of the incident described when she over-reached and losing her balance and going backwards on her toes with her body unbalanced, she sustained and injury to her right upper extremity and cervical spine.

   My clinical diagnosis is rotator cuff disruption, tendinitis and bursitis with impingement.

   Cervical disc lesion with non-verifiable radicular complaints.”

10. The Appeal Panel considers that a diagnosis that the worker suffered rotator cuff disruption, tendinitis and bursitis with impingement and cervical disc lesion with non-verifiable radicular complaints as a result of the 2011 injury referred to him was open to the Medical Assessor in the exercise of his clinical judgment as the Medical Assessor appointed by the Personal Injury Commission to conduct the impairment assessment of the right upper extremity and cervical spine.

11. The Appeal Panel notes that the Medical Assessor has made a considered diagnosis based upon clinical grounds that he has explained in sufficient and adequate detail for it to be understood how he has arrived at that diagnosis as a result of the referred injury, taking into account the mechanism of injury, the radiology and the other medical evidence before him. The clinical findings of the Medical Assessor are consistent with the referred injury. The Medical Assessor has taken a clear history of injury and sequalae and is cognisant of when the injury occurred. The MAC must be read as a whole and the reasons of the Medical Assessor need not be extensive. The Appeal Panel notes that there were ongoing complaints of symptomology since the injury and radiological confirmation of the pathology and no subsequent injuries. The Appeal Panel can discern no error and the MAC will be confirmed.

12. For these reasons, the Appeal Panel has determined that the MAC issued on 18 September 2023 should be confirmed.