Zaya v A & W Hollier Wholesale Distributors Pty Ltd
[2022] NSWPICMP 291
•15 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Zaya v A & W Hollier Wholesale Distributors Pty Ltd [2022] NSWPICMP 291 |
| APPELLANT: | Shant Zaya |
| RESPONDENT: | A & W Hollier Wholesale Distributors Pty Ltd |
| APPEAL PANEL: | Member William Dalley Medical Assessor James Bodel Medical Assessor Mark Burns |
| DATE OF DECISION: | 15 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by the applicant worker against assessment of impairment in respect of injury to the cervical spine and bilateral shoulders; with respect to the cervical spine, the appellant alleged that the Medical Assessor (MA), in assessing the appellant as within DRE I, had made no findings with respect to dysmetria whereas the appellant’s independent medical expert had found dysmetria and consequently assessed the appellant as DRE Class II; Held – the MA had noted a finding of symmetrical survival motion constituting a finding of no dysmetria; no error or adoption of incorrect criteria was established in respect of the cervical spine; with respect to the shoulders the appellant submitted that he should have been assessed by reference to range of motion and that the MA had been unduly influenced by the medical reports in evidence not to accept range of motion as reliable; the MA had conducted his own examination and had determined that assessment of range of motion was unreliable and had accordingly assessed the appellant by reference to an analogous condition; no error or adoption of incorrect criteria was established in respect of the upper extremities and the Medical Assessment Certificate was confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 April 2022 the appellant, Shant Zaya, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 March 2022.
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.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, re-issued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Zaya suffered an injury to his neck and right shoulder on 8 February 2016 in the course of his employment with the respondent, A & W Hollier Wholesale Distributors Pty Ltd. The injuries were treated conservatively without improvement. Dr Doron Sher, orthopaedic surgeon, examined Mr Zaya in June 2016 on referral from Mr Zaya’s general practitioner. Dr Sher suspected a diagnosis of complex regional pain syndrome.
Mr Zaya was examined by Dr James Powell, orthopaedic surgeon, at the request of the insurer on 13 December 2016. Dr Powell did not diagnose any specific orthopaedic condition, noting “no structural injury has been identified but he has continued to have chronic pain difficulties.” Injury to the cervical spine and right shoulder were accepted by the workers compensation insurer.
Mr Zaya developed symptoms in the left shoulder. Noting a request for an ultrasound guided steroid injection to the left shoulder, Dr Robert Breit, orthopaedic surgeon, examined Mr Zaya on 19 June 2019 and reported that, in his opinion, there had been “no injury to the left shoulder and no secondary injury”.
Mr Zaya was examined by an orthopaedic surgeon, Dr Brian Stephenson, on 19 October 2020 at the request of Mr Zaya’s solicitors to assess impairment as a result of the subject injury for the purposes of a claim for lump-sum compensation pursuant to s 66 of the Workers Compensation Act 1987.
Dr Stephenson assessed Mr Zaya as suffering 5% whole person impairment (WPI) as a result of injury to the cervical spine, 7% WPI respect of injury to the right shoulder and 7% WPI in respect of the consequential condition in the left shoulder, combined pursuant to the Combined Table[1] to give 18% WPI as a result of the subject injury.
[1] AMA 5, page 604.
The insurer had Mr Zaya examined again by Dr Breit in January 2021. Dr Breit was of the opinion that Mr Zaya had suffered no permanent impairment from any musculoskeletal injury. The insurer accordingly disputed Mr Zaya’s claim for lump-sum compensation, asserting that injury to the cervical spine and right shoulder had given rise to no impairment and denying that Mr Zaya had suffered a pathological condition in the left shoulder as a result of the subject injury.
The appellant commenced proceedings in the Personal Injury Commission (the Commission). The claim proceeded to hearing before a Commission member on 22 April 2021. The Commission determined that Mr Zaya had suffered a consequential condition in the left shoulder as a result of injury to the neck and right shoulder on 8 February 2016. The claim was referred for assessment to the Medical Assessor who examined Mr Zaya on 15 March 2022.
The Medical Assessor assessed Mr Zaya as suffering 4% WPI as a result of the subject injury. The Medical Assessor assessed Mr Zaya as having 2% WPI in respect of the right upper extremity (shoulder), 2% WPI in respect of the left upper extremity (shoulder) and 0% WPI in respect of the cervical spine.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant requested that Mr Zaya should be re-examined by a Medical Assessor member of the Panel. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because sufficient information was available to the Panel to determine the appeal. The Panel is not entitled to undertake re-examination of a worker to determine whether a ground of appeal has been made out. A re-examination is undertaken where error has been established, but the Panel is not able to issue a fresh certificate without such an assessment.[2]
[2] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33].
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor fell into error in assessing Mr Zaya as falling within DRE[3] I with respect to assessment of the cervical spine and by failing to assess impairment of the right and left upper extremities by reference to range of motion.
[3] Diagnostic Related Estimate.
In reply, the respondent submits that assessment of Mr Zaya as falling within DRE Cervical Class I was open to the Medical Assessor based on the evidence and his examination. The Medical Assessor correctly applied the Guidelines having observed that the range of motion demonstrated by Mr Zaya was inconsistent and unreliable.
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[4] 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.
[4] [2006] NSWCA 284.
The appellant alleged error with respect to assessment of the cervical spine and the bilateral shoulders. It is convenient to consider assessment of the cervical spine and the assessment of the upper extremities separately.
Cervical spine
The Medical Assessor assessed Mr Zaya pursuant to chapter 4 of the Guidelines using diagnosis related estimates (DREs)[5]. He noted Mr Zaya’s complaints of neck pain on the right side and mainly behind the ear with tingling in the fingers and occasional absence of feeling in the left hand.
[5] Guidelines, chapter 4.1, page 24.
The Medical Assessor noted the report of the MRI scan dated 20 April 2016; “no significant spinal canal or exit foraminal stenosis detected in the cervical spine”.
Upon examination the Medical Assessor noted “On casual observation he displayed a full range of movement of the cervical spine but when being specifically examined he did this slowly with cog-wheeling but limitation was symmetrical” and “There was tenderness to light touch involving the cervical spine and both shoulders globally. This included soft tissues and bony prominences. There was, however, no evidence of muscle guarding or spasm.”
The Medical Assessor summarised injuries and diagnosis:
“I expect that Mr Zaya developed soft tissue injury to the right neck/shoulder junction when impacted by pallets and boxes at work over five years ago on 8 February 2016. It has been deemed that he developed a consequential injury to his contralateral shoulder as a result of overuse.
There was a suggestion at one stage that he developed CRPS[6] but there was no evidence of this on his current presentation.”
[6] Complex Regional Pain Syndrome.
Under the heading “consistency of presentation” the Medical Assessor reported: “There was significant symptom magnification and voluntary restriction of range of movement. The range of movement of the cervical spine varied at different stages during his assessment.”
The Medical Assessor assessed Mr Zaya as DRE Cervical Category I at 0% WPI. He explained: “There is no evidence of muscle guarding or spasm. There is no true dysmetria. There are no anatomically localised non-verifiable radicular complain(t)s and no other features upon which to assess impairment.”
The Medical Assessor also discussed the report of Dr Stephenson who had assessed Mr Zaya as DRE Cervical Category II on the basis of dysmetria which the Medical Assessor had not found to be present when he examined Mr Zaya.
The appellant submitted:
“When the MA assessed DRE I on the basis of the clinical findings as set out on page 3 of his MAC, he (did) not make any findings as to Dysmetria of movement. The MA then on page 5 under paragraph 10.b found ‘no true Dysmetria’. This was at odds with the finding of Dr Stephenson who at page 5 of his report of 19 October 2020 found ‘some Asymmetrical loss of range of motion’ and so found a WPI rating of DRE 2 for the cervical spine.”
The appellant further submitted that the finding that there was “”no true dysmetria” constituted a finding on credit; “in that he did not believe or accept the complaints made by the appellant”. The appellant submitted that this constituted demonstrable error “when he in effect made a credit finding, something he is not entitled to (see Nicol v Macquarie University [2018] NSWSC 530)”.
The Panel does not accept either of those submissions. The Medical Assessor was required by the Guidelines to assess Mr Zaya as he presented on the day of assessment.[7] The fact that the Medical Assessor’s examination of Mr Zaya disclosed a range of motion which differed from that observed by Dr Stephenson did not disclose error. The Medical Assessor reported his observation at the time of examination, noting respect to neck movement “limitation was symmetrical”.
[7] Guidelines, chapter 1.6 a, page 3.
The Medical Assessor dealt with the criterion “dysmetria” noting “limitation was symmetrical”[8]. The Medical Assessor specifically noted that Dr Stephenson had observed dysmetria but noted that this was not present at the time of examination by the Medical Assessor. The appellant’s submission that the Medical Assessor “did not make any findings at to Dysmetria of movement” is not made out.
[8] MAC, page 3, paragraph 5.
The Panel does not accept that the Medical Assessor’s finding that there was no true dysmetria was a finding based on credit. This was a finding based on clinical observation both at the time when Mr Zaya was undertaking active demonstration of the range of cervical motion as well as throughout the course of examination. The complaints of the appellant were not relevant to that observation.
Although it is unnecessary to decide, the Panel does not accept that Harrison AsJ in Nicol v Macquarie University[9] (Nicol) held that a Medical Assessor was not entitled to make a finding based on credit. The only reference to “credit” in Her Honour’s decision is found at [102] where Her Honour noted:
“Mr Nichol also submitted that in Frost[10], while it may well have been a possibility that on the known materials there was a dispute as to the credit of Ms Kourouche and that her version of events may not be accepted, this judicial review of apportionment and the approach to it adopted by the Appeal Panel was never adverted to on the known materials.”
[9] [2018] NSWSC 530.
[10] Frost v Kourouche [2014] NSWCA 39.
The Panel does not accept that the appellant has established demonstrable error or the use of incorrect criteria in the assessment of the cervical spine and this ground of appeal fails.
Upper extremities (shoulders)
The Medical Assessor reported Mr Zaya’s complaints of bilateral shoulder pain at rest, with an increase in symptoms on movement. He noted that Mr Zaya complained that he was unable to sleep on either shoulder and could not lift objects with weakness in the arms. He noted “He finds that even the slightest movement increases his symptoms and movement is significantly restricted.”
The Medical Assessor noted the reports of the investigations of the shoulders. The report of the MRI scan of the right shoulder with 20 April 2016 showed no evidence of any rotator cuff tear, mild subdeltoid bursitis with no other significant abnormality identified. The bone scan on 6 July 2016 showed some evidence of degenerative change in the right glenohumeral joint, more marked on the right but with a major functional diagnosis of complex regional pain syndrome. Left shoulder X-ray and ultrasound on 14 May 2019 demonstrated widened acromioclavicular joint “probably related to a previous subluxation”. The ultrasound noted subacromial – subdeltoid bursal inflammation.
Under the heading of injuries and diagnoses the Medical Assessor reported:
“I expect Mr Zaya developed soft tissue injury to the right neck/shoulder junction when impacted by pallets and boxes at work over five years ago on 8 February 2016. It has been deemed that he developed a consequential injury to his contralateral shoulder as a result of overuse.”
Upon physical examination the Medical Assessor found “good muscular development involving the upper extremities with no evidence of wasting of the muscles around the shoulders or the upper arms.” He reported:
“Range of movement of the shoulders was assessed and was inconsistent to the extent that a goniometer was not used. He attempted to elevate the shoulders to the horizontal level although on repeated testing it was noted that there was sometimes increases by 20° and decreases by 20° and both shoulder movements were at all times symmetrical. Rotation was through a variable extent at different times during his assessment but significantly limited on formal assessment. There was tenderness to light touch involving the cervical spine and both shoulders globally. This included soft tissues and bony prominences.”
With respect to consistency, the Medical Assessor noted “Movement of the shoulders was symmetrical which is not medically consistent. All movement was done at the GH joint with no attempt to use accessory mechanisms to elevate the arms.”
The Medical Assessor assessed Mr Zaya as having 2% WPI for each shoulder. He said:
“With regard to the shoulders, I refer to the WorkCover Guidelines, Section 1.36, which refers to inconsistent presentation. Voluntary restriction of range of movement and inconsistency did not allow full range of movement to be used to assess impairment. According to section 1.23, under these conditions an analogous condition can be used to assess impairment. I refer to section 2.16 where a diagnosis of impingement is made when range of movement isn’t used to assess impairment and this is 2% WPI for each shoulder.”
The appellant submitted: “The MA committed a demonstrable error by not assessing the appellant’s shoulders by reference to ‘range of movement’ through perceived inability to accurately make such an assessment”.
The appellant submitted that the Medical Assessor had reports from Dr Stephenson who had made his assessment based upon measurement of range of motion. The appellant submitted;
“The AMS [sic - Medical Assessor] by not making an assessment based on ‘range of movement’ was compromised in;
a. his assessment of the whole person impairment of the shoulders.
b. again making in effect a credit assessment which he was not entitled to do (see above).”
The Panel does not accept that submission. As noted by the respondent in its submissions, Medical Assessors are required by the Guidelines “to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injury/conditions.”[11].
[11] Guidelines, chapter 1.16b.
Chapter 1.36 of the Guidelines provides:
“AMA 5 (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgement when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reasons for the modification in writing.’ This paragraph applies to inconsistent presentation only.”
It is apparent from the MAC that the Medical Assessor observed the range of motion with respect to Mr Zaya’s shoulders both throughout the course of the examination and upon formal examination of each shoulder. The Medical Assessor noted that he had repeated the testing of the range of motion and was satisfied that those observations did not permit him to assess Mr Zaya by reference to range of motion in the shoulders because of inconsistency.
Having made that observation, the Medical Assessor appropriately applied the Guidelines, explaining that he was modifying the unreliable results by reference to the assessment of an analogous condition, impingement, in order to assess the extent of impairment.
The Panel does not accept that this was a finding on credit. The Medical Assessor observed inconsistent ranges of motion in the shoulders and accordingly was unable to rely on range of motion as an accurate assessment of upper extremity impairment.
The appellant further submitted that:
“The fact that other doctor’s (sic) (particularly Dr Breit) made comment that there was abnormal illness behaviour effecting the shoulders at the time of their examination is irrelevant. What the MA must consider (is) his own clinical examination and not be influenced by the comments of other doctors, clearly at page 5 of the MAC at paragraph 10.c it is clear that the MA allowed the comments of Drs Sher, Hassan Panjratan and Breit to influence his assessment of the appellant, and so let himself be dragged into demonstrable error.”
The Panel does not accept that submission. The opinion of other medical experts is not irrelevant to the Medical Assessor’s task. Paragraph 1.6 of the Guidelines requires the Medical Assessor to take into account “the claimant’s relevant medical history and all available relevant medical information” to make the assessment. While it is true that the Medical Assessor “must consider his own clinical examination”, a Medical Assessor conducts the assessment in the light of the evidence, including the opinion of other medical experts.
Section 325 of the 1998 Act relevantly provides:
“325 MEDICAL ASSESSMENT CERTIFICATE
(1) The medical assessor to whom a medical dispute is referred is to give a certificate (a ‘medical assessment certificate’) as to the matters referred for assessment.
(2) A medical assessment certificate is to be in a form approved by the President and is to--
(a) set out details of the matters referred for assessment, and
(b) certify as to the medical assessor's assessment with respect to those matters, and
(c) set out the medical assessor's reasons for that assessment, and
(d) set out the facts on which that assessment is based.
(3) …..
(4) …..”.
In accordance with the approved form, the Medical Assessor was required to provide “My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.[12]” The Medical Assessor noted the reports of the orthopaedic surgeon who had treated Mr Zaya, Dr Sher, noting that doctor’s opinion that Mr Zaya’s condition was “as a result of pain behaviour and there was nothing he could offer him”. He noted the reports of the treating neurologist, Dr Hassan, who had reported normal EMG studies and who had expressed the opinion that “there was no neurological cause for Mr Zaya’s symptoms and there was nothing he could offer him”.
[12] MAC, page 5, paragraph 10.c.
The Medical Assessor also noted the reports of Dr Panjratan who could find no physical diagnosis to explain Mr Zaya’s symptomatology as well as the reports of Dr Breit who had diagnosed a “factitious disorder noting Mr Zaya’s symptoms magnification and voluntary restriction of range of movement”. The Medical Assessor also noted the report of Dr Stephenson. The Panel accepts that the Guidelines[13] required the Medical Assessor to take into account the opinion of other medical experts whose evidence was before him.
[13] At paragraph 1.6.
The appellant submitted:
“The criticism of Dr Stephenson (in paragraph 10.c of the MAC) concerning the fact that both shoulders suffered a similar range of movements after the injury and that Dr Stephenson made a WPI assessment notwithstanding this clinical finding shows that the MA allowed his unfavourable opinion of the appellant to colour his opinion of Dr Stephenson’s report, so falling into demonstrable error.”
The Medical Assessor stated at 10.c:
“Dr B Stephenson, Orthopaedic Surgeon, supplied a medicolegal report dated 26 October 2020. Dr Stephenson found symmetrical restriction of range of movement of both shoulders and did not comment on the fact this was not medically consistent. He estimated 7% WPI for each. He didn’t comment on whether there was voluntary restriction of range of movement. He estimated DRE Cervical Category 2 on the basis of dysmetria which was not present on my assessment today. Interestingly, he didn’t make an addition for ADLs.”
The Panel does not accept that Dr Stephenson’s “clinical finding shows that the MA allowed his unfavourable opinion of the appellant to colour his opinion of Dr Stephenson’s report”. Dr Stephenson at the time of his examination found symmetrical movement. That was not the case when the Medical Assessor assessed Mr Zaya. It was open to the Medical Assessor to note that Dr Stephenson had not commented on whether this was medically consistent or whether there was voluntary restriction of range of movement. The Medical Assessor was entitled to rely on his own assessment in the light of the opinion of other medical experts that were in evidence.
There is no indication on the face of the MAC that the Medical Assessor assessed Mr Zaya other than in accordance with his own observations performed in the light of the evidence and in accordance with the relevant Guidelines. No demonstrable error or use of incorrect criteria has been made out and this ground of appeal must also fail.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 March 2022 should be confirmed.
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