Westpac Banking Corporation v Chauhan
[2021] NSWPICMP 4
•4 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Westpac Banking Corporation v Chauhan [2021] NSWPICMP 4 |
| APPELLANT: | Westpac Banking Corporation |
| RESPONDENT: | Madhu Chauhan |
| APPEAL PANEL: | Marshal Douglas Dr Mark Burns Dr John Ashwell |
| DATE OF DECISION: | 4 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Respondent worker suffered an injury of aggravation etc of bilateral cubital tunnel syndrome; AMS said when providing summary of injury that respondent suffered aggravation etc of bilateral carpal tunnel syndrome and overuse syndrome; AMS assessed impairment based on ROM of wrist and sensory and motor deficits of ulnar nerve; appellant submitted that AMS erred by not assessing the condition that had been referred for assessment and by not making deduction under section 323; Held- Appeal Panel found that when MAC considered as a whole, AMS reference in summary of injury to carpal was typographical error, and AMS meant to say cubital; Appeal Panel found no evidence that respondent had pre-existing condition and AMS did not make error by not making a deduction; Appeal Panel found that AMS erred by assessing overused syndrome as that was not a matter referred for assessment; Appeal Panel found that the respondent’s ROM of wrist is not related to bilateral cubital tunnel syndrome; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 December 2020 Westpac Banking Corporation (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Tommasino Mastroianni, who was then an Approved Medical Specialist of the former Workers Compensation Commission, and, who issued a Medical Assessment Certificate (MAC) on 1 December 2020.
The Appeal Panel observes that on 28 February 2021 the Workers Compensation Commission (WCC) ceased to be, and the Personal Injury Commission was established. In accordance with changes set out in Schedule 6 of the Personal Injury Commission Act 2020, an Approved Medical Specialist of the WCC is now known as a Medical Assessor and an Arbitrator is now known as a Member. The Appeal Panel shall use the acronym MA in these reasons refer to Dr Tommasino Masroianni.
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 Registrar of the WCC was 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 WorkCover Medical Assessment Guidelines set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Madhu Chauhan (the respondent) commenced employment with St George Bank in March 2008 working in an inbound call centre as a bank officer. The Appeal Panel understands that not long after, there was a merger between St George Bank Ltd and the appellant, and the Appeal Panel further understands that from that point the respondent was an employee of the appellant.
Some years later the respondent developed symptoms of pain in her right forearm and right shoulder and pins and needles in her right hand. Not long after that, she developed symptoms of pain in her left forearm and wrist and pins and needs in her fingertips.
The respondent previously instituted proceedings in the WCC seeking, it would seem, determination of a claim she had made against the appellant for compensation for:
(a) expenses she had incurred for treatment of an injury she alleged to have suffered to her neck, elbows and wrists as a consequence of excessive typing and using a mouse in the course of her employment with the appellant, and
(b) an incapacity she said she had from that injury.
That matter was referred to Arbitrator Mr Nicholas Read who on 11 June 2019 made the following determination and orders, which were recorded in a Certificate of Determination issued under s 294 of the 1998 Act:
“The Commission determines:
1 . The applicant suffered an injury in the course of her employment to her left and right upper extremities in the form of an aggravation, acceleration, exacerbation or deterioration of bilateral cubital tunnel syndrome with a deemed date of injury of 1 September 2015.
2. The applicant's employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of her bilateral cubital syndrome.
3. The applicant has not proved on the balance of probabilities that she suffered an injury to her neck pursuant to section 4(b)(ii) of the Workers Compensation Act 1987, or that the employment was the main contributing factor to any aggravation of the disease condition in her neck.
4 . From 1 September 2017 the applicant suffered incapacity for employment as a result the aggravation, acceleration, exacerbation or deterioration of bilateral cubital tunnel syndrome.
The Commission orders:
5. Award for the applicant on the claim for injury to her left and right upper extremities.
6. Award for the respondent on the claim for injury to the neck.
7. Award for the applicant on the claim for weekly benefits compensation. The respondent is to pay the applicant weekly benefits compensation pursuant to section 36 and 37 of the 1987 Act in the agreed amounts as follows:
(a) For the period 1 September 2017 to 30 June 2018, at a rate of $354 per week;
(b) For the period 1 July 2018 to date and continuing, at a rate of $285 per week.
8. Award for the applicant on the claim for medical expenses resulting from the aggravation, acceleration, exacerbation or deterioration of bilateral cubital tunnel syndrome. The respondent is to pay the applicant' s reasonably necessary medical expenses resulting from the aggravation, acceleration, exacerbation or deterioration of bilateral cubital tunnel syndrome and associated expenses.
9. Award for the respondent on the claim for medical expenses resulting from the claimed injury to the neck.”
The Appeal Panel observes that Arbitrator Read published a Statement of Reasons for his determination and orders. That statement was not however part of the materials that were briefed to the MA or part of the materials that form part of the Appeal Panel’s brief.
The appellant appealed against the arbitrator’s determination. On 10 December 2019, President Judge Phillips ordered that the Certificate of Determination be amended by substituting the date 1 September 2017 for 1 September 2015 in order 1, but otherwise the President ordered that the Certificate of Determination be confirmed.
On 1 July 2020 the respondent’s solicitors wrote to the appellant advising them that the respondent claimed compensation from the appellant under s 66 of the Workers CompensationAct 1987 (the 1987 Act) for 22% whole person impairment (WPI) resulting from an injury that was described in the respondent’s solicitors letter as an “injury to her right upper extremity, left upper extremity and scarring due to the nature and conditions of her employment”. The respondent’s solicitors also provided the following particulars in its letter of the respondent’s claim:
“(a) Dr Denise Tong sets out injuries received by the claimant in her report dated 22/06/2020 and we have set out the injuries above in this letter.
(b) Dr Denise Tong sets out all impairments arising from the injury in her report which give rise to the assessment of whole person impairment and we have set out the impairments above in this letter.
(c) Dr Denise Tong sets out in her report details of any pre-existing injury or pre-existing condition or abnormality to which any proportion of an impairment is or may be due. This particular is satisfied by reference to the attached medical report and the information therein.
(d) This letter is not a claim for work injury damages, but a claim under Section 66 and as such we do not have to provide you with details of any economic losses being claimed.
(e) Dr Denise Tong sets out in her attached* report that the degree of whole person impairment has reached maximum medical improvement. This particular is satisfied by reference to the information in the attached* medical report.
(f) There is no previous employment to the nature of which the injury is or may be due.
(g) We are not aware of any other matters set out in the workers compensation guidelines requiring us to provide any further particulars.”
The report of Dr Tong, who is a rheumatologist consulting in muscular skeletal matters, to which the respondent’s solicitors made reference in those particulars was enclosed with their letter of 1 July 2020. In her report, which was addressed to the respondent’s solicitors, Dr Tong advised that she had diagnosed that the respondent had “sustained a repetitive strain injury to the forearms around 1 September 2017”. Dr Tong stated that “as a consequence of the work injury, Mrs Chauhan has constant discomfort in the right and left forearms that limits Mrs Chauhan’s ability to engage in any repetitive or sustain upper limb activities”.
In a later part of her report Dr Tong further advised that she made her diagnosis based on the history she obtained in her examination of the respondent and a review of investigations that had been done on the respondent. Dr Tong at this part of her report provided a somewhat different diagnosis, being that the respondent had “right upper limb: cubital tunnel syndrome” and “left upper limb: cubital tunnel syndrome”.
Dr Tong also advised that she had assessed the respondent had 22% WPI, comprising 11% WPI for an injury to the right upper extremity, 11% WPI for and injury to the left upper extremity and 1% WPI for scarring that was due to surgery the respondent had. Dr Tong detailed in her report that the components comprising the respondent’s impairment of her right upper extremity consisted of restricted range of movement of her right wrist and motor and sensory deficits due to ulnar nerve entrapment from cubital tunnel syndrome. Similarly, Dr Tong advised the respondent’s impairment relating to her left upper extremity consisted of restricted range of movement of the respondent’s left wrist and motor and sensory deficits as a consequence of ulnar nerve entrapment from cubital tunnel syndrome.
The appellant, by means of a letter from its solicitors to the respondent’s solicitors dated 18 August 2020, responded to the respondent’s claim for compensation by offering to pay the respondent compensation of $28,360 for what it said was 13% WPI that had resulted from her injury. The respondent relied on reports of orthopaedic surgeon Dr Raymond Wallace dated 31 July 2020 and 18 August 2020, which its solicitors enclosed with their letter of 31 August 2020.
In his report of 18 August 2020 Dr Wallace advised that he had assessed the respondent had 13% WPI from her injury, comprising 5% WPI relating to the left upper limb and 7% WPI relating to the right upper extremity and 1% for scarring. That was net of a deduction he had made under s 323 for a pre-existing condition.
In his earlier report of 31 July 2020 Dr Wallace indicated that his assessment of the respondent’s impairment with respect to her left upper limb included an impairment for loss of movement of the wrist and an impairment for reduced sensation in the ulnar nerve distribution. Dr Wallace also in that report indicated that his assessment of the respondent’s right upper limb similarly included an impairment due to restricted range of movement of the right wrist and an impairment due to loss of sensation in the ulnar nerve distribution.
Shortly after the appellant made that offer, the respondent initiated proceedings in the WCC seeking determination of her claim for permanent impairment resulting from her injury. In the application, which was lodged by her solicitors, her injury was described in the following terms:
“Injury description: Left and right upper extremities (both wrists and both elbows) scarring.
Our client was employed as a bank officer since 2008. Due to nature and conditions of employment which requires excessive amounts of typing, she developed pain in both arms, wrists and elbows. She has since been diagnosed with traumatic cubital tunnel bilateral forearm.”
Her claim was referred to Arbitrator Mr John Wynyard who on 12 October 2020, with the consent of the parties, made the following determination that was recorded in a Certificate of Determination dated 12 October 2020:
“I remit this matter to the Registrar for referral to an MA for a whole person impairment assessment on the following bases:
(a) Date of injury: 1 September 2015 (deemed).
(b) Matter for assessment: The aggravation, acceleration, exacerbation or deterioration of a bilateral cubital tunnel syndrome.
(c) Evidence: ARD and attached documents; Reply and attached documents.”
On 21 October 2020 the WCC issued a referral to the MA requiring an assessment of a medical dispute that was described, consistent with the consent determination of Arbitrator Wynyard, as follows:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 1 September 2015 - deemed
Body part/s referred: The aggravation, acceleration, exacerbation or
deterioration of a bilateral cubital tunnel syndrome (left upper extremity, right upper extremity)
Scarring - TEMSKIMethod of assessment: Whole person impairment
Issues Determined by Arbitrator: refer Certificate of Determination dated 12 October 2020 by Arbitrator John Wynyard.”
As mentioned, the MA issued a MAC in response to that referral on 1 December 2020, in which he certified he had assessed the respondent to have 17% WPI resulting from her injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment on 28 January 2021 in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines.
The parties had filed written submissions relating to the appeal prior to the Registrar’s delegate referring the appeal to the Appeal Panel. The appellant’s submissions are dated 24 December 2020 and the respondent’s are dated 9 January 2021. As a result of its preliminary review, the Appeal Panel decided to invite the parties to make further submissions with respect to two issues. The respondent filed further submissions on 1 February 2021 and the appellant did so on 5 February 2021. The Appeal Panel then reconvened on 22 February 2021, at which time the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel considers the information contained within the material before it, including the MA’s findings from examination, is sufficient to enable it to determine the appeal.
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 MA recorded within Part 4 of the MAC the following symptoms that the respondent reported she presently experiences:
“She complains of numbness and pins and needles in her fingertips and sometimes her
forearms. Both elbows are very sore, more so medially. She rates her elbow pain as
7-8 on a VAS scale of 10. With activities the pain intensifies.When the arm and elbow symptoms intensify, the pins and needles travel proximally from the elbows to the shoulders.
Regarding the pins and needles in her hands, she says that it is a burning type sensation and she in fact describes dysaesthesia. She rates the dysaesthesia as 6 on a VAS scale of 10.
I asked about the surgical scar and she said it is not pleasant. She is conscious of the scar and tries to hide it, and wears long sleeves most times.”
The MA recorded at Part 5 of the MAC the following findings from his examination of the respondent:
“Ms Chauhan is wearing Tubigrips on both arms and removed them without assistance but with some difficulty.
Inspection of the elbows reveals a 7cm scar on the medial aspect of the right elbow.
The scar is slightly hypertrophied and there is discolouration distally.
Both ulnar nerves were palpable and irritable with positive Tinel’s tests, the right greater than left. Right elbow movements were normal. Both wrists were restricted.
Wrist Movements
Movement Right % Upper Extremity Impairment Left % Upper Extremity Impairment Extension 500 2 450 3 Flexion 400 3 400 3 Ulnar deviation 150 3 300 0 Radial deviation 150 1 200 0 Total 9% Total 6% Inspection of the forearms and hands reveals wasting of the left hypothenar eminence. There is decreased sensation in both hands in the ulnar nerve distribution to sharp stimuli, right greater than left.
There was normal power in the left hand but there was Grade 4 power in the right hand in abduction and adduction of the fingers.”
(Bold as per original)
The MA noted that nerve conduction studies of the respondent’s upper limbs that were done on 2 August 2018 were within normal limits. The MA also had regard to a report of Dr Peduta relating to a MRI scan of the respondent’s wrists that was done on 8 July 2016, and noted that the MRI did not reveal any definite features of carpal tunnel, but showed a small multi-locular ganglion on the proximal aspect of the left radio-scapho-capitate ligament and a small slit-like tear in the central portion of TFC in the right wrist and a small dorsal ganglion on the ulnar aspect of the wrist extending from the foveal lamina of the peripheral TFC attachments.
Within Part 7 of the MAC the MA provided a summary of the respondent’s injury and diagnoses in the following terms:
“As a result of the nature and conditions of her work, Ms Chauhan developed bilateral carpal tunnel syndromes and overuse syndrome.
She had surgery to the right elbow (cubital tunnel release).”
The MA assessed the degree of the respondent’s permanent impairment from her injury to be 17% WPI, providing this explanation for how he calculated that at Parts 10a and 10b of the MAC:
“a. My opinion and assessment of whole person impairment
I found restricted range of movement in both wrists (1) (see 10b). I assess 9% right upper extremity impairment and 6% left upper extremity impairment.
I found sensory deficit (2) and motor deficits (3)) in the right ulnar nerve (see 10b). I assess Grade 4 motor deficit (3) (see 10b).
I assess 20% motor deficit. The ulnar nerve above the elbow equates to 46% upper
extremity impairment for motor deficit. 20% of 46% equates to 9.2% which rounds off to 9%.I assess Grade 3 sensory deficit in the right ulnar nerve. I assess 40% sensory deficit.
The ulnar nerve above the elbow for sensory deficit equates to 7%. 40% of 7% equates with 2.8% which rounds off to 3%.
The combined motor and sensory deficit of the right ulnar nerve is 12%.
For the left ulnar nerve I assess Grade 5 motor deficit, 0% impairment (3) (see 10b).
I assess 30% sensory deficit for the left ulnar nerve. 30% of 7% equates to 2.1% which
rounds off to 2%. The total impairment for sensory and motor deficit for the left ulnar nerve is 2%.I combined the impairment for the right ulnar nerve and restricted range of right wrist
movement (12 and 9 = 20%) which equates to 12% WPI.The combined impairment for the left ulnar nerve and restricted left wrist movements is 8% upper extremity impairment which equates to 5% WPI.
There is scarring and under the best fit principle of the TESMKI classification she best fits the descriptors for 1% WPI.
b. An explanation of my calculations (if applicable)
AMA Guides to the Evaluation of Permanent Impairment, 5th Edition:
(1) Pages 467 to 469, Figures 16-28 to 16-31.
(2) Page 482, Table 16-10.(3) Page 484, Table 16-11.”
The MA noted at Part 8e of the MAC that he considered that no proportion of the respondent’s permanent impairment was due to a prior injury or pre-existing condition or abnormality. The MA noted his opinion on that differed from the opinion of Dr Wallace as expressed in Dr Wallace’s report of 19 August 2020. The MA observed in Part 10e of the MAC that:
“The Consent Orders do not state aggravation of a pre-existing condition but rather in the referral of matters for assessment state: The aggravation, acceleration, exacerbation or deterioration of a bilateral cubital tunnel syndrome.
The Claimant to my knowledge and based on the history taken had never suffered from
cubital tunnel syndrome previously. I have therefore made no deduction for pre-existingcondition.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA made an error by diagnosing the respondent’s injury as bilateral carpal tunnel syndrome and overuse syndrome, whereas it had been previously determined by the WCC that the respondent’s injury was aggravation, acceleration, exacerbation or deterioration of her bilateral cubital tunnel syndrome. The appellant notes that was the injury that was the subject of the referral to the MA rather than the injury that the MA diagnosed of bilateral carpal tunnel syndrome and overuse syndrome. The appellant submits that the MA failed to make an assessment in accordance with the referral or in accordance with the determination of the WCC and assessed the respondent’s permanent impairment for a condition which had not been found to be an injury. In its further submissions, in response to the Appeal Panel’s invitation for submissions, the appellant submits that it is not apparent that the respondent’s restricted range of motion of her wrist is associated with cubital tunnel syndrome or whether it is associated with carpal tunnel syndrome or overuse syndrome.
The appellant further submits that because the injury the respondent suffered was an aggravation, acceleration, exacerbation or deterioration of a bilateral cubital tunnel syndrome, the MA made an error by not making any deduction for a pre-existing condition.
In reply, the respondent submits, relying on Haroun v Rail Corporation NSW[1] (Haroun), that the MA made no error by coming to a different clinical opinion from the determination of the WCC regarding the injury she had suffered. The respondent also submits that it was not clear that the MA had disregarded cubital tunnel syndrome as a cause of her impairment, given that the MA had referred to her scarring from the procedure to decompress the right cubital tunnel. The respondent submits that because the MA diagnosed her as having overuse syndrome, which the respondent says is a broad and descriptive term, that the MA incorporated within that diagnosis her condition of cubital tunnel syndrome. In her further submissions to the Appeal Panel, the respondent submits that where the MA used the term “carpal” in Part 7 of the MAC it may have been a typographical error and that that term really should be read as “cubital”.
[1] [2008] NSWCA 192.
The respondent also submits that, relying on Cullen v Woodbrae Holdings Pty Ltd[2] (Cullen) that there was no basis on which the MA could make a deduction under s 323 because she did not have a condition that pre-dated her employment with the appellant. The respondent submits that there was no medical opinion evidence that she had a condition prior to 2008 and the MA specifically found that there was no condition present before 2008.
FINDINGS AND REASONS
[2] [2015] NSWSC 1416.
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.
The Appeal Panel agrees with the respondent that there is no evidence that she had a condition in her upper extremities at the time she commenced her employment with the appellant that contributes to her present impairment from her injury. Consequently, consistent with what was held in Cullen[3], s 323 is simply not engaged in this case.
[3] See [46] of Cullen.
Bearing in mind that there was a finding in the prior proceedings in the WCC, where there was a factual contest between the parties regarding the nature of the workplace injury the appellant suffered, that her injury was an aggravation, acceleration, exacerbation or deterioration of bilateral cubital tunnel syndrome, which finding is binding on the parties, the Appeal Panel’s view is that what the evidence before it reveals is that that condition arose idiopathically at some point in time after the respondent had commenced her employment with the appellant. Further, in the Appeal Panel’s view, having regard to the nature of the work the respondent performed for the appellant, the symptoms the respondent suffers from bilateral cubital tunnel syndrome are almost entirely attributable to the “aggravation, acceleration, exacerbation or deterioration” of that condition due to the work the appellant performed for the respondent. In other words, the extent to which her symptoms are attributable to the condition as it would have been in the event that it had not been aggravated, accelerated, exacerbated or deteriorated due to her employment would have been too minor to merit consideration.
The Appeal Panel also considers that when the MAC is read as a whole, the MA’s reference to “bilateral carpal tunnel syndrome” when providing his summary of the diagnosis for the respondent’s injury in Part 7 of the MAC, contains a typographical error and that the MA was in fact making a diagnosis that the respondent had developed bilateral cubital tunnel syndrome. Relevant to that is that immediately beneath providing that diagnosis the MA noted that the respondent had surgery in the form of cubital tunnel release. Further, within Part 10e of the MAC the MA noted, when explaining that there was no previous pre-existing condition that would allow a deduction to be made under s 323, that the respondent had never previously suffered cubital tunnel syndrome. Further still, the MA specifically examined the respondent for her sensory and motor deficits of the right ulnar nerve and left ulnar nerve. This is the nerve that passes through the cubital passage and if compressed or irritated, can cause pain and also numbness and tingling in the hands and fingers, being the symptoms the respondent has suffered.
The Appeal Panel rejects the respondent’s submission to the effect that it was open to the MA to assess her impairment resulting from a condition that was not the subject of the referral. In the Appeal Panel’s view, Haroun provides no authority for the MA to have done that. What occurred in Haroun’s case is that an arbitrator made a finding, with the consent of the parties in that case, that the effects of the worker’s injuries continued to contribute to the worker’s impairment. The matter was referred to an MA to assess the worker’s permanent impairment resulting from the injury. The MA assessed the worker’s impairment was not due to the injuries the subject of the referral, but to a previous injury or pre-existing condition and hence assessed the worker to have no permanent impairment from the worker’s work injury. The worker appealed against that assessment and the Appeal Panel in that case held that it was the function of the MA, and not the arbitrator, to assess the degree of the worker’s permanent impairment resulting from the injury. The arbitrator could not therefore make a finding, even with the consent of the parties, that the worker’s injuries continued to contribute to impairment.
Handley AJA, with whom McColl JA and McDougall J agreed, held that the Appeal Panel was bound to find that the consent finding that the arbitrator made was irrelevant. Handley AJA held that the scheme of the 1998 Act and the 1987 Act was to have factual and legal issues resolved by an arbitrator, subject to an appeal to the President or a Deputy President, and to have certain medical issues decided by an MA, subject to an appeal to an Appeal Panel. Handley AJA held that a medical dispute of a kind referred in s 326(1), which includes the degree of permanent impairment of a worker as a result of an injury and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, is a matter exclusively within the domain of an MA.
Hence, Haroun is not authority for the proposition for which the respondent contends in this case, being essentially that an MA has power to provide a binding assessment on a matter that is outside the terms of the medical dispute referred to the MA to assess. An MA must issue a Medical Assessment Certificate with respect only to those matters that have been referred to the MA for assessment.[4]
[4] See Aircons Pty Ltd v Registrar The Workers Compensation Commission NSW & Anor [2006] NSWSC 322 at [20] and [21] and Gatt v State of New South Wales [2019] NSWCS 451 at [53]-[69].
In this matter, the MA has made a diagnosis that the respondent suffered overuse syndrome and has examined the respondent with respect to the restricted range of movement she has in her right and left wrists. Insofar as she had restricted range of motion in her wrists, the MA has included a rating for that in his assessment of the respondent’s impairment resulting from her injury. Restricted range of movement of her wrists is in no way a consequence of bilateral cubital tunnel syndrome. Further, [2.9] of the Guidelines requires that if upper extremity impairment results solely from a peripheral nerve injury the assessor should not include impairments from AMA 5 section 16.4 “abnormal motion” for that upper extremity, and that section 16.5 should be used to evaluate the worker’s impairment.
The Appeal Panel observes that the MRI of the respondent’s wrists reveals ganglion and a small tear in the right wrist and a ganglion in the left wrist. It is likely that those conditions were the result of the respondent overusing her wrists, but they are not the result of or in any way related to the respondent’s cubital tunnel syndrome.
Consequently, the MA has made an error by including in his assessment of the degree of the respondent’s permanent impairment from her injury the impairment consequent upon her restricted range of movement of her wrists.
Given that, the MAC contains a demonstrable error. The Appeal Panel must revoke the MAC and reassess the medical dispute that was referred to the MA for assessment, which is the degree of the respondent’s permanent impairment resulting from her injury in the form of an aggravation, acceleration, exacerbation or deterioration of her bilateral cubital tunnel syndrome. The Appeal Panel considers it is able to rely upon the MA’s findings from his examination of the respondent in that he examined the respondent’s sensory and motor deficits relating to the right and left ulnar nerves. The Appeal Panel adopts his findings with respect to that part of his examination.
The ratings of the respondent’s impairment for those deficits are 12% upper extremity impairment for the right ulnar nerve, which equates to 7% WPI, and 2% upper extremity impairment for the left ulnar nerve, which equates to 1% WPI. That combines to 8% WPI. Noting that the respondent is aware of the scar she has from surgery, which she finds unpleasant and tries to hide by wearing long sleeves, the Appeal Panel also considers that her impairment due to her scarring is 1% WPI, which in the Appeal Panel’s view best fits that criteria for that in Table 14.1 of the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 December 2020 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 before 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 Tommasino Mastroianni 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 AMA5 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. Left Upper Extremity | 1/9/2015 | Chapt 2; [2.9] | AMA5 Tables 16-15; | 1% | - | 1% |
| 2. Right Upper Extremity | 1/9/2015 | Chapt 2; [2.9] | AMA5 Tables 16-15; | 7% | - | 7% |
| 3.Scarring | 1/9/2015 | Chapt 14; Table 14-1 | 1% | - | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
Marshal Douglas
Member
Dr Mark Burns
Medical Assessor
Dr John Ashwell
Medical Assessor
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