Bruce v Secretary, Department of Education
[2024] NSWPICMP 460
•12 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bruce v Secretary, Department of Education [2024] NSWPICMP 460 |
| APPELLANT: | Robert Neil Bruce |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 12 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment of hand injury; Medical Assessor (MA) alleged to have failed to properly apply the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 because he did not make an assessment of the lack of sensation described as a peripheral nerve injury; Held – MA was correct to assess of digital nerve impairment rather than peripheral; scarring omitted from referral; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 April 2024 Robert Neil Bruce lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Rob Kuru, who issued a Medical Assessment Certificate (MAC) on 27 March 2024.
Mr Bruce relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
Mr Bruce also asked that the MAC be referred back to the Medical Assessor under s 329 of the 1998 Act because the Medical Assessor had omitted to assess scarring. The Secretary, Department of Education (the Secretary) agreed that the Medical Assessor had failed to assess scarring.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor had made a demonstrable error in his assessment of Mr Bruce’s left upper extremity. Because the appeal was to proceed, the assessment of scarring was not referred to the Medical Assessor for reconsideration.
We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the 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).
RELEVANT FACTUAL BACKGROUND
Mr Bruce was employed by the Secretary as a general assistant in a school. On 20 October 2021 he was using a ride on lawn mower when his left hand became jammed between the mower and a tree. Mr Bruce suffered an injury to his left ring and little fingers, as a result of which he underwent surgery on two occasions.
The Medical Assessor was asked to assess Mr Bruce’s left upper extremity. He assessed 5% whole person impairment in respect of his middle, ring and little fingers and did not assess scarring.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Bruce to undergo a further medical examination because there is sufficient information in the file to determine the appeal.=
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Bruce submitted that the Medical Assessor failed to properly apply the Guidelines because he did not make an assessment of the lack of sensation, described as a peripheral nerve injury. Referring to paragraphs 3.34 and 17.4 of the Guidelines, Mr Bruce submitted that table 17-2 of AMA 5 provides “that range of movement and peripheral nerve injury are to be combined in order to determine final WPI.”
Mr Bruce noted that the Medical Assessor considered that he was not required to assess scarring but said that it was clearly “before the parties” and that the independent medical examiners had both assessed it. He sought either reconsideration by the Medical Assessor under s 329 of the 1998 Act or re-examination.
In reply, the Secretary observed that the Medical Assessor assessed the lack of sensation in Mr Bruce’s finger as a digital nerve injury not a peripheral nerve injury. Though the Medical Assessor used the language of paragraph 16.5 and Table 16-10 of AMA 5 which refer to peripheral nerve disorders, the Secretary said that his worksheet showed that he in fact applied the criteria of paragraph 16.3 of AMA 5. The Secretary conceded that scarring should have been assessed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for or resolve errors which are not part of the grounds on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor summarised the injury and Mr Bruce’s treatment, noting that he underwent “debridement and repair with open reduction and internal fixation of the little finger, middle of the phalanx and extensor tendon repair” immediately after the injury. Because of stiffness in his ring and little fingers, he underwent an extensor tenolysis on 4 July 2022 with removal of the plate from the little finger and a flexor tendon release. The Medical Assessor noted that Mr Bruce continued to have restricted flexion in his fingers with an aching in the fourth and fifth fingers. The tip of his middle finger is sensitive.
The Medical Assessor measured the range of motion of Mr Bruce’s wrists and all of his fingers. He said:
“There was Grade IV sensory alteration over the radial aspect of the fourth finger. There was altered sensation over the pulp of the third finger. Sensation was otherwise intact.”
The Medical Assessor assessed 5% WPI, providing the following reasons:
“With respect to the report by Dr Harrington dated 16 October 2023, I found slightly more restricted range of motion in the left fourth and fifth digits and hence, have assessed 5% rather than 3% whole person impairment for restricted movement. I have not been asked to assess scarring/TEMSKI.
With respect to the report by Dr Bodel dated 9 May 2023, he has assessed 9% hand impairment for the middle finger, predominantly on the basis of restricted movement and amputation of the tip of the finger. The operation report does not detail amputation of the tip of the finger and I did not detect restricted motion. I have not added impairment for restriction of wrist movement, which I did not detect at examination.”
He attached his worksheet to the MAC.
In his certificate, the Medical Assessor said that he had assessed Mr Bruce by reference to the following pages and paragraphs of AMA 5:
“438 16.1
439 16.2 and 16.3
448 16.7
461 16.21
463 16.23
464 16.25
467 16.28
469 16.31”
The Medical Assessor’s worksheet shows that he assessed 5% digit impairment (or 1% hand impairment) for the middle finger as a result of sensory loss, 41% digit impairment (or 4% hand impairment) for the ring finger as a result of 30% abnormal motion and 15% sensory loss and 0% digit impairment for the little finger. He assessed 9% hand impairment or 8% upper extremity impairment (UEI) which converts to 5% WPI.
We observe that the Medical Assessor has made a slight error in relation to the metacarpophalangeal (MP) joints of the three relevant digits of Mr Bruce’s left hand, in that he awarded 0% finger impairment for extension of 0° whereas AMA 5 indicates this should be 5% of the digit.
This results in a very slight alteration of the impairment of the middle finger, but the ring finger and little finger remain the same. The Medical Assessor found 9% impairment of the hand whereas he should have found 10%. These figures convert to 8% and 9% upper extremity impairment respectively, both of which convert to 5% WPI, so that the error has no practical effect.
Nerve injury
Mr Bruce argued that the Medical Assessor did not assess “lack of sensation (peripheral nerve injury)” and that it should have been combined with the loss of the range of motion. There is no doubt that Mr Bruce has suffered a nerve injury but it fell to be assessed as a digital nerve injury and not a peripheral nerve injury. We note that the paragraphs of the Guidelines cited in Mr Bruce’s submissions have no relevance to the assessment – paragraph 3.34 is relevant to the assessment of the lower extremity and paragraph 17.4 deals with the assessment of pain. It is important to remember that the Guidelines adopt AMA 5 in most cases and that their purpose is to explain how AMA 5 operates in the assessment of permanent impairment under the 1998 Act. Mr Bruce’s submissions focused on a failure to apply the Guidelines without reference to AMA 5.
On 3 February 2022 Dr McClelland saw Mr Bruce at the request of his general practitioner. He said:
“On examination today, Mr Bruce is well. He is maintaining full extension In all digits. He has hypersensitivity of the partially detipped area of his middle finger, but reasonable sensation in the ring and small. He is quite stiff in flexion with his flexion parameters for the ring finger of 84/84/20 (64 on the right) and the small finger 84/74/16 (74 on the right). His grip strength is 30 kg on the left compared to 52 on the right. He does have some tenderness around the ring finger Al and A2 pulleys with some crepitans [sic] on tendon movement. There is mild diffuse tenderness around the small finger middle phalanx, and certainly significant scarring in that area.
In summary, Mr Bruce had an extensive crush injury that seems to be complicated by postoperative pain and stiffness.”
Dr McClelland recommended hand therapy but by May 2022 Mr Bruce sought surgery which was carried out on 4 July 2022. On 14 July Dr McClelland noted that he had “persisting altered sensation in the ring finger radial digital nerve where we had do [sic] most of our neurolysis.”
Neither of the doctors who examined Mr Bruce for the purpose of the proceedings assessed his impairment by reference to peripheral nerve damage but both assessed the digital nerve damage.
Dr Bodel assessed Mr Bruce at the request of his solicitors and reported on 9 May 2023. After describing the injury and treatment, Dr Bodel said:
“He was left with a lot of pain when attempting to flex the fingers and Dr McClelland therefore recommended a further surgical exploration. He opened up the dorsal wounds and found that there was some tethering of the extensor tendons to the underlying deep structures which needed to be tenolysed. The nerves were intact except for the radial side of the middle finger which has left him with significant numbness along that side as well as the numbness just over the pulp of the tip of the middle finger. This surgery and intense post-operative hand therapy has regained a useful range of movement but his clinical circumstance has now stabilised with ongoing disability.”
Dr Bodel said he assessed 13% WPI in accordance with the worksheet he attached. He assessed 1% for scarring. The worksheet shows that he assessed 9% hand impairment in respect of the middle finger, 5% for the ring finger and 1% for the ring finger, assessing each by reference to abnormal motion, amputation and sensory loss. He observed sensory loss in respect of Mr Bruce’s middle and ring fingers. He also assessed 5% WPI in respect of Mr Bruce’s wrist. The worksheet shows that Dr Bodel in fact assessed 18% upper extremity impairment which converted to 11% WPI and to which he added 2% for scarring.
Dr Harrington assessed Mr Bruce on behalf of the Secretary and reported on 16 October 2023. He set out his calculations:
“Middle Finger:
Using Table 16-7 for sensory deficit at the tip of the middle finger (both nerves), he has 10% digit impairment.
Using Table 16-1 this converts to 2% hand impairment.
Ring Finger:
Using Table 16-7 for the sensory deficit, he has a partial radial nerve impairment at 70% of the digit which equates to 11% digit impairment.
Using Figure 16-21 for restricted movement at the DIP, he has 10% finger impairment.
Using the Combined Values Chart, this equates to 20% digit impairment for the ring finger.
Using Table 16-1 this converts to 2% hand impairment.
Little Finger:
Using Figure 16-21 for the DlP he has 5% finger impairment for flexion to 60°.
Using Figure 16-23 for the PIP he has 6% finger impairment for flexion to 90°.
Using Figure 16-25 for the MCP he has 6% finger impairment for flexion to 80°.
These are combined to 16% digit impairment for the little finger.
Using Table 16-1 this converts to 2% hand impairment.
Total:
These hand impairments are added to 6%. Using Table 16-2 this converts to 5% upper extremity impairment. Using Table 16-3 this converts to 3% WPI.
Scarring:
He has scars on the volar surface and dorsum. There is some deformity, i.e. flexion causes the tip of his finger to go towards the ulnar border rather than the scaphoid. The scars combined, including this dysfunction caused by tethering, would equate to 2% WPI.
Total: For sensory loss, restricted movement and scarring, Mr Bruce has 5% WPI.”
Assessment under AMA 5 and the Guidelines
The assessment of sensory impairment due to digital nerve lesions is described in paragraph 16.3 of AMA 5. It involves a three step process. Though the Medical Assessor did not set out the steps in the MAC, the medical members of this Panel have reviewed his assessment and are satisfied that the assessment of 15% digital impairment for sensory loss in Mr Bruce’s middle and ring fingers has been appropriately undertaken. The Medical Assessor illustrated the area of sensory loss on the worksheet and referred to the appropriate tables in the certificate.
The first step the Medical Assessor was required to undertake is to assess the quality of sensory loss according to Table 16–5 on page 447 of AMA 5, using two point discrimination. The result is either partial (50%), or total (100%).
As the Secretary pointed out, the Medical Assessor’s reference to Grade 4 sensory loss uses the language of Table 16-10 which applies to the assessment of peripheral nerve disorders. However, the reference to Grade 4 confirms that the sensory loss suffered by Mr Bruce is partial and not total for the purpose of Table 16-5.
The second step is to determine the percentage of the digit involved, using the top scale of Table 16-7 on page 448, headed “Digit Impairment for Transverse and Longitudinal Sensory Losses in Index, Middle, and Ring Fingers Based on the Percentage of Digit Length Involved”. Transverse loss involves damage to both digital nerves and longitudinal loss applies to either the ulnar digital nerve or radial digital nerve.
The third step is to determine the impairment of the digit by referring to table 16-7, step two having indicated which row of the table to use.
In Mr Bruce’s case, the Medical Assessor observed altered sensation over the pulp of the middle finger, representing a transverse loss. Mr Bruce experienced altered sensation rather than total sensory loss and the Medical Assessor’s diagram indicates that it was over 20% of the length of the finger, resulting in 5% impairment of the digit.
In respect of his ring finger, Mr Bruce experienced partial sensory alteration over the radial aspect of his finger for its full length, resulting in 15% impairment of the digit.
There is no error in the Medical Assessor’s assessment of the sensory loss arising from the injury to the digital nerves of Mr Bruce’s middle and ring fingers.
Scarring
Both Dr Bodel and Dr Harrington had assessed scarring and it should have been assessed by the Medical Assessor. It was part of the medical dispute in the contemplation of the parties and identified in the documents in the file.[3]
[3] See Skates v Hills Industries Ltd [2021] NSWCA 142.
The Medical Assessor’s omission to assess scarring may have been avoided if the Application to Resolve a Dispute had properly pleaded the injury as “left upper extremity… and TEMSKI scarring.” We are aware that it is the Commission’s practice to send a draft referral to the parties. The referral in this case was limited to the left upper extremity. If the referral had been checked by the parties’ lawyers and amendment sought, it would have been clear to the Medical Assessor that he was required to consider scarring.
Because Dr Bodel and Dr Harrington agree that 2% is the appropriate figure, we accept that is the appropriate assessment, particularly when Dr Harrington’s description of the dysfunction caused by the scar is considered.
Conclusion
Mr Bruce did not submit that the Medical Assessor should have assessed permanent impairment in respect of his wrist. We observe that, when 5% UEI allowed for the wrist is removed, Dr Bodel’s assessment totals 10% WPI. (14% UEI converts to 8% WPI, combined with 2% WPI for scarring). That assessment is below the threshold for the award of compensation.
Because of omission of scarring, we have determined that the MAC issued on
27 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W9234/23 |
Applicant: | Robert Neil Bruce |
Respondent: | Secretary, Department of Education |
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 Rob 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 NSW workers compensation guidelines | 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) |
| Left upper extremity | 20/10/21 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 5% | nil | 5% |
| TEMSKI | 20/10/21 | Chapter 14 Pages 73-74 | 2% | nil | 2% | |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0
3
0