Young v Woolworths Group Limited
[2021] NSWPICMP 52
•19 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Young v Woolworths Group Limited [2021] NSWPICMP 52 |
| APPELLANT: | Bradley Young |
| RESPONDENT: | Woolworths Group Limited |
| APPEAL PANEL: | Member John Wynyard Dr Gregory McGroder Dr James Bodel |
| DATE OF DECISION: | 19 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of 14% WPI to left shoulder and cervical spine; Held- six grounds of appeal rejected as without merit; challenge to Medical Assessor’s qualifications specious; allegation that Medical Assessor failed to give reasons for finding radiculopathy without substance; challenge to reasons for assessing lumbar spine totally without merit; challenge regarding statement of Medical Assessor not accompanied by submissions and accordingly meaningless; alleged error re hand dominance irrelevant and difficult to comprehend: MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 November 2020 Bradley Young, the appellant lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Tim Anderson, the then Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 19 October 2020.
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.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The 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 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 28 July 2020 a delegate of the Registrar referred this matter to the AMS for an assessment of WPI to the cervical spine and left upper extremity (shoulder) caused by injury on 23 June 2018. The referral followed a determination by an arbitrator on 15 April 2020.
Mr Young sustained injuries to his left shoulder and neck whilst unloading a large delivery of beer and wine at the BWS outlet at Corowa.
He has received conservative treatment including cortisone injections which were of short term benefit only.
The AMS found a combined value of 14% WPI.
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 WorkCover Medical Assessment Guidelines.
The appellant did not seek to be re-examined by an AMS who is a member of the Appeal Panel.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the AMS 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.
In his amended submissions of 3 November 2020 Mr Young asserted that the AMS made six demonstrable errors, namely:
(a) wrongly asserting that no part of the claim was outside his field of expertise;
(b) the AMS failed to explain why he was "unable to unequivocally demonstrate radiculopathy";
(c) the AMS failed to give any explanation or reason for giving the applicant 5% WPI at paragraph 8(b) ;
(d) the AMS failed to explain why he was "unable to convincingly demonstrate radiculopathy" in paragraph 10(c);
(e) the AMS failed to explain that whilst his findings were not all that dissimilar to another expert’s opinion in respect of the left shoulder, the AMS assessed an 8% whilst the other expert assessed 11% WPI in respect of the left shoulder and the AMS has calculated 8%, and
(f) the AMS “incorrectly determined and has failed to consider” hand dominance.
Wrongly asserting that no part of the claim was outside his field of expertise
This submission that the AMS’s speciality was described as “occupational physician”. The demonstrable error was said to be that the AMS did not explain how such a description qualified him to assess an orthopaedic injury.
Discussion
This matter may be dealt with shortly. Chapter 1.40 which provides relevantly[1]:
“The [AMS] will have qualifications, training and experience relevant to the body system being assessed. The [AMS] will have successfully concluded requisite training in using the Guidelines for each body system they intend on assessing (sic). They will be listed as a trained assessor of permanent impairment for each relevant body system(s) on the State Insurance Regulatory Authority website at sira.nsw.gov.au”
[1] Guides page 7.
We find the submission to be specious. The name of the proposed AMS for referred injury is notified to the parties prior to the assessment, no objection was made to the appointment of this AMS by the appellant and it has not been suggested that the appointment of the AMS has been in any way irregular.
It has not been suggested that the AMS is not listed as a trained assessor for orthopaedic injuries.
We agree with the respondent that this submission is also mischievous.
The AMS failed to explain why he was "unable to unequivocally demonstrate radiculopathy"
In his findings on physical examination, the AMS considered the question of radiculopathy. He said:[2]
“Sensation was altered in a rather patchy distribution down the left arm, which would most closely be associated with the C7 dermatomal distribution. Reflexes were difficult to demonstrate but were present and equivalent at the elbows (C5 and 7) and at the wrists (C6).”
[2] Appeal papers page 19.
At paragraph 7 the AMS said:
“Whilst there are some neurological features radiating down the left arm, these were not sufficient to generate a diagnosis of radiculopathy. His clinical management remains conservative.”
In giving an explanation of his calculation, at paragraph 10b the AMS said:[3]
“……. As already advised, I was unable to unequivocally demonstrate radiculopathy.”
Submissions
[3] Appeal papers page 21.
The appellant submitted that the AMS did not give any reasons as to why he was unable to unequivocally demonstrate radiculopathy, whereas on the other hand the medico-legal expert retained by Mr Young, Dr Gehr was able to do so “with confidence.” This was “of great importance,” we were advised.
Discussion
In the context of the above comments by the AMS we find it difficult to comprehend the appellant’s submission that his comment was “without reason.” As can be seen, the AMS explained in his summary that his finding was based on his examination. It is nothing to the point that the appellant’s medico-legal expert had a different opinion. We note that in any event the AMS explained at [10c] that he had read Dr Gehr’s report of 9 July 2019, but that he was “unable to convincingly demonstrate radiculopathy” and accordingly could not find a DRE III cervical category, as had Dr Gehr.
The reasons given for his findings were adequate, and conformed to the standard required, which we have discussed at the outset of these reasons in considering Vegan.
In the chapter dealing with the spine, the Guides have specific criteria to be found before radiculopathy can be established at Chapter 4.27[4]. It is not necessary for the AMS to provide a detailed explanation of the criteria applied in reaching his professional judgment but simply to explain why he reached the conclusion he did.
[4] Guides p 27.
This challenge is also without substance is dismissed.
The AMS failed to explain why he was "unable to convincingly demonstrate radiculopathy" in paragraph 10(c)
Although this issue was listed as being fourth, the appellant promoted it when he came to making submissions. We have already discussed this point when dealing with the question of adequacy of reasons.
However, we repeat that at paragraph [10c], the AMS said:
“…This was by Specialist Orthopaedic Surgeon, Dr Eugene Gehr in his report of 09/07/19. Dr Gehr assesses the cervical spine as DRE III. I was unable to convincingly demonstrate radiculopathy to achieve this result. We have both calculated the left shoulder impairment due to the restricted range of movement. Our findings are not all that dissimilar.”
Submission
The appellant submitted that the AMS “does not explain” what was meant by the words “unable to convincingly demonstrate radiculopathy.” This was “of great importance.”
Discussion
For the reasons given above, there is no substance in the allegation that the AMS failed to explain the phrase complained of. He explained that his findings on examination, although showing some neurological features in the left arm, were not sufficient to generate a diagnosis of radiculopathy. As indicated above, the explanation by the AMS was adequate, and no error has been demonstrated.
The AMS failed to give any explanation or reason for giving the applicant 5% WPI at paragraph 8(b)
In keeping with the general standard of preparation of this appeal, the appellant erred in referring to paragraph “8(b).” He clearly meant paragraph 10(b), where the AMS said:[5]
“This places him into DRE Cervical Category II, which carries a whole person impairment ranging between 5% and 8%, depending on the activities of daily living. For this he would reasonably attract a further 2%, giving 7%.”
Submission
[5] Appeal papers page 21.
The appellant submitted that the AMS fell into error as he failed to explain why he chose the figure of 5% before adding 2%.
Discussion
A perusal of the above statement will show that the AMS said that he was awarding a further 2% for the activities of daily living. This is in keeping with the manner in which assessments have been made in accordance with the AMA 5 Guidelines for over 10 years.
This ground is also dismissed as being totally without merit.
The AMS failed to explain that whilst “our findings were not all that dissimilar” when a Specialist Orthopaedic Surgeon has calculated 11% WPI in respect of the left shoulder and the AMS has calculated 8%
The appellant did not make any submissions as to this allegation. A reading of the MAC issued by the AMS reveals without error the basis for his assessment.
This ground is also dismissed. Without any explanation of why the error had been alleged, it was meaningless and also without merit.
The AMS “incorrectly determined and has failed to consider” hand dominance
This ground was added as an amendment and the appellant submitted that the AMS had not considered his hand dominance in determining disability of the left upper extremity as the worker is left hand dominant whereas the AMS indicated that he was right handed.
The AMS noted that the hand dominance of the appellant was that he was right hand dominant.[6]
[6] Appeal papers page 17.
In his findings on physical examination, the AMS noted “rather ironically, the right upper arm was 0.5cms in circumference than the left.” It is clear that the AMS did in fact mistake the worker as being right handed, however, nothing turns on that error.
We were unable to comprehend the meaning of the appellant’s submission. We could not find any relevance in the error that was relevant to the assessment the AMS was required to make. The referral sought an assessment of WPI to the cervical spine and the left upper extremity (shoulder). Whether the worker was right or left handed was not a relevant consideration. The AMS noted, as we have indicated, that the right upper arm was 5 cm less in circumference but that did not infer with the measurement of range of motion by which shoulder impairments are assessed.
The grounds of appeal are without merit and the matter is dismissed.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 October 2020 should be confirmed.
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