Bunfield v State of New South Wales
[2021] NSWPICMP 1
•2 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bunfield v State of New South Wales [2021] NSWPICMP 1 |
| APPELLANT: | James Bunfield |
| RESPONDENT: | State of New South Wales |
| Appeal Panel: | D Moore Dr McGroder Dr Bodel |
| DATE OF DECISION: | 2 March 2021 |
| catchwords: | WORKERS COMPENSATION – appeal against decision of Medical Assessor – error in referral – scarring not included – no re-examination required because scar adequately described –balance of the appeal unsuccessful – medical assessor correctly assessed the right hip and correctly made a s 323 deduction consistent with the evidence – appellant’s submissions no more than mere disagreement with the medical assessor – MAC confirmed |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 November 2020 James Bunfield lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Tommasino Mastroianni, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 20 October 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):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The Registrar 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 Workers compensation medical dispute 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 Workers compensation medical dispute 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 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 Workers compensation medical dispute assessment guidelines.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine the appeal.
It seems that the appellant wished to have a re-examination principally on the grounds that the referral incorrectly failed to include the body part Skin, as claimed in the Application to Resolve a Dispute (ARD).
This error was noted by the delegate of the Registrar who said:
“I note the appellant’s submissions concerning the assessment of scarring. The respondent acknowledges that it was agreed that scarring was to be referred for assessment. Unfortunately, this was not included in the referral and the appellant failed to bring this to the Commission’s attention when invited to do so. As the respondent points out, the AMS has examined the scar but not provided an assessment of impairment.
The most efficient use of the Commission’s resources is for the Panel to include an assessment of scarring in its consideration of the appeal. Accordingly, the referral is amended to include scarring.”
We note that the AMS has examined the scar, and for these reasons we do not consider that a re-examination is required.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that there was an error as regards the skin (scarring) to which we have already referred. In addition, the appellant submits that the AMS erred in that he failed to properly assess him under the right hip replacement criteria of Table 17-34 of the AMA 5 Guidelines, and made a deduction for pre-existing injury or abnormality contrary to the evidence.
In reply, the respondent submits that aside from the scarring issue, no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the AMS for assessment of whole person impairment (WPI) in respect of the lumbar spine and the right lower extremity (hip) (and scarring) resulting from an injury on 26 May 2017.
The AMS obtained the following history:
“Mr Bunfield joined the Police Force in 1987 and was medically retired in 2001…
In 2016 he developed back pain and leg pain, predominantly in the left leg for which he had an L4/5 and L5/S 1 decompression laminectomy on 2 December 2016. This surgery was done as a private patient.
He made an excellent recovery from the surgery and was asymptomatic, having no further leg symptoms or back pain by the time he had the injury on 25 May 2017.
Mr Bunfield states that there were heavy security doors in the control room and on 25 May 2017, as he pushed the security door to open it, the door got stuck. He then pushed harder and the door gave way he felt a pop in the lower back. He said that his back was very sore, but he managed to finish his shift…
After a couple of months, he complained of increasing right hip pain which Dr New initially thought was coming from the back. He arranged an MRI which revealed degenerative changes in the hip. He was referred to an orthopaedic specialist. Mr Bunfield consulted a number of orthopaedic specialists who all recommended a hip replacement. He had the surgery done by Dr Qurashi on 2 July 2018…”
Present symptoms were described as follows:
“He complains of a constant tightness and discomfort in the lumbar spine. Sudden movements and bending over aggravate his back. Prolonged sitting and walking aggravate his back.
Since the injury in 2017 he gets flare-ups of his back pain which can last a couple of weeks. Recently he had a flare up and he had increased back pain and on this occasion also right leg pain radiating to the right calf.
He says his leg symptoms have fully resolved but the back pain has not settled fully.
He complains of stiffness and tightness in the right hip with no pain per se. He says he cannot walk for more than three to four blocks and this appears to be related to his back rather than his hip. He says he has difficulty with stairs, more so going downstairs and attributes this to having knee replacements.”
As regards his social activities and activities of daily living (ADL’s) the AMS said:
“He is married and has two teenage children. Before the injury he could do housework and garden maintenance. He now has difficulty doing general gardening and the heavier house chores. He used to play golf and go to the gym. He is independent in self-care.”
Findings on physical examination were reported as follows:
“He is a man of stated age of medium build. He walks with a normal gait. He walks on heels and toes without difficulty. He partially squats and is restricted by knee pain.
Examination of the back reveals normal spinal curve. There is a well-healed surgical scar over the lower lumbar segment. There is no muscle guarding or muscle tenderness in the lumbar spine. There is tenderness over the lumbosacral segment.
Back movements were restricted. Flexion allowed fingertips to the tower third of the shins. Extension was half the normal range. Tilt was slightly restricted bilaterally, right equals left. Rotation was restricted slightly to the left and normal to the right.
He gets on and off the couch with no difficulty and is comfortable supine. Examination of the lower limbs reveals flexion contracture of the right knee. He has surgical scars in both knees consistent with the recent surgery for total knee replacements.
Examination of the right hip reveals a 9cm well-healed surgical scar. It is a fine scar with no suture marks. It is an uncomplicated surgical scar. There is no tenderness over the right hip.
Hip movements were normal.
He has normal sensation and normal reflexes in the lower limbs (knee, ankle and hamstring jerks, right equals left). Straight leg raise is normal. Nerve root tension signs are negative.”
After documenting the radiological material he had before him, the AMS summarised the injuries as follows:
“As a result of the incident on 25 May 2017 Mr Bunfield sustained an injury to his back and right hip. My clinical diagnosis is aggravation of pre-existing lumbar disc disease and Musculo- ligamentous strain. Aggravation of pre-existing asymptomatic right hip osteoarthritis.”
When asked “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the AMS said “Yes” indicating the lumbar spine and right hip as being affected.
The AMS assessed 7% WPI in respect of the lumbar spine and deducted one-tenth for the pre-existing condition, leaving 6% WPI.
He assessed 15% WPI in respect of the right lower extremity (hip) and made a similar deduction leaving 14% WPI.
In commenting upon “the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs” the AMS said:
“I note the report of Dr Charles New dated 12/09/19. The doctor assesses DRE Category Ill of the lumbar spine. The claimant had surgery unrelated to the subject accident. I do not agree with the methodology used by Dr New in assessing the back.
As a result of the current injury he falls into DRE Lumbar Category II.
Dr New assesses 30% WPI for the hip replacement. My clinical findings show improvement since that examination and on my findings, he had a good result. I note that Dr New made no deduction for the pre-existing osteoarthritis.
I note the report of Dr Bentivoglio dated 30 December 2019. He only assesses the back for the effects on ADLs. I disagree with the methodology used by Dr Bentivoglio to assess the back injury. I have assessed Mr Bunfield as DRE Category II and made a deduction for pre-existing condition.
I found the same impairment for the right hip replacement. Dr Bentivoglio deducts pre-existing impairment based on cartilage interval found on x-rays in September 2017. I did not review those x-rays; however, I note on file a report of an x-ray of the right hip dated 12 September 2017 reported by Dr Thakkar where he states that the joint space of the right hip is preserved, and the articular margins are normal.
In my opinion there is pre-existing arthritis in the hip and I have made a one-tenth deduction.”
Dealing firstly with the issue of scarring, the AMS said: “Examination of the right hip reveals a 9cm well-healed surgical scar. It is a fine scar with no suture marks. It is an uncomplicated surgical scar.”
Table 14.6 of the Guidelines (page 73) states that uncomplicated surgical scars rate at 0% WPI. In these circumstances, given the AMS’ description of the scar, we cannot see that it rates any impairment.
As the respondent correctly points out:
“Table 14.1 for the evaluation of minor skin impairment in the AMA 5 Guidelines provides that scarring or a skin condition attracts 0% WPI where the claimant is not conscious or barely conscious of the scar, there is a good colour match with the surrounding skin, the claimant is unable to easily locate the scar, there are no trophic changes, any staples or suture marks are barely visible, the anatomic location is not clearly visible with usual clothing, there is no contour defect, there is no effect on any ADL and either no treatment or only intermitted treatment is required. This is assessed in accordance with the principle of ‘best fit’.”
Applying the ‘best fit’ principle, we are satisfied that the scar on the appellant’s right hip attracts 0% WPI.
Dealing secondly with the right hip, the appellant seems to simply suggest that the AMS should have adopted the findings and assessment made by Dr New.
It must be remembered that the AMS saw the appellant on 15 October 2020, over 12 months after he saw Dr New.
The AMS is required to make his assessment on the day of his examination.
In addition, mere disagreement with an assessment is not a proper basis for appeal.
It is perhaps timely at this point to set out the task of an Appeal panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
[24] The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense…”
The appellant’s submissions reflect an attempt to as it were introduce new evidence by setting out line by line various topics such as “pain”, “limp””, and “”supportive device.”
For example, the appellant submits:
“The appellant describes in his statement that he ‘experience[s] chronic pain in my right hip with some stiffness and tightness in the area. The pain increases with walking .... the pain continues at night and disrupts my sleep.’ Dr Charles New made a number of references to the appellant's pain. Dr New assess [sic] that the appellant ‘has debilitating pain in his back and right hip.’ Dr New assessed ‘he has pain in the hip’ and referring to his range on motion assessed ‘these ranges of movement are limited due to pain.’ This evidence is contrary to the AMS assessment although there is no reason provided for the different assessment.”
Contrary to this submission, the AMS did indeed note the appellant’s symptoms as he described them on the day, namely constant tightness and discomfort in the lumbar spine” and “stiffness and tightness in the right hip with no pain per se.”
The appellant appears to confuse symptoms with impairment.
The task of an AMS is to assess impairment, taking into account a number of factors, including symptoms.
The appellant complains that the AMS did not consider a “Supportive device” when Dr New “assessed that the appellant ‘occasionally uses a walking cane.’”
There is no suggestion that the appellant presented to the AMS using a cane, consistent with Dr New’s comment that he “occasionally”” uses one. Again, this reflects more on the appellant’s day to day symptoms rather than the impairment.
The appellant’s submission as regards “stairs” is misconceived. He submits:
“Dr New assessed the appellant as not being able to readily climb stairs. Independent medico legal examiner, Dr John Bentivoglio assessed that the appellant ‘uses a hand rail to climb stairs.’
The AMS assessed that the appellant had ‘difficulty with the stairs, more so going downstairs and attributes this to having knee replacements.’
As the appellant was assessed by Dr New and Dr Bentivoglio prior to the knee replacement procedures, this should be considered in the AMS assessment, rather than a report by the appellant.”
It was the appellant himself who attributed his difficulty with stairs as a consequence of his knee complaints, rather than his hip injury. We can see nothing wrong in the AMS taking account of the appellant’s own self-reporting.
We make the same observations as to the appellant’s submissions regarding “Putting on shoes and socks, Sitting, Public transport, Deformity and Range of motion.”
In other words, the appellant is simply stating that because Dr New commented on these matters, the AMS should similarly have done so, irrespective of any evidence.
We note that in the appellant’s own statement, he made no reference to the sort of detail the appellant now provides.
In short, we are unable to identify any error by the AMS as regards his assessment of the right hip since he took into account not only the appellant’s complaints but also other material including his own findings on examination.
We also note that Dr Qurashi, in his report dated 29 August 2018 said:
“He is now over six weeks post right total hip replacement and I am pleased to report he looks fantastic. He is actually on his way to work, He has a bit of a limp for the first few steps after he has been sitting for a while, but then it evens out, certainly he is not in any pain and looks fantastic . X-rays performed recently show everything is in good position …”
This is consistent with the finding of the AMS.
Finally, as regards the s327 deduction, the appellant submits:
“The AMS makes a deduction for pre-existing injury or abnormality on the basis that he considers there was pre-existing arthritis following review of or an X-ray of the right hip report dated 12 September 2017. This report does not reveal any arthritis and states ‘the joint space of right hip is preserved and the articular margins are normal. No abnormality of femoral head is seen. The bony pelvis outline normally.’ We therefore submit there is there is not medical evidence that the AMS referred to which supports this assessment.”
The MRI of the right hip dated 12 August 2017, about three months after the injury, revealed: “Moderate degenerative change within the hip joint.”
Dr New commented in his report of that of 20 August 2019, that an x-ray dated 12 August 2017 revealed “bilateral hip arthritis with the right side greater than the left.”
The test for assessing whether a deduction under section 323 applies is whether any pre-existing condition or abnormality contributes to the degree of permanent impairment.
As the Court of Appeal has determined in the case of Vitaz v Westform (NSW)Pty Ltd [2011] NSWCA 254, if a pre-existing condition contributes to permanent impairment, a deduction is required even though the pre-existing condition may have been asymptomatic prior to the injury.”
In our view, there was ample evidence to support the deduction made by the AMS, and we cannot see any error in his approach, reasoning or finding.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 October 2020 should be confirmed.
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