Zrnic v Filippello
[2024] NSWPICMP 485
•18 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Zrnic v Filippello & Anor [2024] NSWPICMP 485 |
| APPELLANT: | Lucija Zrnic |
| FIRST RESPONDENT: SECOND RESPONDENT: | Frank Filippello Lucy Filipello |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 18 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against section 323 deductions regarding both shoulders; Medical Assessor (MA) stated applicant inconsistent; MA averaged the range of motion measurements over three examinations by different specialists, including his own, and made a deduction; respondent conceded error but argued Chapter 1.36 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, should apply instead; respondent did not cross-appeal and procedural fairness potentially denied; appellant had “no issue” with Medical Appeal Panel applying Chapter 1.36; Held – Medical Assessment Certificate amended and confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 December 2023 Lucija Zrnic, the appellant worker lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 November 2023.
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 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 21 July 2023 this matter was referred to the Medical Assessor for an assessment of WPI caused by injury to the cervical spine, right upper extremity, left upper extremity and digestive system which occurred on 4 January 2019.
Ms Zrnic was employed as a deli assistant at an IGA supermarket in Kearns. She developed pain, mostly in her neck, radiating into her shoulders.
She was treated conservatively with physiotherapy and hydrotherapy.
Specialist opinion was that the conservative management should continue. It was suggested that pain management should be undertaken but this did not happen.
She medicated on analgesics which included Codeine and she also took anti-inflammatories. She was concerned about developing haemorrhoids. On endoscopy and colonoscopy in 2020 it was identified that she had Helicobacter pylori which was successfully treated.
The Medical Assessor certified a combined table 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 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 in view of the submissions lodged in answer to our call for submissions as we set out below.
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 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.
The MAC
The Medical Assessor took a history of Ms Zrnic’s prior accidents, injuries or conditions:[1]
“In 1998 when she was working for Viscount Plastics, apparently she experienced a strain condition of her neck, shoulders and back. This is described to have resolved.
In December, either 2020 or 2021, she was apparently a front seat passenger in a car which was involved in a rear-end vehicle accident. As a result of this event, she describes having hurt her neck, back and her right arm and leg. No further details were forthcoming.”
[1] Appeal papers page 20.
The Medical Assessor noted that it was “very obvious that [Ms Zrnic] does have some mental health issues which appear to be associated more with depression than anything else.”
In his summary at [7] of the MAC the Medical Assessor summed up the history of a muscular ligamentous strain of Ms Zrnic’s neck and its shoulder as a result of the work she was doing.
He noted that there had been conservative treatment. The Medical Assessor said:[2]
“At this assessment, the major issues of concern continue to be her cervical spine and gross restriction of movement of her shoulders. Attention is drawn that at this assessment, the range of movement in her shoulders was the least which has been demonstrated by any of the specialists carrying out her assessment. For example, Specialist Orthopaedic Surgeon, Dr Drew Dixon in his reports of 19/09/19 and 12/10/21, identified moderate dysfunction of the shoulders, which was asymmetrical. More recently, on 12/08/22, Specialist Orthopaedic Surgeon, Dr Todd Gothelf demonstrated a symmetrical range of movement of the shoulders which was virtually normal. No significant shoulder dysfunction has been demonstrated in this intervening period of time.”
[2] Appeal papers page 22.
Under consistency of presentation the Medical Assessor said:[3]
“Attention is again drawn to the apparent lack of consistency of shoulder movement when seen by the two previous Orthopaedic Surgeons, Dr Drew Dixon and Dr Todd Gothelf in comparison with this assessment.”
[3] Appeal papers page 22.
In answer to the templated question at [8f] which related to whether the matters for assessment had been affected by any prior injury, pre-existing condition or abnormality, the Medical Assessor said:[4]
“Attention is drawn to the previous injury to her neck, back and shoulders in 1998 while working at Viscount Plastics. This is described to have fully resolved. There was also the rear end vehicle accident in either December 2020 or December 2021 in which her neck, back, right arm and right leg were apparently involved. It is likely that these issues would tend to predispose Mrs Zrnic to further deterioration or to further aggravate a condition which already existed.”
[4] Appeal papers page 23.
In explaining the deduction he made at [11] of the Medical Assessor said:[5]
“With the shoulders, this is a more difficult issue. Three specialists have assessed the shoulder conditions. Dr Drew Dixon assessed 6% for the right shoulder and 2% for the left. Dr Todd Gothelf assessed 0% for each. At this assessment with her very gross restriction of movement, 8% was demonstrated on each side. In order to try to achieve some kind of semblance of fairness and probably to the advantage of Mrs Zrnic, I elected to take the average figure from each of these assessments. This mathematically works out to 5% whole person impairment on the right and 3% on the left side.”
[5] Appeal papers page 25.
SUBMISSIONS
The appellant
Ms Zrnic submitted that the sole ground of appeal was that in assessing the WPI the Medical Assessor erred in applying the provisions of s 323 of the 1998 Act to his assessment of the right upper extremity and the left upper extremity.
We were referred to the history taken by the Medical Assessor regarding a 1998 injury and a prior motor vehicle accident in either 2020 or 2021 which were noted by the Medical Assessor. We were referred to the Medical Assessor’s report of these injuries. It was submitted that there was “no medical evidence” in relation to either incident before the Medical Assessor.
We were referred to s 323(2) of the 1998 Act and it was submitted that as there was no medical evidence, an assumption of the deduction of 1/10th would not be at odds with the available evidence.
It was submitted that the Medical Assessor did not make any analysis or finding as to his application of s 323.
Ms Zrnic noted that the assessment of the deduction was described by the Medical Assessor as a “difficult issue” and it was therefore “somewhat puzzling” that the Medical Assessor only made a 25% deduction for the right upper extremity but a 62.5% deduction for the left upper extremity.
Further, Ms Zrnic submitted that the method employed by the Medical Assessor to average the various assessments of movement made by various doctors as the baseline for the deduction was flawed and “demonstrably in error”.
Frank Filippello & Lucy Filipello (the respondent)
The respondent conceded that the Medical Assessor had erred with regard to the matters complained off by the appellant.
The respondent traversed the relevant contents of the MAC and accepted that the deduction made in respect of each shoulder should not have been made.
We were then referred to Chapter 1.36 of the Guides which applies to inconsistent presentation. The respondent submitted that the Medical Assessor was concerned as to Ms Zrnic’s presentation, contrasting it with the reports of Dr Drew Dixon, the medico-legal expert retained for Ms Zrnic, and Dr Todd Gothelf, who was retained for the respondent.
The respondent submitted that whilst the error had been conceded, the Medical Assessor should have applied the provisions of Chapter 1.36 of the Guides and made a modification to his assessment of the same deductions.
It was submitted that the MAC should be confirmed on the basis of the exercise of the Medical Assessor’s clinical judgment.
CONSIDERATION
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Chapter 1.36 provides:
“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 judgment 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 reason for the modification in writing.’ This paragraph applies to inconsistent presentation only.”
The properly made concession by the respondent that the Medical Assessor had erred in applying s 323, raises the issues as to whether a modification should be made pursuant to Chapter 1.36 of the Guides, and what amendment there should be regarding the application of s 323.
The first question is whether the Appeal Panel has any jurisdiction to entertain this application. It has come from the respondent who has agreed that the Medical Assessor has made a demonstrable error. However, what it proposes is that another order be substituted, which is concomitant with its agreement that the MAC is flawed. The difficulty with the proposal, although reasonably put, is that the respondent did not put on an appeal in order to enable its application to be heard. The application of Chapter 1.36 without being the subject of a cross-appeal from the respondent raised the difficulty that the principles of natural justice and procedural fairness will have been denied to the appellant.
Accordingly, on 21 May 2024 the Appeal Panel called for submissions as follows:
“1. We note that the respondent has conceded that the Medical Assessor has erred in applying s 323 of the 1998 Act. We note further the suggestion by the respondent that the terms of Chapter 1.36 of the Guides be employed in order to make a modification based on Ms Zrnic’s presentation.
2. As the appellant has had no opportunity to consider this alternative, we request the appellant to lodge and serve submissions as to whether the provisions of Chapter 1.36 should be applied. These submissions are to be lodged and filed by 13 June 2024. The respondent has leave to file and serve submissions in reply by 20 June 2024.”
The appellant responded relevantly as follows:
“2. The appellant has no issue with the Medical Panel applying Chapter 1.36 of the Guides to make a modification based on the appellants presentation.
3. Further the appellant has no issue if the Appeal Panel applies Chapter 1.36 of the Guides rather than referring the matter back to the medical Assessor.”
We accordingly revoke the MAC, noting the commendable approach taken by both parties. We note that the reason the Medical Assessor made his deduction was as a result of Ms Zrnic’s inconsistent presentation. The wide range of movement of the shoulders displayed between the examinations of Dr Drew Dixon, who identified an asymmetric moderate dysfunction of the shoulders in 2019 and 2021; Dr Todd Gothelf, who noted
that the range of motion examination was “unreliable” and, also using the provisions of Chapter 1.36, found there to be no measurable impairment of either shoulder in August 2022; and the Medical Assessor, whose measurements revealed a symmetric limitation of movement which equated to 8% WPI for each shoulder, was highly unlikely to be the result of the subject injury. We note that Ms Zrnic suffered a motor vehicle accident in either 2020 or 2021, but with no medical evidence available to the Medical Assessor, it was unsafe to assume that the motor vehicle accident was the cause of her presentation to the Medical Assessor.There has been no challenge to the adjustment made by the Medical Assessor and accordingly a modification pursuant to Chapter 1.36 in the same terms can be made. We note the attempted method of calculation by taking an average figure from the above measurements by the Medical Assessor, and we note the resulting discrepancy between the 5% figure for the right shoulder mentioned at [11] of the MAC and the 6% WPI actually awarded in the Table 2 Certificate. We assume that the Medical Assessor erred in so doing and in the circumstances we propose to adopt the 5% assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 November 2023 should be confirmed.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2363/23 |
Applicant: | Lucija Zrnic |
Respondent: | Frank Filippello & Lucy Filipello |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Tim Anderson 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 AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) | |
Cervical spine | 04/01/19 | Chapter 4 P 24 | P 392 T 15-05 | 7 | 1/10th | 6 | |
| Right upper extremity | 04/01/19 | Chapter 2 P 10 Chapter 1.36 | P 476 15-05 P 477 16-43 P 479 16-46 P 439 16-03 | 5 | 0 | 5 | |
| Left upper extremity | 04/01/19 | Chapter 2 P 10 Chapter 1.36 | P 476 15-05 P 477 16-43 P 479 16-46 P 439 16-03 | 3 | 0 | 3 | |
| Upper digestive system | 04/01/19 | Chapter 16 P 78 Chapter 16.9 | P 121 6-03 | 0 | 0 | 0 | |
| Lower digestive system | 04/01/19 | Chapter 16 P 78 Chapter 16.9 | P 121 6-03 | 0 | 0 | 0 | |
Total % WPI (the Combined Table values of all sub-totals) | 14% | ||||||
0