BRS v Bxi
[2024] NSWPICMP 104
•27 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BRS v BXI [2024] NSWPICMP 104 |
| APPELLANT: | BRS |
| RESPONDENT: | BXI |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Paul Curtin |
| MEDICAL ASSESSOR: | Malcolm Linsell |
| DATE OF DECISION: | 27 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal in respect of the impairment assessment for scarring; appeal on the basis of the application of incorrect criteria; Appeal Panel satisfied as to error and considered a re-examination was necessary; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 June 2023 BRS (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael McGlynn, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 May 2023.
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, 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 (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 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 Procedural Direction PIC7.
The appellant requested a re-examination by a medical assessor member of the Appeal Panel. As the Appeal Panel found error, a re-examination was considered necessary.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) statement of the appellant dated 1 June 2023.
The appellant submits that the evidence is relevant because it goes to the adequacy of the Medical Assessor’s assessment.
The appellant submits that the evidence was not available and could not reasonably have been obtained before the medical assessment because it concerns the manner in which the assessment was conducted.
The Appeal Panel determines that the evidence should not be received on the appeal. The Appeal Panel has been satisfied as to error and considered that a re-examination was necessary.
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 Malcolm Linsell of the Appeal Panel conducted an examination of the worker on 15 December 2023 and reported to the Appeal Panel.
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.
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 matter was referred to the Medical Assessor as follows:
The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 11 December 2020
· Body parts/systems referred: Right Upper Extremity
Scarring - TEMSKI
· Method of assessment: Whole Person Impairment
The Medical Assessor issued a MAC as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. Right Upper Extremity
11/12/2020
Ch 2
Ch 16
9%
0%
9%
2. Skin - scarring
11/12/2020
Ch 14, pages 73-76, paragraph14.1 to 14.11 & TEMSKI
Ch 8, Page 178, Table 8-2
4%
0%
4%
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
13%WPI
The worker appealed. The appeal concerns only the assessment of 4% whole person impairment (WPI) for skin – scarring. There is no appeal by either party concerning the assessment of 9% WPI for the right upper extremity.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and made demonstrable errors which included the following:
(a) errors in applying Table 8-2 of AMA5, and
(b) errors in applying Table 14.1 of the Guidelines.
The respondent employer, BXI (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make a demonstrable error and the MAC should be confirmed.
The Appeal Panel was satisfied that error had been made by the Medical Assessor and in these circumstances the Appeal Panel considered it necessary for the worker to undergo a re-examination and Dr Linsell, a Medical Assessor on the appeal panel was appointed to undertake the re-examination. Dr Linsell conducted the re-examination on 15 December 2023 and reported to the Appeal Panel as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W117/23 |
Appellant: | BRS |
Respondent: | BXI |
Date of Determination: | 21 November 2023 |
Examination Conducted By: | Malcolm Linsell |
Date of Examination: | 15 December 2023 |
1. The workers medical history, where it differs from previous records.
1. BRS came to Australia from Austria in 1986.
2. He was a chef by trade and cooked in various locations including his own restaurant until 2003.
3. He owns a shop in Camden and ran this as an Austrian café for 2 years between 2013 and 2015.
4. He has subsequently sold the business but still owns the shop.
5. He has worked at BXI in various locations between 2003 and 2013, then again between 2015 and 2019.
6. In 2019 he moved to the flagship BXI store, and he has now returned to normal activities selling appliances.
7. He recalls the day of the incident, 11 December 2020, very clearly.
8. He was demonstrating the airflow power of a rangehood, the motor of which was situated in a cupboard below waist level.
9. He was moving his dominant right hand back and forth in front of the motor (a demonstration he had performed many times before) to explain the power of the airflow, when the motor unexpectedly sucked his hand into the fan blades.
10. He found out later, someone had changed the motor without informing him.
11. This subsequently lacerated the dorsal, distal aspect of the right middle finger, right ring finger and right little finger.
12. His subsequent management has been accurately reported in previous reports other than the fact the K wire used to fuse the DIP joint of the RRF is still in place and can be felt through the skin.
2. Additional history since the original Medical Assessment Certificate was performed.
1. BRS now uses his non dominant hand left hand for many more daily tasks such as wiping his bottom, brushing his teeth and opening a jar.
2. When I pointed out that these limitations were primarily due to the fusion of the DIP joints rather than the impact of his scars, and that his finger movement limitations had already been accounted for in his assessment, he understood and accepted I was more focussed on his limitations due to his scarring.
3. Hence, his main limitations are that his fingers are cold and stiff, particularly in the mornings, and he has a daily routine of exercises and massage to restore functionality.
4. The dorsum of the right middle finger and right ring finger have very limited sensation and the skin is easily irritated and broken, eg when wearing gardening gloves, or changing the battery or spark plugs in his car. It is therefore not unusual for the skin to be broken and bleeding after manual work, particularly in a confined space.
5. The scar on his abdomen remains itchy and irritating, particularly as it is located where the band of his underwear sits.
6. When in the sun, the scars on his fingers become red, itchy and irritated.
7. Every day he uses Biooil and Fisiocream on his fingers and if swollen, uses Hirudoid cream as well.
8. BRS has been seeing a psychologist every fortnight for the last 6 months. He experiences fear and flashbacks near a fan or anything spinning. If not already arranged, I would suggest a psychological opinion for BRS.
9. In assessing his Activities of Daily Living, I considered each of the following (leaving out those activities that are primarily impacted by his inability to move his joints).
SELF-CARE
BRS has no limitations with self-care due to his scarring.
COMMUNICATION
BRS has no limitations with his communication due to his scarring.
PHYSICAL ACTIVITY
BRS’s physical activity is unhindered.
SENSORY FUNCTION
BRS has diminished sensation on the dorsum of his right middle and right ring fingers and as previously mentioned these areas are easily damaged when performing hand movements in a confined space. The sensation on the tip of these fingers is increased particularly on the right ring finger over the embedded K wire. The sensation on the volar aspects of his fingertips is normal.
NONSPECIALIZED HAND ACTIVITIES
BRS plays competition golf twice a week and although his injury and inability to move his joints caused him to change his grip, he has now managed to get his handicap back down to 8!
TRAVEL
BRS has no limitations with travel
SEXUAL FUNCTION
BRS has no limitations with sexual function.
SLEEP
BRS’s sleep is occasionally broken in the cold weather when his fingers get cold and wake him up.
3. Findings on clinical examination
1. I found BRS to be personable and he was able to communicate the events of the incident and beyond without embellishment.
2. When I explained I was primarily interested in determining the extent of scarring rather than limitation of movement, he understood and accepted this.
3. The scar on the dorsum of the right middle finger measures 24mm x 14mm. It has no normal nail but 3 nail remnants. Proximally there is a small scab over recently damaged skin. The scar is discoloured, unsightly and clearly visible from across the room.
4. The scar on the dorsum of the right ring finger measures 30mm x 18mm. It also has no normal nail but 3 nail remnants. Proximally there is a slightly larger scab over recently damaged skin. The scar is discoloured, unsightly and clearly visible from across the room.
5. The right little finger has a small reddish scar at the base of the nail bed, but the nail is normal, and this scar appears minor.
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
6. In the right groin there is a 11cm x 2cm horizontal linear scar. The scar is atrophic, discoloured with visible suture marks.
[IMAGE UNABLE TO RENDER]
7. The right great toenail is thickened and ingrown, but otherwise appears unremarkable.
[IMAGE UNABLE TO RENDER]
4. Results of any additional investigations since the original Medical Assessment Certificate
No further investigations were required.
1. SUMMARY
· summary of injuries and diagnoses:
1.Scars of the dorsum on the right middle, ring and little fingers including nail remnants.
2.Scar in the right groin.
3.The above scars resulted from groin flap coverage to the dorsum of the right middle and ring fingers and a failed nail graft.
· consistency of presentation
Consistent
2. EVALUATION OF PERMANENT IMPAIRMENT
My answers to the following questions regarding the assessment of impairment and/or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:
a.Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body par/system: No.
b.Have all body parts/systems stabilized/reached maximum medical improvement? Yes.
c.If not, please list those injuries not yet stable/at maximum medical improvement: N/A
d.If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? N/A
e.Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No.
f.If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. N/A
3. THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
My assessment is based on the BRS’s clinical notes and previous statements, as well as the history as supplied by BRS to me personally and upon my examination of his skin.
4. REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment
·The examination and assessment of the Right Upper Extremity Impairment of 9% WPI performed by Dr Michael McGlynn in my view was performed expertly and accurately.
·I have therefore accepted this value as accurate, and I did not repeat this assessment.
·My assessment of BRS is therefore focussed on his scarring.
·In my opinion, according to AMA5 Table 8-2, p.178, the scarring and associated symptoms are equivalent to a Class 1 Impairment of the Whole person, because the skin disorder signs and symptoms are present, and there are a few limitations in the performance of activities of daily living, with exposure to the sun and cold temporarily increasing his limitation, and he requires intermittent treatment such as daily hand exercises and skin moisturisation.
·NSW Workers Compensation Guidelines 4th Edition paragraphs 14.7 and 14.8 then direct use of table 14.1 Table for Evaluation of Minor Skin Impairment (TEMSKI).
·In my view, the impairment lies in the 5-9% WPI of TEMSKI because,
oClaimant is conscious of the scars.
oThere is distinct colour contrast with surrounding skin.
oClaimant is easily able to locate the scars.
oTrophic changes are visible.
oSuture marks are clearly visible.
oAnatomic location of the scars is usually and clearly visible with usual clothing.
oContour defect is clearly visible.
oLimitation in the performance of a few ADL and exposure to physical agents eg sunlight, cold, may temporarily increase limitation. Please note there is no limitation of grooming or dressing due to his scars, however in my view an impairment of 5-9% is the best fit.
oIntermittent treatment only is required.
oSome adherence is present.
·In my opinion, BRS’s WPI for skin scarring lies at the lower level of this range at 5% WPI.
·Including the assessment for the Right Upper Extremity Impairment of 9% WPI, the combined total is 14% WPI.
Body Part or system
Date of injury
Chapter, page and paragraph number in NSW worker’s compensation guidelines
Chapter, page and paragraph figure and table numbers in AMA5 Guides
%WPI
% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality
Sub-total/s % WPI (after any deductions in column 6)
1. Skin
11/12/20
Chapter 14
Para 14.2, 14.4, 14.5, 14.7, 14.8, 14.9 p73
Table 14.1 TEMSKI
Chapters 1 & 8
Table 1-2 p4
Table 8-2
p178
5%
0%
5%
2. Right Upper Extremity
9%
COMBINED WPI 14%
In making that assessment I have taken account of the following matters:-
·Whilst BRS does have limitation with Self-Care and grooming, this is related to the fusion of his DIP joints rather than the scarring. Nevertheless, an impairment in the range of 5-9% is in my view the best fit.
·Similarly, his limitation with Nonspecialized Hand Activities (inability to grip a knife, open a jar) and limitation with Communication (typing and writing) are related to his fused joints.
·The limitations to the fusion of his joints have already been accounted for with the assessment of the Right Upper Extremity at 9% WPI.”
The Appeal Panel adopts the findings and the report of Dr Linsell.
This means that the MAC will need to be revoked and a new MAC issued.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 May 2023 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
Matter number: | W117/23 |
Applicant: | BRS |
Respondent: | BXI |
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 Michael McGlynn 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Right Upper Extremity | 11/12/2020 | Ch 2 | Ch 16 | 9% | 0% | 9% |
| 2. Skin - scarring | 11/12/2020 | Chapter 14, Para 14.2, 14.4,14.5, 14.7, 14.8, 14.9, p 73, Table 14.1 & TEMSKI | Chapters 1 & 8, Table 1-2 p 4 Table 8.2 Page 178 | 5% | 0% | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 14%WPI | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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