Canterbury Bankstown Council v Percy
[2022] NSWPICMP 299
•20 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Canterbury Bankstown Council v Percy [2022] NSWPICMP 299 |
| APPELLANT: | Canterbury Bankstown Council |
| RESPONDENT: | John Percy |
| APPEAL PANEL: | Member Paul Sweeney Medical Assessor Paul Curtin Medical Assessor Michael McGlynn |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Employer’s appeal alleging error in including an ectropion of the right eyelid in an assessment of the “Skin” and “Scarring-TEMSKI”; it argued that the ectropion was not part of the medical dispute referred for assessment as it was not assessable under Chapter 14 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 and that the Medical Assessor had not given any sufficient reasons why the ectropion resulted from sun damage; Skates v Hills industries Ltd considered and applied; Held – that the ectropion was part of the “medical dispute” between the parties and there was sufficient evidence in the Medical Assessment Certificate (MAC) to establish causal nexus with sun damage; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 April 2022, the Canterbury Bankstown Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Giles, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 15 March 2022.
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 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 the PIC Rules.
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
John Percy (the respondent) was employed by the appellant council between 2 March 1990 and 8 September 2006. By his evidentiary statement, he records that during summer he operated a tractor mower. He states:
“Whilst operating this piece of machinery there was considerable sun exposure both through the front window screen and also from the sides of the vehicle which were open.”
The respondent says that during the balance of the year he performed gardening, whipper-snippering and operated a push mower. He states that all of these tasks “had exposure to the sun”.
The respondent says that in his prior employment he had very limited sun exposure in his work for Bankstown Tech and as a storeman. He also recounts that he had asthma as a child and did not regularly engage in outdoor sports. He states that while he tried swimming, he felt “very uncomfortable in the water”. This condition also constrained his employment activities. He said that he tried concreting work for his brother but was only able to perform that work for a short period. Accordingly,
“most of the work I have to do has been indoors work. As I have got older the asthma has been less of a condition and is now able to be managed by Ventolin.”
The applicant recounts that during the latter part of his employment with the appellant, he noticed problems with his skin. He consulted Dr Curl and Dr Cznieskie at Yagoona who treated him for skin damage caused by sun exposure, primarily on his hands. He was then referred to Dr Ryman, a dermatologist, who has continued to treat him over the years. His statement continues:
“Of particular note, there is a long near vertical cut that runs perpendicular on my face and is adjacent to my nose. This is a fairly prominent scar and I also have numbness and pins and needles around this scar. I can ‘feel’ the scar when I scrunch up my face and there is a nerve sensation which at times can be quite strong and can force a tic in my eye if I squeeze my face quickly.”
The respondent describes areas of skin damage and discolouration on his right forehead, on his jaw, his lip and his nose all of which give rise to unusual sensations or the interference with activities of daily living.
The serial reports of Dr Ryman commence with a report dated 29 December 1999. The doctor records that at this consultation he removed a lesion on the right preauricular area which appeared to be a basal cell carcinoma. It is unnecessary to recount in detail the serial reports of Dr Ryman. However it is evident that he excised lesions on the respondent’s nose on 5 January 2001, the forehead in March 2009, the lip in August 2013 in addition to the other lesions referred to by the respondent.
On 4 January 2021 Dr Ian Hamann, a dermatologist, provided a report to the respondent’s solicitors. On his examination, he recorded scarring on the left jawline/cheek, the right upper medial cheek and the upper nasal side wall. He also observed scarring of the forehead, on the left cheek below the eyelid and over the hands and arms. He expressed the opinion that the respondent would need a further surgical procedure in February 2021 but had reached maximum medical improvement. He expressed the opinion that the respondent suffered 9% whole person impairment (WPI) of the skin and 4% WPI in respect of scarring as a consequence of exposure to the sun in his employment. In each case, he made a deduction of one tenth pursuant to s 323 to reflect the contribution of a pre-existing condition.
On 22 May 2021, Dr Shumack, a dermatologist provided a medico-legal report to the respondent. As part of his history, Dr Shumack recorded the following:
“I note the numerous visits that Mr Percy has made to Dr Ryman and the numerous treatments that have been undertaken including quite a number of excisions on the face, quite a number of treatments with liquid nitrogen cryotherapy, an excision on the right lower ankle area and excision on the left lower back.” (Panel’s italics)
Dr Shumack assessed the respondent pursuant to both Table 8.2 of AMA 5 and Table 6.1 of the Guidelines. In respect of the former, he assessed 9% WPI. In respect of the latter he assessed 4% WPI. However, Dr Shumack made a deduction of 80% pursuant to s 323 for prior injury or pre-existing condition pursuant to s 323 of the 1998 Act. Accordingly, he opined that the respondent suffered 2% WPI as a result of sun exposure with the appellant employer.
It is common ground that the respondent suffered employment injury as a result of exposure to the sun in his work for the appellant. There are suggestions in the appellants case that the respondent’s sun exposure was less than h alleges. But the extent of the exposure is no longer an issue, By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The different assessments of WPI by Dr Hamann and Dr Shumack gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the matter to an MA to determine the dispute. It is from the assessment of Dr Giles that the appellant appeals.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that review, the panel determined that it was unnecessary for the worker to undergo a further medical examination. The Appeal Panel was not satisfied that there was either demonstrable error or the application of incorrect criteria in the MAC. In those circumstances, for reasons given below, it is inappropriate to appoint a re-examination of the worker by a member of the Appeal Panel.
EVIDENCE
The Appeal Panel has before it all the documents which were sent to the MA 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 MA which are relevant to the appeal are set out 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. The appellant submitted that the MA went beyond the terms of the injury referred for assessment in considering the solar damage and surgical scarring of the respondent’s face. It stated that it did not:
“accept the MA was permitted to assess the face as part of ‘skin’ or ‘scarring’ neither of which formed part of the MA referral.”
In particular, there was no allegation of injury to the face by reason of an ectropion of the right lower eyelid. Neither the qualified medical practitioners nor Dr Ryman refer to an ectropion. “The first mention of the condition is in the MAC”. Further, the MA did not provide any explanation as to how the ectropion was related to the respondent’s sun cancer. The appellant asserts that the MA:
“simply says the eyelids were damaged and should be assessed separately.”
The appellant refers to the description of the injury in the respondent’s application and in the referral. In each case the referral is to “skin” “and scarring under TEMSKI”. However, the ectropion assessed by the MA:
“is a facial abnormality which cannot be assessed under either the skin or TEMSKI Guidelines which formed the basis of the MA’s referral”.
The appellant refers to the reasoning of the Court of Appeal in Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) and of Harrison AsJ in Yates v Flavorjen Pty Ltd [2022] NSWSC 368 in support of the proposition that the MA was “constrained to an assessment within the scope of the referral”.
The respondent submitted that he had had an “accepted” injury to his skin arising from sun exposure in the course of his employment with the appellant. He argued that:
“The acceptance of injury and the claim for permanent impairment has never been restricted or declined to exclude the face or any condition forming part of that injury”.
The respondent notes that Dr Ryman, the treating dermatologist, made numerous references to the face in his report including areas adjacent to the eye. He had specifically recorded the excision of a basal cell carcinoma from the respondent’s right lower eyelid.
The respondent also notes that Dr Shumack, the respondent’s qualified specialist, noted numerous scars on the respondent’s face including the area of the left nostril, the right inner canthus area and the left jawline. He had recorded under “Diagnosis” that the respondent suffered:
“solar skin damage particularly over the face associated with redness and scaly over most of the face”.
The respondent submits that this case, where there are specific references to the face and right lower canthus (the corner of the eye), is quite different to the circumstances in Skates and other cases where the MA assessed a body part that was not referred for assessment and was not identifiable as part of the “medical dispute” between the parties. The “medical dispute” in this case clearly identified the face. Further, when the report of the MA is read in context, it is quite clear that he accepts that the skin damage to the right lower eyelid, is one of the facial features which result from skin damage by exposure to the sun.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 role of the medical Appeal Panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the Appeal Panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners PtyLtd v Kocak [2013] HCA 43 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an Appeal Panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
The MA records his examination findings in the MAC as follows:
“There was moderate solar damage of the skin of his face with erythema, some mottling and telangiectasia on his cheeks and forehead as well as prominent white patches where cryotherapy had been used. There were fine, soft, flat, pale and mobile surgical scars on both sides of his forehead, his left cheek and overlying the left side of his jaw as well as some actinic chelitis on his lower lip.
However, the major problem was the very obvious ectropion of his right lower eyelid and the looseness of his left lower eyelid.”
The MA then stated:
“When assessing skin impairment, the face is separate from the skin of the body elsewhere, including the scalp and the back of the neck. Most of the damage to Mr Percy’s skin involves his facial skin and this is assessed with reference to the Table 6.1 in the NSWCC Guidelines.
The damage to the skin of Mr Percy’s face constitutes a Class 2 impairment because the very obvious ectropion of his right lower eyelid has been caused by a loss of the supporting structure of the eyelid; there is similar, but much less obvious damage to his left lower eyelid, in addition to the well-documented skin malignancies elsewhere.
The range of a Class 2 impairment is between 6% and 10% and in my opinion, his impairment lies at the upper limit of this range at 10%; however, because there is a one tenth deduction for pre-existing damage, this brings the figure down to 9%.”
The MA then assessed the damage to the skin, other than on the respondent’s face, in accordance with Table 14.1 of the Guidelines which is applicable to minor scarring or skin damage. He found the best fit was 5%. After making a deduction of one tenth pursuant to s 323, he concluded that the WPI in relation to the skin other than on the face was 5%. In his certification, he added the WPI to the face to the WPI for the skin. Thus her certified 14% WPI.
In the opinion of the Appeal Panel , it is beyond doubt that the medical dispute before the MA included an assessment of the solar damage to the respondent’s face. The respondent’s statement and the serial reports of the treating dermatologist, Dr Ryman, make numerous references to the presence and treatment of solar damage to the face. Dr Hamann and Dr Shumack record histories of damage to the respondent’s face caused by his exposure to the sun and made findings confirming this on their examination. Both included skin damage to the face in their respective assessment of WPI.
The head note to Skates contains the following in respect of the reasoning of Basten JA:
“The applicant’s ‘application to resolve a dispute’ of 8 August 2017, together with the accompanying medical reports, identified in a dispute concerning the degree of permanent impairment caused by the injury to the applicant’s left wrist, ring fingers and scarring. The purpose of the statutory regime was to resolve the medical dispute identified by the parties competing claims. The medical assessment was limited to the dispute so identified: [27]-[30]; [45]-[48]” (Appeal Panel’s italics)
A fair reading of the exchanges between the parties, including the respective medical opinions, which gave rise to the medical dispute emphatically establish that the dispute referred for assessment included damage to the respondent’s face. To use the language of Skates, it was an integral part of the dispute “identified by the parties” in competing medical reports.
The assessment of WPI of the skin as a result of employment injury must be conducted in accordance with Chapter 14 of the Guidelines. Chapter 14 relevantly states:
“AMA 5 Chapter 8 (p173) applies to the assessment of permanent impairment of the skin, subject to the modifications set out below.”
In an assessment of the skin, Chapter 14 prescribes that a MA apply AMA 5 Table 8.2. However, for the evaluation of minor impairment (TEMSKI) the MA is directed to Table 14.1 of the Guidelines which is an extension of Table 8.2 in AMA 5. In respect of facial disfigurement Chapter 14.3 prescribes that the assessment must be in accordance with Table 6.1. The MA is obliged to assess impairment in accordance with this prescription.
In assessing the skin in this case the MA has rigorously adhered to the direction in the Guidelines. He has assessed the impairment of the skin other than on the respondent’s face in accordance with Table 8.2 of AMA 5. He has assessed facial skin in accordance with Table 6.5 in accordance with the clear instruction in Chapter 14. The Appeal Panel reiterates that Chapter 14.3 states:
“For cases of facial disfigurement, refer to Table 6.1 in the Guidelines.”
Although he reached a quite different outcome, it is evident that Dr Shumack interpreted Chapter 14 in exactly the same way as Dr Giles. He applied Table 8.2 of AMA 5 to assess the impairment of the skin other than on the face. He then assessed the face in accordance with Table 6.1 of the Guidelines. He concluded that the respondent fell into Class 1 and stated:
“This is where there are facial abnormalities limited to disorders of cutaneous structures such as visible scars or abnormal pigmentation.”
The assessment of the face by reference to Table 6.1 is not introducing a further or different body part into the assessment. Rather, it is assessing the skin and the face separately as required by Chapter 14 of the Guidelines. In its s 78 Notice dated 20 July 2021 the respondent specifically relied on Dr Shumack’s assessment of the face pursuant to Table 6.1. It stated:
“(b) He then went on to consider Table 6.1 under the SIRA Guidelines (permanent impairment due to facial disorders and/or disfigurement) and believed that you fell into Class 1, attracting up to 5% WPI. He explained this Table involves facial abnormalities limited to disorders of cutaneous skin structures such as visible simple styles or abnormal pigmentation.”
Plainly, the appellant recognised that the claim for the skin made by the respondent involved skin on his face and that it was appropriate to assess it in accordance with Chapter 14 which invoked Table 6.1. The methodology adopted by the appellant’s IME and by the MA was correct. There is no error in assessing the face in accordance with the instruction in Chapter 14. In the opinion of the Appeal Panel it would have been an error not to assess the face in accordance with Table 6.1.
Ectropion
The appellant argues that the MA erred in assessing the ectropion in two respects. First, as it had not been referred to by the independent medical examiners, it was inappropriate to include it in his assessment. Secondly, he gave no reasons as to why it was related to the respondent’s work injury namely the solar damage to his face.
There is no doubt that the respondent suffers an ectropion of the right lower eyelid. It is clearly evident in the photographs of his face which were included in the evidence before the MA. Equally, in the opinion of the medical practitioners on the Appeal Panel, there is no doubt that the ectropion is causally related to solar damage and the treatment of it.
It is not apparent why the qualified specialists failed to refer to the ectropion in their respective reports. It is possible, of course, that the ectropion had deteriorated and become more obvious to an examiner in the period between their consultations and the medical assessment on 15 March 2022. Irrespective of the explanation, their failure to refer to it did not preclude the MA from including the condition in his assessment of WPI. It was his obligation to carry out a clinical assessment of the body parts referred exercising his skill and judgement as the worker presented “on the day of assessment” in accordance with Chapter 1.6 of the Guidelines. The MA could not perform the obligations prescribed by the Guidelines if he was required to limit his assessment of impairment to features or pathology that had been specifically referred to in earlier medical reports.
In the opinion of the Appeal Panel, the appellant’s argument that the MA gave no reasons why the ectropion related to the respondent’s skin cancer also fails. The MA expressed the opinion that most of the solar damage to the applicant’s skin “involves his facial skin”. A component of this facial skin damage was “the very obvious ectropion of his right lower eyelid” which had been caused by a “loss of the supporting structure of the eyelid”. That is a clear statement of a causal nexus between the injury and the ectropion. Solar damage and consequential treatment had undermined the supporting structure of the eyelid causing the ectropion.
It was unnecessary for the MA to give elaborate reasons on the issue of causal nexus between the ectropion and the injury. In accordance with the reasoning in Wingfoot, it was only necessary for him to demonstrate the actual part of his reasoning on the issue. The discussion in the paragraph above demonstrates that he has complied with this obligation. It is true that ectropion can also be caused by senility. But in this case the extent and distribution of facial damage lead inexorably to the conclusion reached by the MA that it results from solar damage.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 March 2022 should be confirmed.
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