Dumevska v State of New South Wales [2020] NSWWCCMA 131 – Appeal to the Medical Appeal Panel

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By Anthony Morrissey, Consultant and Antonia Fox Koob, Law Graduate

The decision of the Medical Appeal Panel on 11 August 2020 in the case of Dumevska v State of New South Wales highlighted the importance of using the correct methods of assessing permanent impairment under the statutory workers compensation scheme.

Relevant Background

The worker, Lena Dumevska, was employed as a ward assistant at the Children’s Hospital at Westmead when she suffered an injury to her neck and right shoulder moving a sofa bed on 6 September 1999.

The worker received an award for compensation under section 66 of the Workers Compensation Act 1987 (“the 1987 Act”) in 2003 for permanent impairment to the neck and permanent loss of efficient use of her right arm at or above the elbow according to the Table of Disabilities, and further compensation for the same injuries in 2011.

In 2019, the worker commenced two sets of proceedings seeking further compensation under section 66 and an assessment of whole person impairment (“WPI”) for the purpose of section 39 of the 1987 Act.

These claims were referred to an Approved Medical Specialist (“AMS”), who prepared a Medical Assessment Certificate (“MAC”) dated 23 January 2020.

In relation to the section 66 claim, the AMS assessed 15% permanent impairment of neck and 15% permanent loss of efficient use of the right arm at or above the elbow. In relation to the WPI assessment, the AMS assessed 7% WPI in respect of the worker’s cervical spine and 10% WPI in respect of her right upper extremity, resulting in a total assessment of 16% WPI.

Submissions on Appeal

We lodged an Application to Appeal Against the Decision of Approved Medical Specialist on behalf of the State of NSW (“the State”) on 14 February 2020.

We submitted that, amongst other things, the AMS erred with respect to the WPI assessment as he failed to correctly assess the worker’s right shoulder by failing to assess her left shoulder in accordance with paragraph 2.20 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (“the Guidelines”).

Assessments of permanent impairment are made in accordance with the Guidelines and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (“AMA 5”).

Paragraph 2.20 of the Guidelines reads as follows:

Calculating motion impairment
2.20 When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543).’

The above paragraph outlines the method that must be used when calculating loss of range of movement of a body part. Specifically, an assessor must measure the corresponding normal or uninjured joint if it has less than average mobility, and use that impairment as a baseline from which to calculate the impairment of the injured joint. This method accounts for any natural restrictions of movement that may already exist in the injured joint (as evidenced in the contralateral joint) so that a fair assessment of impairment is made.

In the MAC dated 23 January 2020, the AMS calculated the motion impairment of the right shoulder and assessed the WPI of the right shoulder at 10% WPI, without considering any impairment of the uninjured joint, the left shoulder.

As such, we submitted that the AMS had erred in his method of calculation and that the impairment of the left shoulder which have been previously measured by A/Prof Shatwell should have been adopted, resulting in an assessment of 7% WPI in respect of the right shoulder and a total WPI of 14%.

Findings

In the Statement of Reasons for Decision of the Appeal Panel in Relation to a Medical Dispute dated 11 August 2020, the Appeal Panel found that the AMS did not follow the procedure set out in paragraph 2.20 of the Guidelines and both parties agreed that was an error. In particular, the AMS did not measure the contralateral normal/uninjured joint.

The Appeal Panel adopted the findings made by AMS Dr Mark Burns in his report.

In his report, Dr Burns found that the worker’s decreased active range of motion in her left shoulder (the normal/uninjured joint) is assessed as 6% Upper Extremity Impairment (“UEI”). The AMS assessed 16% UEI in respect of the worker’s right shoulder. Using her left shoulder as a baseline in accordance with paragraph 2.20 of the Guidelines, 6% UEI is deducted, resulting in 10% UEI which converts to 6% WPI.

The Appeal Panel accepted that when that figure is combined with 7% WPI for the worker’s cervical spine (assessed separately), the total WPI assessment is 13%.

The Appeal Panel accordingly upheld our appeal with regards to the WPI assessment of the right shoulder and the correct method used to calculate same.

Of note, the Appeal Panel’s finding of 13% WPI brought the worker under the 15% WPI threshold needed to bring a work injury damages claim, which may have opened our client up to further legal proceedings and more substantial damages.

Takeaway

The appeal decision in this case reveals the significance of using the correct methods of calculating permanent impairment according to the rules set down in the AMA 5 and the Guidelines, and the impact that ensuring these methods are properly applied can have on a worker’s claim.

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