Akparanta v Dynamic Concrete Pumping Services Pty Ltd
[2021] NSWPICMP 195
•14 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Akparanta v Dynamic Concrete Pumping Services Pty Ltd [2021] NSWPICMP 195 |
| APPELLANT: | Enyinnaya Akparanta |
| RESPONDENT: | Dynamic Concrete Pumping Services Pty Ltd |
| APPEAL PANEL: | Member Deborah Moore Dr James Bodel Dr Gregory McGroder |
| DATE OF DECISION: | 14 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in failing to properly assess scarring in accordance with the TEMSKI scale; the MA’s finding of 0% was consistent with all the evidence; Dr Maniam for the worker assessed 1% but gave no reasons for this assessment; Held - the MA gave adequate reasons for his assessment; Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 July 2021 Matthew Clarges (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 6 July 2021.
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,
· 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 2006 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 2006.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 2006.
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 although one was requested, we consider that we have sufficient evidence before us to enable us to determine the appeal for reasons that will be explained more fully below.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
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 MA erred in failing to properly assess Mr Akparanta’s scarring in accordance with the TEMSKI scale.
In reply, the respondent submits that no errors were made.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the left upper extremity and scarring (TEMSKI) resulting from an injury on 17 May 2019.
The MA obtained the following history:
“Mr Akparanta related that on 17/05/19, he and other work colleagues were on level 15 of a high-rise building, pumping concrete to construct a floor which was reinforced with steel…As this procedure was being conducted, all did not go according to plan. Apparently one of the other workers lost his grip on the concrete pipe to be lowered and the whole structure which, at that stage was the metal part, came swinging across and crushed Mr Akparanta’s left wrist against the scaffolding.
He was able to get down to the ground with some difficulty. Later, he saw his doctor. He was subsequently referred to Specialist Orthopaedic Surgeon, Dr Kwam Yeoh at Penrith. Subsequent investigations demonstrated localised soft tissue injury and also a tear of the triangular fibro-cartilage. This was managed by an arthroscopic procedure on 24/09/19. Mr Akparanta thought that the condition had become infected, but I could not find specific details of this in the file. A couple of weeks later there was a further surgical procedure.
He went through extensive physiotherapy and rehabilitation. Later, there were two cortisone injections which did not help.
At that stage there was a possibility of carrying out further surgery. A second opinion was provided by Specialist Hand Surgeon, Dr David Yee. He advised that further surgical procedures would probably not be helpful and recommended that Mr Akparanta’s future clinical management should be conservative.”
After documenting his present treatment, the MA described his present symptoms as follows: “Pain over the dorsum of the left wrist with pain over the thumb, metacarpo-phalangeal and carpo-metacarpal joints. Reduced wrist movement and power. Reduced sleep.”
As regards his social activities and activities of daily living (ADL’s) the MA said:
“Mr Akparanta is married. His wife is fit and well. There are no children. He is a non-smoker. Occasionally he enjoys a modest drink.
In years gone by, he was a keen and apparently quite gifted soccer player. He is not doing anything like that now. He does some reading.
He is able to drive an automatic vehicle for about two hours.
At home, his wife does most of the housework.”
Findings on physical examination were reported as follows:
“Mr Akparanta was tall, powerfully built and fit looking…
Cervical Spine. There was no complaint of pain or tenderness. Movement of the head and neck was completely normal.
Upper Limbs. He had a completely normal range of movement of the shoulders and elbows.
He had the following wrist movements:
RIGHT: Flexion 60°: Extension 60°: Radial deviation 30°: Ulnar deviation 40°
LEFT: Flexion 30°’: Extension 30°: Radial deviation 5°: Ulnar deviation 20°.
There were no neurological features. The very small surgical scars around his left wrist had healed satisfactorily and without complication.”
In summarising the injuries and diagnoses, the MA said:
“Mr Akparanta gives a history of his left wrist being crushed between two heavy metal structures on a building site. Although this did not cause any significant bony injury, it did cause a lot of soft tissue injury and probable injury to the triangular fibro-cartilage of the left wrist complex. Although the initial radiological investigations did not demonstrate any significant feature, it was thought that there was damage to the triangular fibrocartilage, this was managed by an arthroscopic procedure in which a repair was carried out. Several weeks later there was a need for further minor debridement.
Mr Akparanta has recovered reasonably well from this condition, although it has been identified that there are degenerative changes in the metacarpo-phalangeal and carpometacarpal joints of the left thumb complex. His further clinical management has been conservative.
Mr Akparanta’s presentation was consistent.”
The MA assessed 13% WPI in respect of the left upper extremity and 0% for scarring.
He explained his calculations as regards the left upper extremity first then added:
“Scarring. This is addressed in the SIRA Guidelines Page 74, Table 14.1. The surgical scarring has healed satisfactorily. These arose from standard procedures for a designated condition. The scars are uncomplicated, do not cause any significant problem with Mr Akparanta and are therefore rated as 0%.”
The MA then turned to consider the other medical opinions and said:
“My impairment evaluation is close to that of Specialist Orthopaedic Surgeon, Dr Vijay Maniam in his report of 15/01/21. I am not persuaded that scarring should be anything greater than 0%.
Specialist Orthopaedic Surgeon, Dr Richard Powell in his report of 05/03/21 arrives at a whole person impairment of only 8%. The discrepancy in our assessments is likely to be due to the worse range of movement which was demonstrated at this assessment. I agree with his assessment of 0% for the scarring.”
The appellant’s submissions may be summarised as follows:
(a) the MA failed to address various factors as required and stipulated in the TEMSKI scale:
(b) failed to comply with Clause 14.8 of the Guidelines, in that he did not apply the ‘best fit’ principle, and failed to consider all of the criteria within the impairment category;
(c) failed to provide adequate reasons for his assessment of 0%;
(d) failed to have regard to the fact that the scarring was hyperpigmented as noted by Dr Maniam;
(e) the MA’s reasons did not satisfactorily address the TEMSKI scale; and
(f) the report of Dr Maniam was relevant material which the MA was obliged to consider, and he failed to pay proper regard to same, particularly as regards the issue of hyperpigmentation.
Chapter 14 of the Guidelines deals with the skin.
Clause 14.6 relevantly provides:
“A scar may be present and rated as 0% WPI. Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”
Thereafter, Table 14.1 of the Guidelines provides that for a 0% WPI assessment for scarring to be appropriate, the following criteria is relevant:
(a) Claimant is not conscious or barely conscious of the scar.
(b) There is good colour match with surrounding skin, and the scar is barely distinguishable.
(c) Claimant is unable to easily locate the scar.
(d) There are no trophic changes.
(e) Any staple or suture marks are barely visible.
(f) There are no contour defects.
(g) There is no effect on any activities of daily living.
(h) No treatment, or intermittent treatment only required.
(i) Anatomic location of the scar is not clearly visible with usual clothing/hairstyle.
The MA concluded that “The surgical scarring has healed satisfactorily. These arose from standard procedures for a designated condition. The scars are uncomplicated, do not cause any significant problem with Mr Akparanta and are therefore rated as 0%.”
We note that this is consistent with the assessment of Dr Powell.
In addition, we point out that Chapter 1.6 of the Guidelines confirms that an MA is required to make an assessment of a claimant as they present on the day of the examination.
Moreover, in Ferguson v Stateof New South Wales [2017] NSWSC 887 Campbell J said:
“...the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face…”
In the present case, we are not persuaded that the assessment by the MA was either inconsistent with the evidence or contrary to his findings on examination.
As Chapter 14.9 of the Guidelines states: “the assessor should use clinical judgement to determine the exact impairment rating.”
As regards the issue of providing adequate reasons, the MA’s reasons were consistent with those required under the TEMSKI scale in that he addressed all the relevant matters.
As the respondent correctly points out:
“The obligation of a MA to give reasons for assessment is undoubted. The reasons need not be elaborate or lengthy, but should outline the matters the MA has considered, and the view the MA has reached on the matters he or she was required to decide, in sufficient detail to explain why that view was reached: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6 it was held that the standard by which the ‘adequacy’ of reasons may be determined is relative to the nature and context of the decision made and the decision-maker.”
We also note two other matters of significance in our view.
Firstly, Dr Maniam gave no reasons whatsoever in respect of his assessment of 1% WPI for scarring.
Secondly, in his statement dated 17 May 2021 Mr Akparanta gave extremely detailed information about the nature and extent of his injuries and the impact it had on many aspects of his life, but not once did he mention his scarring or any impact on his life it may have had.
In our view, the assessment made by the MA with respect to scarring was open to him on all the evidence before him, and the level of reasoning provided for the assessment is appropriate.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 July 2021 should be confirmed.
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