B & J Benchtops Pty Limited v Xiao
[2021] NSWPICMP 238
•15 December 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | B & J Benchtops Pty Limited v Xiao [2021] NSWPICMP 238 |
| APPELLANT: | B & J Benchtops Pty Limited |
| RESPONDENT: | Shen Tao Xiao |
| APPEAL PANEL: | Member William Dalley Dr Gregory McGroder Dr Brian Noll |
| DATE OF DECISION: | 15 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Allegation of error by the Medical Assessor (MA) by way of failure to give adequate reasons for assessment of body parts; upon preliminary review, the Panel noted that the MA had included an assessment of 5% whole person impairment in respect of the pelvis although the original claim did not include any component of impairment relating to the pelvis; submissions sought from parties as to whether the pelvis should be assessed upon re-examination; respondent worker submitted that the Panel had no jurisdiction to interfere with the decision of the MA beyond the terms of the appeal, citing Skates v Hills Industries Ltd (Skates); Held - lack of adequate reasons established; consideration of Skates led to the conclusion that the Panel should have regard to the medical dispute between the parties which did not include the pelvis; although the Panel reassessed the respondent worker as having the same degree of impairment as the MA in respect of the body parts referred, the Panel declined to include any assessment for the pelvis; the Panel noted that assessment of the pelvis in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 would duplicate assessment of the left upper extremity resulting in over-compensation; (Fracture of the acetabulum assessed by reference to the range of hip motion). |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 May 2021 B & J Benchtops Pty Limited lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 April 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 grounds 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).
RELEVANT FACTUAL BACKGROUND
The respondent to the appeal, Shen Tao Xiao, (Mr Xiao / the respondent) suffered injuries when he fell from a forklift in the course of his employment with the appellant, B & J Benchtops Pty Limited, on 15 March 2018. Mr Xiao suffered injury to the head and neck, left shoulder and elbow and the lower part of the back.
Mr Xiao underwent surgical treatment at Liverpool Hospital with open reduction and internal fixation of the neck of the left humerus. He subsequently underwent further surgery for removal of the plate. He undertook rehabilitation and was ultimately able to return to his previous work on reduced hours.
On 5 December 2019 Mr Xiao was assessed by Dr Bodel at the request of his solicitors for the purposes of assessing a claim pursuant to section 66 of the Workers Compensation Act 1987 for lump-sum compensation.
Dr Bodel assessed Mr Xiao as having 22% whole person impairment (WPI). That assessment comprised 8% WPI for the left upper extremity, 7% WPI for the cervical spine, 5% WPI for the lumbar spine, 2% WPI for the left lower extremity and 2% WPI for scarring, combined in accordance with the Combined Values Chart in AMA5.
Mr Xiao’s legal representatives made a claim for lump-sum compensation in accordance with Dr Bodel’s report. Mr Xiao was then examined by an orthopaedic surgeon, Dr Stephen Rimmer, at the request of the insurer. Dr Rimmer assessed Mr Xiao as having 4% WPI in respect of the left upper extremity and 2% WPI in respect of scarring. Dr Rimmer was of the opinion that Mr Xiao had fully recovered from the other injuries.
The medical dispute was referred to the Medical Assessor to determine the degree of permanent impairment in respect of the cervical spine, lumbar spine, scarring (TEMSKI), left upper extremity and left lower extremity.
Mr Xiao was examined by the Medical Assessor on 8 March 2021. The Medical Assessor assessed Mr Xiao as having 24% WPI. That assessment comprised an assessment of the cervical spine at 5% WPI, lumbar spine at 5% WPI, pelvic fractures at 5% WPI, left upper extremity (shoulder) at 5% WPI, left lower extremity (hip) at 4% WPI and scarring at 2% WPI, combined in accordance with the Combined Values Chart in AMA5.
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 the worker should undergo a further medical examination because, error having been established, there was insufficient material available to the Panel to permit assessment of the appropriate extent of impairment resulting from the subject injury.
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.
Further medical examination
Dr McGroder of the Appeal Panel conducted an examination of the worker on 16 November 2021 and reported to the Appeal Panel. Dr McGroder reported:
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-569/21 |
| Appellant: | B & J Benchtops Pty Ltd |
| Respondent: | Shen Tao Xiao |
| Date of Determination: | 16 November 2021 |
| Examination Conducted By: | Dr Gregory McGroder |
| Date of Examination: | 16 November 2021 |
1.The workers medical history, where it differs from previous records
The history regarding injuries that involve the fractured neck of humerus requiring two surgical procedures and the fractures of the left pubic rami and acetabulum were noted and were as per the history given in the previous MAC.
With regard to the neck and back, however, Mr Xiao gives a history of neck and back pain being present since the time of the original injury. He also had a head injury. Because of this he was referred to Dr McKechnie, Neurosurgeon, who he first saw on 21 August 2018. Dr McKechnie organised a number of MRI scans of the brain which demonstrated minor subdural changes but nothing surgical.
With regard to the neck and back he organised MRI scans. That of the cervical spine demonstrated broad-based disc bulges, predominantly at C4/5, C5/6 and C6/7 with foraminal stenosis but no definite nerve root impingement. An MRI of the lumbar spine demonstrated disc protrusions, most prominent at L4/5 with lateral recess stenosis but no obvious nerve root impingement. Dr McKechnie recommended conservative management. It appears that he improved somewhat from the point of view of his neck and back but his symptoms persisted. He had further MRI scans in June 2020. They demonstrated a basically unchanged appearance with some spondylitic changes and canal stenosis in both the cervical and lumbar areas but once again there was no definite nerve root impingement. Dr McKechnie recommended on-going conservative management.
He recently saw Dr Chin with regard to increasing pain down through his left hip and leg. Dr Chin organised MRI studies of the area and suggested that it was not a primary hip problem and that the pain was most likely radiating from the lumbar spine. He recommended that Mr Xiao see Dr McKechnie again. He did so only a month ago and the MRI scans of the lumbar spine were repeated but they were basically unchanged. He will be having another Telehealth conference with Dr McKechnie.
2.Additional history since the original Medical Assessment Certificate was performed
The only additional history was the most recent attendance with Dr McKechnie who recommended on-going conservative management.
Mr Xiao said that at the moment he has constant neck pain and stiffness and difficulty moving his neck to the side. The pain radiates down through his left shoulder and outer arm into the fifth, fourth and third fingers. He finds that his pain is worse when he sleeps, as is the numbness in his hand. He said that his left arm feels weak.
With regard to his lower back, the pain there is constant and made worse by lifting, bending and squatting. It radiates down through his left hip into the posterior left thigh.
3.Findings on clinical examination
Range of movement of the left shoulder and left hip were similar to those demonstrated to the AMS on 8 March 2021.
With regard to his scarring the scar over the anterior aspect of the left shoulder was noticeable and 13cm long. It was 0.5cm wide at its widest. There was a marked colour contrast with darkening of the skin. The scar was raised with some minor tethering. There were suture marks visible.
He had normal spinal alignment. He had even gait. He could walk on heels and toes. He could perform a squat with back discomfort. Range of movement was restricted, particularly rotation and lateral movement towards the right relative to the left. Straight leg raising was 70 degrees on the left and 90 degrees on the right, ceased due to back pain. He could, however, extend his legs from a seated position with negative neural tension tests. Thigh circumference at 10cm suprapatella was 47cm bilaterally and calf circumference at maximum was 36cm bilaterally. Reflexes were equal and normal. There was no anatomically localised abnormal sensation. There was some tenderness over the lower lumbar intervertebral spaces into the left sacroiliac area.
With regard to the cervical spine, forward flexion and backward extension were to eight-tenths of the expected range. Lateral movement and rotation were towards the right, three-quarters of the expected range and toward the left, nine-tenths of the expected range. There was non-verifiable radicular complaint.
There was some restriction of range of movement of the left shoulder with some wasting of the left shoulder girdle muscles. Any weakness was antalgic with no specific muscle weakness identified. Reflexes were equal and normal. There was no altered sensation. There was tenderness over the left paraspinal area into the muscles at the left neck/shoulder junction.
4.Results of any additional investigations since the original Medical Assessment Certificate
Further MRI scans of the cervical and lumbar spines were unchanged from previous scans.”
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 failed to provide adequate or any appropriate reasons for his assessment of the cervical spine and the lumbar spine. The Medical Assessor further fell into error in respect of assessment of scarring, in that the Medical Assessor reported inconsistent assessments and had not related findings on examination to the appropriate Guidelines.
In reply, the respondent submits that the Medical Assessor had provided detailed reasons for assessment of the cervical and lumbar spine in accordance with the Guidelines. With respect to scarring the Medical Assessor has exercised appropriate clinical judgement.
The Panel, upon preliminary review, noted that the Medical Assessor had included in his assessment of impairment resulting from injury a further 5% WPI in respect of the pelvis. The Panel informed the parties:
“1. The Panel notes:
a)The Medical Assessor included in his assessment 5% whole person impairment in respect of the pelvis although the medical dispute referred for assessment was limited to the cervical spine, lumbar spine, left upper extremity, left lower extremity and scarring.
b)On the evidence before the Panel, no claim pursuant to section 66 of the Workers Compensation Act 1987 has been made in respect of the pelvis.
c)Neither of the Independent Medical Experts, Dr James Bodel, who examined the respondent worker at the request of his solicitors, nor Dr Stephen Rimmer who examined the respondent worker at the request of the insurer of the appellant, assessed impairment in respect of the pelvis.
d)The appellant has raised no ground of appeal nor any submission addressing inclusion of assessment of the pelvis by the Medical Assessor.
e)As part of its determination, the Panel is obliged to consider whether:
i) The decision of the New South Wales Court of Appeal in Skates V Hills Industries Ltd [2021] NSWCA 142 restricts the assessment of whole person impairment to the medical dispute between the parties.
ii) A dispute between the parties can be identified with respect to whole person impairment arising from injury to the pelvis.
2. The respondent worker is to file and serve written submissions on or before close of business on 28 July 2021 as to whether the Panel should include in its assessment whole person impairment attributable to the pelvis.
3. The appellant is to file and serve written submissions on or before close of business on 4 August 2021 in reply as to whether the Panel should include in its assessment whole person impairment attributable to the pelvis.”
The respondent worker submitted that the Panel was limited in its consideration to the grounds of appeal. No issue had been raised with respect to the inclusion of the pelvis in the Medical Assessor’s examination and assessment. The respondent worker submitted: “not only should the Appeal Panel include the pelvis in its assessment, but, as a matter of law, it must include the pelvic impairment of 5% WPI as assessed by the Medical Assessor in that assessment” (original emphasis) and it would be an error of law for the Panel to make a determination with respect to the pelvis.
The appellant agreed that the original appeal had not taken issue with assessment of the pelvis. However, the appellant submitted that the respondent’s submissions conflated the subject of the appeal with the ‘grounds of appeal’ under section 327 (3) of the 1998 Act. The decision in Skates v Hills Industries Ltd (Skates) established that the Medical Assessor fell into error in assessing a body part that had not been referred.
The appellant sought leave to amend the grounds of appeal to include an allegation of error relating to the assessment of the pelvis.
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[1] 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.
[1] [2006] NSWCA 284.
Scarring
With respect to scarring, the Medical Assessor observed on examination; “there is a 12 cm long, deltopectoral scar over the left shoulder. There are well healed arthroscopic portals. There is some widening and pigmentation or colour change around the scar”. Under the heading “An explanation of my calculations (if applicable)”[2] the Medical Assessor recorded: “Scarring (TEMSKI) 2%”.
[2] MAC, paragraph 10b.
Discussing the report of Dr Bodel dated 5 December 2019, the Medical Assessor reported[3]: “I have only allocated 1% impairment for skin (TEMSKI) on the basis that the scar is visible and there is some trophic changes and some contour defects”.
[3] MAC, paragraph 10c.
The appellant submitted that the Medical Assessor fell into demonstrable error in failing to give consistent or adequate reasons for his assessment of scarring in that he had not related observations to the criteria. The Medical Assessor had also recorded conflicting observations with regard to scarring.
The respondent submitted that the Medical Assessor had appropriately relied upon his clinical judgement, noting the criteria listed in table 14.1 of the Guidelines which the respondent submitted corresponded with the findings of the Medical Assessor upon examination.
Table 14.1. relevantly provides descriptors as follows in respect of 0% WPI, 1% WPI and 2% WPI:
Criteria
0% WPI
1% WPI
2% WPI
Description of the scar(s) and/or skin condition(s)
(shape, texture, colour)
Claimant is not conscious or is barely conscious of the scar or skin condition.
Could colour match with surrounding skin, and the scars or skin condition is barely distinguishable.
Claimant is unable to easily locate the scars or skin condition.
No trophic changes.
Claimant is conscious of the scars or skin condition.
Some parts of the scars or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes.
Claimant is able to locate the scars or skin condition.
Minimal trophic changes.
Any staple or suture marks visible.
Claimant is conscious of the scars or skin condition.
Noticeable colour contrast of scars or skin condition with surrounding skin as a result of pigmentary or other changes.
Claimant is able to easily locate the scars or skin condition.
Trophic changes evident to touch.
Any staple or suture marks are clearly visible.
Location
Anatomic location of the scars or skin condition not clearly visible with usual clothing/hairstyle.
Anatomic location of the scars or skin condition is not usually visible with usual clothing/hairstyle.
Anatomic location of the scars or skin condition is usually visible with the usual clothing/hairstyle.
Contour
No contour defect
Minor contour defect
Contour defect visible
ADL/treatment
No effect on any ADL
No treatment, or intermittent treatment only, required.
Negligible effect on any ADL.
No treatment, or intermittent treatment only, required.
Minor limitation in the performance of few ADL.
No treatment, or intermittent treatment only, required.Adherence to underlying structures
No adherence
No adherence
No adherence
The Panel notes that, apart from recording the observations upon examination, the Medical Assessor has not provided reasons for assessing scarring at 2% and has also confused the picture by stating that he had assessed scarring at 1% when discussing the report of
Dr Bodel.The Panel accepts that the Medical Assessor has not provided adequate reasons for his assessment of 2% WPI in respect of scarring. Paragraph 14.8 of the Guidelines provides:
“The TEMSKI[4] is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If this skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.”
[4] Table for the Evaluation of Minor Skin Impairment.
The Medical Assessor has not related his observations to the criteria in a way that demonstrates his reasoning in the assessment of scarring as required by the Guidelines. The Panel is satisfied that demonstrable error has been established with regard to this area of assessment.
Cervical spine and lumbar spine
The appellant submitted that the findings on examination recorded in the MAC and the reasons provided by the Medical Assessor for his assessment of 6% (before deduction) for the cervical spine and 5% for the lumbar spine did not adequately explain how the observations and findings of the Medical Assessor met the criteria set out in the Guidelines for assessment of these body parts.
Specifically, the appellant complained that the Medical Assessor had not recorded physical findings upon examination with regard to the cervical spine or lumbar spine, had failed to make any diagnosis other than aggravation of pre-existing degenerative disease and had failed to record relevant ranges of motion. The appellant noted that the Medical Assessor had recorded complaints of cervical and lumbar pain and radiological evidence of degenerative change which were of limited relevance. The appellant submitted:
“The SIRA Guidelines set out the criteria for DRE category II impairment for the cervical and lumbar spines as follows:
a) Muscle guarding or spasm, asymmetric loss or range of motion or non-verifiable radicular complaints, localised (not generalised) tenderness, no altercation (sic – alteration) of structural integrity; or
b) Clinically significant radiculopathy and an imaging study that demonstrated a herniated disc treated non-operatively[5]; or
c) Fractures with less than 25% compression of one vertebral body.”
[5] The criteria set out at (b); “clinically significant radiculopathy….” is significantly truncated in the appellant’s submission. Table 15-3, with reference to lumbar DRE II, refers to earlier radiculopathy which is “no longer present”. Table 15-5 with reference to cervical DRE II refers to radiculopathy which has “improved following non-operative treatment”.
The respondent submitted that the Medical Assessor had assessed Mr Xiao in accordance with the Guidelines. The Medical Assessor did not need to report matters that were irrelevant to the assessment. The Medical Assessor had provided a diagnosis in respect of both the cervical spine and lumbar spine. Range of motion assessment was not available as a method of assessment and the appellant was in error when it asserted that the Medical Assessor was “required to record a range of motion”.
The Medical Assessor recorded his findings on examination of the shoulders. He recorded the respective ranges of motion at the hips and recorded an absence of neurological signs.
The Medical Assessor briefly summarised the radiological investigations of the hips, left shoulder, lumbar spine and cervical spine. He assessed impairment of the cervical spine at 6% WPI and in the lumbar spine at 5% WPI. The Medical Assessor explained:
“Cervical Spine: Mr Xiao has developed neck pain after his fall. His imaging demonstrates pre-existing degenerative disease. According to AMA5, page 392, Table 15-5, I assess him as DRE category II (5% whole person impairment). According to SIRA Guidelines, page 28, paragraph 4.34, I assess a further 1% on the basis of restriction of ADLs giving a 6% whole person impairment.
Lumbar Spine: Again, Mr Xiao has developed back pain after his fall. His imaging demonstrates desiccation of his L4/5 disc which is a degenerative pathology. I assess him as DRE category II (5% whole person impairment). According to SIRA Guidelines, page 30, Table 4.3, fractures of the pelvic bones are assessable under paragraph 2. I assess 5% whole person impairment for residual displacement of 1 cm -2 cm for the pubic ramus fractures.”
The Medical Assessor noted current symptoms and the treatment regime.
The Medical Assessor noted the report of Dr Bodel dated 5 December 2019, agreeing with the assessment of the cervical spine and lumbar spine and allocating 5% impairment in respect of each of those assessments (before adding a further 1% for the cervical spine for interference with activities of daily living (ADLs)). The Medical Assessor commented that he had assessed interference with activities of daily living at 1% rather than 2% as assessed by Dr Bodel.
As noted by the appellant, the Guidelines require assessment of the cervical spine and the lumbar spine by reference to diagnosis related estimates (DREs). Paragraphs 4.17 to 4.32 of the Guidelines guide the application of that method. As noted by the appellant, the assessor is required to provide detailed reasons why the category was chosen when assessing DRE II[6].
[6] Guidelines, paragraph 4.18.
The Panel accepts that the report of the Medical Assessor in the MAC does not permit an understanding of the Medical Assessor’s reasoning in assigning DRE II to the cervical spine and lumbar spine. The Medical Assessor has not addressed the relevant criteria set out in Table 15-3 or 15-5. The relevant criteria have been noted above in the appellant’s submissions.
The MAC when read as a whole does not permit an understanding as to whether there was significant muscle guarding or spasm, asymmetric loss of range of motion or non-verifiable radicular complaints. The Panel accepts the submission of the respondent, that the Medical Assessor does not have to comment on matters that are not relevant. In the present case there is no question of fractures. However, the absence of reference to range of motion is relevant to the issue of whether asymmetric loss of range of motion has been found and the MAC does not permit an understanding of whether radicular pain was present.
For these reasons, the Panel is satisfied that the Medical Assessor has failed to provide adequate reasons for assigning DRE II in respect of the cervical spine and the lumbar spine and this aspect of the appeal is successful.
Re-assessment
The findings of Dr McGroder, with respect to scarring were as follows:
“With regard to his scarring, the scar over the anterior aspect of the left shoulder was noticeable and 13cm long. It was 0.5cm wide at its widest. There was a marked colour contrast with darkening of the skin. The scar was raised with some minor tethering. There were suture marks visible.”
The appellant’s independent medical expert, Dr Rimmer, reported[7]:
“SIRA Guidelines, Table 14.1, page 74, is 2% whole person impairment, i.e. Mr Xiao is conscious of the scar, noticeable colour contrast, contour defect visible, minor limitation on ADLs.”
[7] report dated 19 June 2020, page 7.
Dr Rimmer’s opinion with respect to scarring is supported by the assessment by Dr Bodel as well as that of Dr McGroder upon examination, and the Panel is satisfied to accept the opinion of Dr Rimmer, Dr Bodel and Dr McGroder on this point. It is consistent with the criteria set out in Table 14.1 for assessment of 2% WPI in respect of scarring.
With respect to the lumbar spine, Dr McGroder noted upon examination; “Range of movement was restricted, particularly rotation and lateral movement towards the right relative to the left. Straight leg raising was 70 degrees on the left and 90 degrees on the right, ceased due to back pain”. There were no signs of radiculopathy, muscle guarding or spasm noted. The findings and observations of Dr McGroder establish asymmetric loss of range of motion and hence qualify for classification as lumbar category DRE II. The examination did not establish any of the criteria sufficient to place Mr Xiao within DRE lumbar category III. The finding of dysmetria (asymmetric loss of range of motion) is at odds with the criteria for lumbar category DRE I.
Mr Xiao is accordingly assessed having 5% WPI in respect of the lumbar spine in accordance with Table 15-3 of AMA5.
With respect to the cervical spine, Dr McGroder observed:
“forward flexion and backward extension were to eight-tenths of the expected range. Lateral movement and rotation were towards the right, three-quarters of the expected range and toward the left, nine-tenths of the expected range. There was non-verifiable radicular complaint.”
The observations with regard to range of motion establish asymmetric range of motion and so qualifies for classification as cervical category DRE II. The non-verifiable radicular complaints do not qualify Mr Xiao for inclusion in cervical category DR E III. Again, the finding of dysmetria is at odds with the criteria for cervical category DRE I.
Mr Xiao is accordingly assessed as having 5% WPI in respect of the cervical spine in accordance with Table 15-5 of AMA5. The statement of Mr Xiao in evidence indicates the extent to which his injuries have interfered with his activities of daily living with regard to sport and recreation. A significant part of that interference would arise from the injury to the cervical spine and it is appropriate to add 1% WPI for the impact of that injury upon this aspect of daily living pursuant to paragraphs 4.33 to 4.35 of the Guidelines so as to assess a total of 6% WPI in respect of the cervical spine.
There is a pre-existing degenerative condition in both the cervical spine and lumbar spine disclosed by the radiological investigations.
Left upper extremity (shoulder) and Left lower extremity (hip)
The Medical Assessor assessed the left upper extremity at 5% WPI in accordance with Figure 16-40, Figure 16-43 and Figure 16-46 of AMA5[8] and the left lower extremity. At 5% WPI in accordance with Table 17-9 and Table 17-3 of AMA5[9].
[8] pages 476, 479 and 477.
[9] Pages 537 and 527.
Neither party has raised any issue with respect to those assessments and the Panel accepts that the Medical Assessor has appropriately assessed those body parts and the Panel accepts that Mr Xiao suffers 5% WPI in respect of the left upper extremity (shoulder) and 4% WPI in respect of the left lower extremity (hip) as a result of the subject injury.
Pelvis
The appellant, in its further submissions, sought leave to amend the grounds of appeal to include an allegation of error with respect to assessment of the pelvis. For the reasons set out below, the Panel has reached the conclusion that the item “pelvic fractures” did not form part of the medical dispute between the parties and, error having been established with respect to other matters, upon re-examination, it would not be appropriate for the Panel to assess impairment in respect of “pelvic fractures”.
The Medical Assessor, as noted above, assessed the left lower extremity (hip) at 4% WPI. The Medical assessor summarised the components of his assessment of overall impairment[10] as:
“Cervical spine: 6% whole person impairment
Lumbar spine: 5% whole person impairment
Left upper extremity (shoulder): 5% whole person impairment
Left lower extremity (hip): 4% whole person impairment
Scarring (TEMSKI): 2%”
[10] MAC, Paragraph 10a.
However, the Medical Assessor, in Table 2 to the MAC, certified an additional component, “Pelvic fractures” which he assessed at 5% WPI. The Panel is of the opinion that, in assessing “Pelvic fractures” the Medical Assessor fell into error in two respects. The Panel considers that assessment of the pelvis did not form part of the referral to the Medical Assessor and equally did not form part of the medical dispute between the parties.
As noted above the Panel sought submissions from the parties as to whether assessment of the pelvis should be included in the reassessment to be carried out by the Panel. The effect of the respective submissions are recorded above. After consideration of the respective submissions, the Panel has concluded that the Medical assessor fell into error in assessing a body part that was not referred for assessment and which did not form part of the medical dispute between the parties.
The decision of the Court of Appeal in Skates v Hills Industries Ltd[11] concerned and appeal from the decision of a Medical Assessor to an Appeal Panel where the Medical Assessor had assessed impairment in respect of a body part not referred by the Registrar of the then Workers Compensation Commission.
[11] [2021] NSWCA 142.
In Skates Leeming JA said:
“[49] The document signed by the Registrar’s delegate and dated 1 September 2017 described itself as a “Referral for Assessment of Permanent Impairment to Approved Medical Specialist”. Its first numbered subheading was “Medical Dispute Referred for Assessment” and there it stated, wrongly, “Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)”. That was wrong insofar as it did not include Mr Skates’ wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him.
[50] The foregoing substantially corresponds with the first explanation given by Basten JA for confirming the correctness of the result reached by the Appeal Panel and the primary judge, with a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants’ competing claims.”
McCallum JA said at [81]:
“..the focus on body parts is apt to distract attention from the precise matter to be assessed and certified by the approved medical specialist. Parts 4 and 5.6 of the application to resolve a dispute had to be read together and in the context of the statutory regime explained above. The legislation contemplates the referral of a “medical dispute”, being one of the matters specified in s 319 (here, the degree of permanent impairment of the worker as a result of his injuries). Part 4 of the application specified the relevant injuries; part 5.6 specified the body systems claimed to have impairment as a result of those injuries.”
At [82] Her Honour said:
“I do not mean to suggest that an approved medical specialist is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved.”
The claim made on behalf of Mr Xiao by letter dated 25 May 2020 claimed lump sum compensation in respect of the following:
“8% for left upper extremity
7% for cervical spine
5% for lumbar spine
2% for left lower extremity
2% for scarring”
That claim was based upon the report of Dr Bodel dated 5 December 2019 and reflected the assessments made by Dr Bodel:
“This leaves a total of five individual ratings for the musculoskeletal injuries. These are 8% for the left upper extremity, 7% for the cervical spine, 5% for the lumbar spine, 2% for the left lower extremity and 2% for the scarring. These are combined using the Combined Values Chart on Page 604 of AMA5 and give a total of 22% Whole Person Impairment in this case.”
Dr Rimmer in his report dated 19 June 2020 provided assessments of the cervical spine, lumbar spine, left hip, left shoulder and scarring. The five body parts assessed by Dr Bodel and Dr Rimmer were particularised in Mr Xiao’s Application to Resolve a Dispute. Neither
Dr Bodel nor Dr Rimmer assessed impairment arising from pelvic fractures.The Panel concludes that the medical dispute between the parties did not include the extent of impairment arising from “pelvic fractures” and the Medical Assessor fell into error in assessing that body part.
The second area of concern to the Panel is that it was inappropriate to assess impairment in respect of the undisplaced fracture of the acetabulum by way of range of motion measurement of the hip. Under paragraph 7 of Table 4.3 fractures of the acetabulum are evaluated on the basis of “restricted range of hip motion” did not form a separate assessable item. Measurement of the range of motion of the hip forms the basis for the evaluation of the body part, “left lower extremity (hip)” and to add a further assessment of impairment for the same loss of range of movement in respect of the pelvis leads to double accounting and overcompensation in respect of the hip.
Both Dr Bodel and Dr Rimmer noted the undisplaced fracture of the acetabulum but assessed no impairment. The Panel notes that an undisplaced fracture of the pelvis attracts 0% WPI. The Panel accepts that the extent that a fracture of the acetabulum may contribute to the restricted range of hip motion, that impairment is appropriately assessed as an impairment of the lower extremity which is assessed on precisely the same basis.
The Panel further notes that the Medical Assessor did not explain why his assessment of the range of motion with respect to the pelvic fracture differed from the range of motion assessed in respect of the left hip, assessing 5% in respect of pelvic fractures and 4% in respect of the left hip although both were said to be assessed on the basis of range of motion.
The Panel is satisfied that impairment arising from fractures of the pelvis did not form part of the medical dispute between the parties and it would not be appropriate, upon reassessment, for the Panel to assess a further impairment in respect of this body part.
Summary
The Panel is satisfied that error has been established with respect to lack of adequate reasons for assessing scarring and assessment of the cervical spine and lumbar spine.
Upon reassessment, the Panel addresses the medical dispute between the parties as involving the cervical spine, lumbar spine, left upper extremity (shoulder) left lower extremity (hip) and scarring.
The Panel is satisfied that Mr Xiao suffers the following impairments:
· cervical spine – 6% WPI
· lumbar spine – 5% WPI
· left upper extremity (shoulder) – 5% WPI
· left lower extremity (hip) – 4% WPI
· scarring (TEMSKI) – 2% WPI
The Panel notes the findings of the Medical Assessor with respect to the existence of a pre-existing degenerative condition in the cervical spine and lumbar spine immediately prior to the subject injury. The view of the Medical Assessor is supported by the radiological evidence and it is appropriate to make a deduction of one tenth in respect of the assessment of the cervical spine and the lumbar spine. After deduction of one tenth and rounding, the assessment of the cervical spine becomes 5% WPI. The deduction of one tenth in respect of the lumbar spine does not alter the assessment of 5% after rounding up[12].
[12] See Guidelines Paragraph 1.26.
In accordance with the Combined Values Chart[13] the combined value of those impairments is 20% WPI.
[13] AMA 5, Page 604.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 April 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Robert Kuru 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) |
| 1. Cervical spine | 15/3/18 | Chapter 4 Paragraphs 4.17 to 4.28, 4.34 Pages 24 to 29 | Chapter 15, Table 15-5, Page 392 | 6% | 1/10 | 5% |
| 2. Lumbar spine | 15/3/18 | Chapter 4 | Chapter 15, | 5% | 1/10 | 5% |
| 3. Left upper extremity (shoulder) | 15/3/18 | Chapter 2, Pages 10 to 12 | Chapter 16 Figures 16-40, 16-43 and 16-46. Pp. 476, 477 and 479 | 5% | 0 | 5% |
| 4. Left lower extremity (hip) | 15/3/18 | Chapter 3, Pages 13 to 15, 18 | Chapter 17, Table 17-9, page 537 | 4% | 0 | 4% |
| 5. Scarring (TEMSKI) | 15/03/18 | Chapter 14, Table 14.1 | 2% | 0 | 2% | |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
Mr William Dalley
Member
Dr Gregory McGroder
Medical Assessor
Dr Brian Noll
Medical Assessor
15 December 2021
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