Bellenger v Workmates Australia Pty Ltd
[2021] NSWPICMP 50
•16 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bellenger v Workmates Australia Pty Ltd [2021] NSWPICMP 50 |
| APPELLANT: | Michael Bellenger |
| RESPONDENT: | Workmates Australia Pty Ltd |
| APPEAL PANEL: | Member John Wynyard Dr Brian Noll Dr James Bodel |
| DATE OF DECISION: | 16 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of 10% WPI re injury to the left shoulder, elbow and scarring; fresh evidence tendered from medico-legal expert and appellant; Held- applying Lukacevic v Coates Hire Operations Pty Limited, appellant’s statement rejected as lacking plausibility and support; medico-legal report rejected applying Topic v Department of Ageing, Disability and Home Care, on policy grounds; appellant’s appeal mistakenly alleged error related to the Medical Assessor’s finding regarding a normal right shoulder; presumption of regularity applied to measurements of left shoulder and elbow; Jones v Registrar Workers Compensation Commission and Bojko v ICM Property Service Pty Ltd applied; consideration of Chapter 2.18 of the Guides re epicondylitis where elbow impairment measured greater than provided in the guideline; finding of nil impairment for scarring adequately explained; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 October 2020 Michael Bellenger, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 24 September 2020.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· 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 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.
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 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 August 2020 the delegate referred this matter to an MA for assessment of WPI caused by injury to the left upper extremity (shoulder), (elbow), scarring (TEMSKI) on 3 November 2017.
Mr Bellenger was employed as an asphalter and on 3 November 2017 was injured whilst lifting a shovel full of asphalt and injured his left elbow.
He was assessed in the Liverpool Emergency Department where investigations showed no fracture.
An ultrasound on 7 November 2017 demonstrated a complete tear of the biceps tendon and Mr Bellenger came to surgery with Professor Ireland in December 2017 for reattachment surgery.
Following the surgery there was an onset of pain in the left shoulder for which Professor Ireland performed further arthroscopic surgery in March 2019. The treatment however did not result in any improvement, but rather made his situation worse, as he was left with constant pain in both the elbow and the shoulder.
The MA found a combined value of 10% 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 WorkCover Medical Assessment Guidelines.
The appellant requested a re-examination by an MA who was a member of the Appeal Panel but as no demonstrable error has been found, such a re-examination was not necessary.
Fresh evidence
Although the appellant limited his grounds of appeal to incorrect criteria and demonstrable error, he also sought to rely on fresh evidence. This took the form of a statement by
Mr Bellenger dated 20 October 2020, and a further report from Mr Bellenger’s medico-legal specialist, Dr Medhat Guirgis dated 16 October 2020, which the appellant seemed to assume were admissible as of right.Section 328(3) of the 1998 Act provides:
“328 Procedure on appeal
(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
Mr Bellenger’s statement concerned the assessment he underwent with the MA.
Mr Bellenger sought to challenge the MA’s account regarding his scarring, claiming that, contrary to the finding of the MA, his scars were not healed and were not almost invisible. He agreed that he had told the MA that the scarring did not trouble him, but said that he was conscious of his scarring and wore long sleeve shirts as a result.Mr Bellenger then challenged the MA’s report that there was normal wrist and hand function, which Mr Bellenger said was not true, as he did have a restricted range of wrist and hand function. He said that he had tried to straighten the wrist with the MA and had trouble doing so.
The MA was alleged to have commented that the tendons were not functioning, saying “that is the tendons are not functioning right”.[1]
[1] Appeal papers page 14.
Mr Bellenger noted that the MA did not refer to complaints he made of severe pain “either in the wrist, shoulder or elbow and that can be associated swelling” [sic]. He also alleged that he told the MA “I often get tingling feeling and asked him around the scar area” [sic][2].
[2] Appeal papers page 14.
Mr Bellenger challenged the MA’s findings of no evidence of any nerve damage, stating that that finding was not correct as he often had either pain with swelling or tingling and numbness sensations “either at the scarring area, the wrist, the elbow or the left shoulder”.[3]
[3] Appeal papers page 14.
Mr Bellenger alleged that whilst the MA used a goniometer, he only measured “the movement up over my head and out the front”.
It was alleged that the MA did not use the goniometer to measure any other movements.
It was alleged that “[the MA] only viewed the measurement fur the left arm to the back movement, nor the movement towards my side” [sic].
It was alleged further that the MA stood about 3 metres away and said “that’s about right, we’ll give that because it looks better”.
Mr Bellenger alleged that the whole examination only took less than 15 minutes.
The respondent objected to the receipt of this evidence. It referred to the well-known authority of Lukacevic v Coates Hire Operations Pty Limited [4]. It relied on dicta at [66] that an appeal panel was not well equipped to resolve a factual dispute over the assessment process and referred to Hodgson JA’s judgment in which he said (Handley AJA agreeing, Giles JA dissenting):
“As Handley AJA points out, an Appeal Panel is not well equipped to resolve a factual dispute over what occurred at an approved medical specialist's medical examination. The approved medical specialist is a competent but not compellable witness ‘as to matters given in a certificate ...’ ( WIM Act , s 325(4)); whether the competence would extend to evidence of what occurred at a medical examination, and whether the approved medical specialist's notes could be called for ( WIM Act , s 324(1)(b)) may be debateable, but even if it would and they could, the party seeking to reply to complaint over what occurred may have difficulty in doing so. Further, no encouragement should be given to an unscrupulous party alleging deficiency in the conduct or recording of a medical examination, and thereby achieving medical examination by the Appeal Panel because dispute over the allegation cannot readily be resolved. This is a particular concern in the assessment of psychiatric or psychological injury, less dependent on objective symptoms”.
[4] [2011] NSWCA 112 (Lukacevic).
The observations of a worker who has an interest in the outcome of the assessment must be approached with caution. Mr Bellenger has made a number of allegations as to what was said and what he observed some three weeks after the publication of the MAC, which denied him any entitlement to compensation.
Mr Bellenger was relying on his memory after that period of time, and we do not accept as probative the assertions as to what the MA said or did. Indeed many of his allegations were difficult to follow. Mr Bellenger was an asphalter and did not have the requisite expertise to comment on the assessment by the MA and the matters that he had to take into account.
The description of measurements being taken “of the movement up over my head and out the front using a goniometer” are meaningless in a clinical sense. Mr Bellenger’s assertion that he had nerve damage because he had “pain with swelling” is not tenable as a description of nerve damage, nor is his assertion that he had nerve damage because he had “tingling and numbness” in an alternative selection of sites, none of them of clinical relevance.
Mr Bellenger also sought to rely on a further report from his medico-legal expert, Dr Medhat Guirgis dated 16 October 2020. The purpose of this report was to cavil with the opinion of the MA, which is not a permissible use of an applicant’s entitlement to rely on fresh evidence pursuant to s 328(3) of the 1998 Act. In Topic v Department of Ageing, Disability and Home Care[5] a Medical Panel, in discussing an unrelated issue, said at [25]:
" ... The setting up of the scheme by the legislation in which the opinion of the AMS is held to be binding pursuant to section 326 of the 1998 Act is designed to make the AMS, through his/her training under the auspices of the WorkCover Authority, the final arbiter of the various and usually differing opinions of the medical specialists ... "
[5] [2009] NSWWCCMA 202
The policy evident in the legislation is that the finality of the determination by a Medical Assessor can only be challenged by an appeal to a Medical Appeal Panel, which consists of two specialists and a non-presidential member of the Personal Injury Commission. It is not intended that medico-legal experts be at liberty to cavil with those determinations, for obvious reasons.
The criticism of a MAC by one side would require as a matter of procedural fairness that the expert on the other side be permitted to respond. This would result in an open-ended debate amongst the experts (who could not be viewed as independent, notwithstanding their nomenclature as ‘IMEs’), and would negate the purpose of s 326 that decisions of Medical Assessors be final.
There is of course no impediment to a party raising in its submissions the medical issues that are said to show error on the part of the MA, which issues a party may well have obtained from advice from its retained expert. However, the resolution of such a dispute is a matter for the Appeal Panel.
Moreover, Dr Guirgis has already provided reports dated 30 July 2019 and 5 May 2020 in his capacity as the appellant’s medico-legal expert.
The report of 16 October 2020 contained material that was already before the MA, particularly the series of photographs that were the same as were exhibited to the report of 5 May 2020. Dr Guirgis’s report of 16 October 2020 merely repeated most of what he had said in his earlier reports but with added criticism of the assessment made by the MA, clearly forgetting that assessment by virtue of chapter 1.6a is to be conducted as the injured worker presents on the day of assessment.
Dr Guirgis’s report accordingly offends against the second requirement of s 328(3). Not only was the evidence available to the appellant before the medical assessment but it was in fact available and seen by the MA.
Accordingly, the statement by the appellant dated 20 October 2020, and the further report by Dr Guirgis dated 16 October 2020 are rejected.
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 and 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 appellant made two broad submissions. Mr Bellenger alleged that the MA had applied incorrect criteria, and made a demonstrable error.
Ground 1 – incorrect criteria
As is customary, the MA took a history of the injury, noted Mr Bellenger’s present symptoms, took details of his background, and conducted a physical examination, which included the measurement of the range of motion in the shoulder and elbow, for which worksheets were supplied. The MA noted the investigations, including ultrasound and MRI, and then made his assessment of WPI, which he explained in giving reasons for his conclusion.
In detailing the results of his examination, the MA said:[6]
“Right Upper Extremity
There was a full range of movement at the shoulder, wrist and elbow with normal sensation, normal reflexes and no unilateral muscle wasting.”
[6] Appeal papers page 69.
In considering the report of Dr Robert Breit, the medico-legal specialist retained by the respondent, the MA said:[7]
“…with regard to his left arm movements they were slightly decreased today compared to what was reported by Dr Breit…”
(Emphasis added).
[7] Appeal papers page 72.
It is relevant to note at this point that the appellant did not appear to notice that his submissions regarding these two statements by the MA referred to different upper extremities, as will be seen.
With regard to the left upper extremity, the findings on examination by the MA were:[8]
“There were scars on the shoulder for his arthroscopic surgery which were well healed and almost invisible. There was a curved scar over the cubital fossa in the elbow which was not tender and very well healed and almost invisible. Mr Bellenger was not particularly conscious of the scar or its position.
There was a restricted range of movement at the shoulder and elbow (please see the attached worksheet). There was normal wrist and hand function. There was no sensory impairment. Reflexes were intact and there was no unilateral muscle wasting.”
[8] Appeal papers page 70.
The MA concluded his findings on examination by saying:
“No other physical examination was conducted.”
In commenting on the other medical opinions before him, the MA referred to the reports of
Dr Guirgis of 5 May 2020 and 16 June 2020. The MA said:[9]“[Dr Guirgis] assesses the patient as having an 11% upper extremity
impairment at the elbow. However, today the patient in fact had a flexion of 130 degrees measured with a goniometer. The extension lacked 20 degrees. Supination was to 30 degrees and his pronation was to 80 degrees giving him a 5% upper extremity impairment.”
SUBMISSIONS
Appellant
[9] Appeal papers page 72.
Incorrect criteria
The appellant referred to the relevant chapter of the Guides regarding the assessment for the upper extremity and submitted that the MA had erred in three respects, namely assessing the functional capacity of the applicant, the clinical aspect and the clinical and cosmetic evaluation of the appellant.
The appellant submitted that the MA’s finding that there was a full range of movement at the shoulder, wrist and elbow with normal sensation, normal reflexes and no unilateral muscle wasting was an application of incorrect criteria because it differed from the reports of
Dr Guirgis for the applicant and Dr Breit for the respondent. This contrast, the appellant submitted, raised a question of whether the range of motion measurements recorded by the MA were reliable, and it was suggested that the MA had “determined the outcome before the further assessment of the appellant.”The appellant then made a number of submissions on the mistaken assumption that the MA had found the left upper extremity to be normal.
Mr Bellenger then referred to the report of Dr Guirgis dated 5 May 2020, in which Dr Guirgis, relying on Chapter 2.18 of the Guides, allowed 2% upper extremity impairment for a condition he diagnosed of external epicondylitis. This condition had not been noted by either Dr Breit or the MA and, as we understood the submission, the MAC should be revoked to add that further impairment.
The appellant also challenged the finding by the MA that there was no impairment assessable pursuant to the Table for the evaluation of minor skin impairment (TEMSKI). It was noted that Dr Breit allowed a 1% WPI and it was submitted that the assessment by the MA was “contrary to all the reports provided by Dr Guirgis.” In the report by Dr Guirgis dated 5 May 2028 4% WPI was found in this regard.
Demonstrable error
We were referred to Vannini v Worldwide Demolitions Pty Ltd[10] as authority for the unremarkable proposition that a demonstrable error was not simply a difference of opinion, but rather one for which there was no information or material to support.
[10] [2018] NSWCA 324.
Mr Bellenger had suffered a complex injury to his left upper extremity, which had required surgical intervention on two occasions, it was submitted. There was evidence of such an injury before the MA and, as we understood the submission, the demonstrable error was that despite there being material to support a finding of such an injury, the MA ignored it.
Respondent
Incorrect criteria
The respondent submitted that the matters raised by Mr Bellenger could not be defined as criteria, and the allegations of error on behalf of the MA were not allegations that went to the question of whether incorrect criteria had been applied.
Demonstrable error
The respondent referred to Marina Pitsonis v the Registrar of the Workers Compensation Commission[11] in submitting that the reasons of an administrative decision maker should not be construed minutely and finely with an eye keenly attuned to the perception of error. We regard that submission as quite restrained, bearing in mind the fundamental misconception that underpinned Mr Bellenger’s appeal.
[11] [2008] NSWCA 88.
DISCUSSION
It can be seen that Mr Bellenger’s appeal is based on a misconception. As we have already indicated, the appeal was based on a finding by the MA that the right upper extremity was normal. There is no doubt regarding that proposition. Regrettably, the appellant failed to realise that the subject left upper extremity had not been found to be normal by the MA. He found a restricted range of movement in the shoulder and elbow and no evidence of sensory impairment.
The degree of the restriction in the range of movement was a matter for the MA, and inasmuch as the appellant may have been intending to compare measurements made by
Dr Guirgis and/or Dr Breit at different times, the MA is entitled to the presumption of regularity, that attends administrative decisions. In Jones v Registrar Workers Compensation Commission[12] James J said at [50]:“…There is a presumption of regularity that the AMS had performed such tests as might be required to determine whether the range of motion in the cervical spine was symmetrical or asymmetrical. The medical science the second defendant [the AMS] was applying was not controversial and his reasons were not required to be extensive or detailed.”
[12] [2010] NSWSC 481.
James J had earlier referred to the presumption of regularity at [36], adopting the dicta of the Court of Appeal in Bojko v ICM Property Service Pty Ltd.[13]
[13] [2009] NSWCA 175
Whilst presumptions are rebuttable, the mere fact that, at other times, measurements were different to those taken by a MA is not sufficient to do so.
In relation to the submission regarding Dr Guirgis’s diagnosis of external epicondylitis, whilst the MA noted a restricted range of movement at the elbow, he did not make any specific finding, nor did he directly consider Dr Guirgis’s epicondylitis diagnosis. However, we have indicated the explanation the MA gave as to his findings about the elbow.
Chapter 2.18 of the Guides states:[14]
“Epicondylitis of the elbow
This condition is rated as 2% UEI (1% WPI). In order to assess impairment in cases of epicondylitis symptoms must have been present for at least 18 months. Localised tenderness at the epicondyle must be present and provocative tests must also be positive. If there is an associated loss of range of movement, these figures are not combined, but the method giving the highest rating is used’.(Latter emphasis added).[14] Guides page 12.
The worksheet of the MA showed that he found 3% upper extremity impairment, which is a higher value than that permissible for a finding of epicondylitis. It may be that the MA did not bother to discuss epicondylitis per se for this reason. In any event, the result would be the same.
Finally, we are not persuaded that any error has been demonstrated in the assessment of scarring. The appellant argued that, as Dr Guirgis had found 4% WPI, and Dr Breit 1% WPI, that therefore the MA had erred in finding no impairment. The MA had the advantage of inspecting the scar on the date of the assessment, and he also had available the photographs that had been exhibited by Dr Guirgis. As indicated, the MA gave his reasons as to why the scar did not attract any rating. Whilst other minds might differ, the MA was entitled to draw the conclusions he did, particularly bearing in mind that pursuant to Chapter 14.6 the Guides provide that uncomplicated scars for standard surgical procedures are not of themselves rateable.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 September 2020 should be confirmed.
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