Zheng v Taosun Glass Pty Ltd
[2024] NSWPICMP 552
•8 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Zheng v Taosun Glass Pty Ltd [2024] NSWPICMP 552 |
| APPELLANT: | Guiling Zheng |
| RESPONDENT: | Taosun Glass Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 8 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker suffered significant injury when caught in a machine; Medical Assessor (MA) assessed left lower extremity and lumbar spine; whether MA provided adequate reasons; finding of “no significant clinical findings” consistent with SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); whether MA appropriately assessed saphenous nerve injury; consideration of Tables 16.10, 16.11 and 17.37 of AMA 5; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 May 2024 Guiling Zheng, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 April 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 ground(s) of appeal on which the appeal is made.
Rule 128 of 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Zheng was employed as a process worker with Taosun Glass Pty Ltd (the respondent). On 13 August 2023, she leant forward and was caught by a machine, resulting in a large tearing flap injury on her left thigh. She has undergone multiple surgeries to repair the damage caused, including cosmetic and apparent nerve damage.
As a result of the accident she suffered injury to her lumbar spine, left lower extremity, and scarring, the scarring being the most significant. She brought a claim to the Personal Injury Commission for lump sum compensation and was referred to a Medical Assessor. Medical Assessor Honeyman initially was referred all three body parts claimed for assessment, but determined that he was unable to assess the scarring. He proceeded to assess the lumbar spine and left lower extremity for a total of 4% whole person impairment. A separate MAC was issued assessing scarring at 10% whole person impairment.
Neither party have taken issue with the assessment of scarring. The appeal is limited to the assessment of the Medical Assessor in relation to the lumbar spine and left lower extremity.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. Whilst a re-examination was requested by the appellant, for the reasons below the Appeal Panel are satisfied that the Medical Assessor did not apply incorrect criteria, and that the MAC does not contain a demonstrable error. Accordingly, there is no need for a re-examination. Further, there is sufficient information contained in the MAC and the material available before the Medical Assessor to determine the appeal.
It is also noted that the appellant indicated in the Form 11 – Application to Appeal that she wished to make oral submissions to the Appeal Panel. No submissions are provided in support of this request as to why it would be necessary or on what basis the material provided in the submissions is not sufficient to determine the appeal. The Appeal Panel determines its own procedures and it is incumbent upon the appellant to advance cogent reasons why an oral hearing should be convened (per Barret JA in Galluzzo v Little [2013] NSWCA 116 at [74]). The Appeal Panel are of the view that an oral hearing is unnecessary and will determine the matter on the papers.
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:
(a) in relation to the lumbar spine, the Medical Assessor failed to provide adequate reasons. Particular reference is made to the conclusion that the appellant had pain without “significant clinical findings”. It is submitted that the Medical Assessor found clinical findings, but did not explain what they were, and
(b) in relation to the left lower extremity, the Medical Assessor failed to assess the entire left lower extremity of the appellant as per the application made by the injured worker. In relation to the peripheral nerve component, the Medical Assessor failed to consider Tables 16.10 and 16.11 of AMA 5. The appellant also disputes that she had normal range of motion during the assessment.
In reply, the respondent submits that:
(a) the Medical Assessor has addressed and documented the findings on examination. Dr Shahzad did not provide any basis for his categorisation of DRE category II and Dr Millons also assessed DRE category I, and
(b) the Medical Assessor assessed all joints finding a normal range of motion, and correctly assessed the saphenous nerve injury.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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.
The appellant has alleged that the Medical Assessor has erred in his assessment of the lumbar spine and left lower extremity. The Appeal Panel will deal with each body part separately considering the submissions as presented by the appellant.
Lumbar spine
The appellant submits that the Medical Assessor has not provided adequate reasons for his conclusion. In particular, the appellant takes issue with the reasons whereby the Medical Assessor concluded that there was pain “without significant clinical findings”.
When considering whether a Medical Assessor, or indeed any administrative decision maker, has provided adequate reasons, those reasons must be read as a whole. Whilst the words “significant” have been particularly focussed upon by the appellant, those words must be considered in accordance with all of the reasons provided in relation to the body part being assessed.
The Guidelines provide a series of principles of assessment. Relevantly, cl 1.6 provides:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information…”
The conclusion reached by the Medical Assessor appears on page 5 of the MAC:
“Lumbar spine is assessed using DRE criteria as in table 15-3.
She has pain without significant clinical findings. This suggests category 1. WPI 0%.”
The Medical Assessor provides his finding on physical examination, in relation to the lumbar spine, on page 4 of the MAC:
“I examined her low back. She had normal lordosis. Her ranges of motion were within normal and equal. She had no muscle guarding.”
The Appeal Panel is satisfied that the “clinical findings” referred to in the conclusion are the clinical findings he made on examination, that is the paragraph set out above. The Medical Assessor has referred to the criteria for the assessment of the lumbar spine, being DRE in Table 15-3 of AMA 5. That is the correct method of assessment, per cl 4.5 of the Guidelines. It is noted that Table 15-3, in the criteria for DRE lumbar category I, it is stated:
“No significant clinical findings, no observed muscle guarding or spasm, no documentable neurologic impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness, no fractures”.
Given the Table specifically refers to “no significant clinical findings” as part of the criteria for DRE category I, it cannot be said that the Medical Assessor has erred in making reference directly to that criterion. In contrast, the criteria for DRE category II in Table 15-3 relevantly provides:
“Clinical history and examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings, no alteration of the structural integrity and no significant radiculopathy.”
DRE category II is also specifically addressed in the Guidelines. Clause 4.18 provides:
“DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present. In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips. In assigning category DRE II, the assessor must provide detailed reasons why the category was chosen.”
Although brief, the Medical Assessor’s findings on clinical examination address the relevant criteria for the lumbar spine under Table 15-3, applying the DRE method as set out in the Guidelines. She had no muscle guarding, and normal and equal range of motion. There was no documented evidence of an alteration in structural integrity and no documented neurologic impairment. The above findings, as provided in the MAC, are entirely consistent with DRE category I. The Medical Assessor’s reference to no “significant clinical findings” is as per the relevant criteria.
The Medical Assessor also noted numbness in the leg from the scar to the heel. It is the Appeal Panel’s view that this finding arises out of the significant scar injury suffered by the appellant, and not related to the lumbar spine. It does not conform to any relevant dermatome arising out of the spine.
Accordingly the MAC does not contain a demonstrable error in the assessment of the lumbar spine.
Left lower extremity
Here the appellant submits that the Medical Assessor failed to assess the whole limb, in comparison with the report of Dr Shahzad.
On examination, the Medical Assessor starts by describing the appearance of the appellant:
“On examination I note that she looks both distressed (anxious) and depressed and appears to be struggling with understanding the processes in the compensation system.
She does not move freely and seems to use her right leg with some care.
She let me examine her legs by only lifting her trousers and was reluctant to remove to her underwear.”
The Medical Assessor then goes on to assess the worker’s scar, which is not relevant to the present appeal. In relation to the leg, he records:
“She had numbness down the inside of her leg from the scar to the medial sides of the heel. She described a sensation within this area, probably tingling but we could be lost in translation.
Her knee range of motions was essentially normal, but I felt her reluctance to flex the left knee was caused by anxiety or the abnormal feelings about the scar.”
The Appeal Panel do not accept the appellant’s submission that the Medical Assessor did not examine the whole limb. The Medical Assessor clearly examined the scar present in the thigh, with a photograph included in the MAC. He describes a loss of sensation in the limb. He records the appellant’s knee range of motion. The Appeal Panel is of the view that describing the range of motion as “essentially normal” is potentially loose language. However, it is clear that the Medical Assessor assessed all joints. He states as much on page 5 of the MAC: “The Left lower limb was assessed to have normal range of motion in all joints”.
The appellant refers to the paragraph assessing the numbness and sensation loss in the leg:
"The significant findings are numbness and sensation in the distribution of the saphenous nerve as in T17.8 (p551). The saphenous nerve only has a sensory component. Example 17.17 provides a near identical example and uses table T17-37. Loss of femoral suggests 2% LEI and dysthesia 7% LEI. These combine and convert to 4% WPI (table 17-3).”
The reference to “significant findings” does not mean that the Medical Assessor did not assess the remainder of the limb as the appellant submits. It is clear from the preceding paragraph that he did and found a normal range of motion. Whilst the use of exact figures of measurement may be preferred, that is not a requirement of the Guidelines. Where range of motion is normal, it is sufficient to provide reasons to that effect. There is no ambiguity or uncertainty as to the actual findings on examination, as normal range of motion attracts no whole person impairment. The findings of Dr Shahzad, referred to in the appellant’s submissions, demonstrate that at the time of that assessment the appellant had some restriction in her range of motion. That was not present before the Medical Assessor and does not constitute an error.
The Appeal Panel are satisfied that the Medical Assessor has undertaken an assessment of the entire limb as required.
The appellant goes on to dispute that she has never had a normal range of motion since the work accident, and had a demonstrated abnormal range of motion on the day of assessment. This submission is without foundation and cannot be accepted. The measurement of range of motion is recorded in the MAC. That is the basis of the assessment and the fact that it differs to those provided in earlier assessments is not relevant to the assessment performed by the Medical Assessor and cannot constitute an appealable error.
The final submission provided concerns the assessment of the peripheral nerve injury. The appellant submits that the Medical Assessor failed to consider Table 16.10 and 16.11 when assessing the sensory loss under Table 17.37.
The Medical Assessor’s assessment of sensory loss is set out above, based on the saphenous nerve. The appellant correctly refers to Table 17-37 of AMA 5, which is for impairments due to nerve deficits. The saphenous nerve is the sensory component of the femoral nerve. The maximum ratings are 2% lower extremity impairment for sensory loss and 7% lower extremity impairment for dysesthesia. These are the precise figures assessed by the Medical Assessor. It was not open to him, assessing in accordance with the Guidelines, to provide a higher figure. There was no loss of motor function in the femoral nerve observed, consistent with that assessed by Dr Shahzad, who provides “There is no motor deficit”. No assessor has found any motor deficit.
It is noted that cl 17.2l of AMA 5, on page 550, provides guidance for the assessment of peripheral nerve injuries, with reference to Table 16-10 and 16-11 for “partial sensory and motor deficit”. Application of either of those tables would result in a lower assessment of impairment for the worker. The Appeal Panel are satisfied that on examination, the Medical Assessor found total sensory loss and dysthesia, and accordingly the application of Table 16-10 was not required. It is however noted that the assessment of Dr Shahzad found 80% deficit for both and applied Table 16-10. In present circumstances, the Appeal Panel do not view this as appropriate.
Accordingly, as the Medical Assessor has provided the maximum possible assessment for the peripheral nerve injury allowed under AMA 5, no error can be identified.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 April 2024 should be confirmed.
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