Carrigan v GFG Alliance (Infrabuild Newcastle Pty Ltd)
[2024] NSWPICMP 84
•21 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Carrigan v GFG Alliance (Infrabuild Newcastle Pty Ltd) [2024] NSWPICMP 84 |
| APPELLANT: | Thomas Carrigan |
| RESPONDENT: | GFG Alliance (Infrabuild Newcastle Pty Ltd) |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 21 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) disclosed reasoning for applying restricted range of movement method for assessing impairment of appellant’s right lower extremity; whether another method ought to have been applied to assess impairment of appellant’s right lower extremity; whether MA included a rating under table 17-12 when assessing impairment of appellant’s right lower extremity; whether MA considered all relevant criteria when assessing impairment of appellant due to scarring; Appeal Panel found when Medical Assessment Certificate (MAC) read as a whole MA disclosed reasoning for using restricted range of movement method and this was the most appropriate method to use to assess impairment of appellant’s right lower extremity; Appeal Panel found MA included rating under table 17-12; Appeal Panel found MA considered all relevant criteria when assessing impairment of appellant due to scarring; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 October 2023 Thomas Carrigan, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
18 September 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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment in 2017 with an entity that is described in the documents before the Appeal Panel as “GFG Alliance (Infrabuild Newcastle Pty Ltd)”, the respondent. He worked as a factory hand and operator. On 1 July 2020 he was descending a stepladder attached to a tractor. The top step of that ladder was greasy from diesel that had spilt onto it. He slipped from that step causing his right foot to hit the bottom step which resulted in his twisting his right ankle. He then fell to the ground. He was transported to the Mater Hospital in Newcastle and underwent an X-ray and CT scan. The CT scan revealed avulsion fractures and ligament avulsions in the calcaneocuboid joint and the talonavicular joints.
On 12 July 2021 the appellant underwent a peroneal tenolysis and synovectomy with calcaneocuboid arthrotomy. On 19 August 2022 he had further surgery performed in the form of a right peroneal tendon release and synovectomy with excision of the os subfibulare and excision of the lateral process of the talus and repair of the lateral ankle ligaments.
On 12 April 2023 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation in the amount of $40,630 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 16% whole person impairment (WPI) from the appellant’s injury. The appellant enclosed with its correspondence a report of surgeon
Dr Alan Hopcroft dated 30 March 2023 to support the appellant’s claim. Dr Hopcroft had examined the appellant on 30 March 2023 at the request of the appellant’s solicitors. In his report Dr Hopcroft advised the appellant had suffered a wrenching injury to his right foot and ankle and multiple avulsion fractures on 1 July 2020 and had been left with significant ongoing disability impairment and function of his right foot and ankle as a result of that injury. Dr Hopcroft further advised that he assessed the appellant had 16% WPI from his injury. He advised his assessment was comprised of 12% WPI based on the criteria of table 17-11 of AMA5. Dr Hopcroft also advised that the appellant had “a significant impairment of his hind foot” for which Dr Hopcroft advised he assessed an additional WPI of 2%. Dr Hopcroft did not advise the criteria by which he made that assessment but it would appear to be table 17-12 of AMA5. Dr Hopcroft also advised that he assessed the appellant had 2% WPI based on the TEMSKI scale, which is a reference to table 14.1 of the Guidelines.The appellant instituted proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation under s 66 of the 1987 Act. That was done by filing an Application to Resolve a Dispute dated 21 June 2023. Neither the respondent nor its insurer had by that date determined his claim for compensation. In the Application to Resolve a Dispute the appellant described his injury in these terms: “On
1 July 2020 the applicant worker suffered a fall from machinery whilst completing his employment duties with the respondent resulting in him suffering injury”.The matter was referred to Commission Member Ms Jane Peacock. On 11 July 2023 Member Peacock determined, with the consent of the parties, that the matter be remitted to the President of the Commission for referral to a Medical Assessor to assess a medical dispute that the member described in the following terms:
“(a) Date of Injury: 11 March 2021 (deemed)
(b) Body systems/parts: right lower extremity, Temski Scaring
(c) Method of assessment: whole person impairment”
The Appeal Panel observes that the date of injury as specified in the determination Member Peacock made differs from the date particularised in the Application to Resolve a Dispute and also the date of injury Dr Hopcroft specified in his report, on which the appellant relied to support his claim for compensation. The Appeal Panel also notes that the term “deemed” as used in the determination Member Peacock made is used when a date of injury is fixed under either ss 15 or 16 of the 1987 Act, which sections are engaged when an injury consists of a disease contracted by a gradual process or consists in the aggravation, acceleration, exacerbation or deterioration of a disease. The Certificate of Determination that the Commission issued to record the determinations Member Peacock made, with the consent of the parties, did not include a determination amending the description of injury or the date of injury particularised in the Application to Resolve a Dispute. There is nothing within the material before the Appeal Panel which explains why the medical dispute that was referred to the Medical Assessor to assess particularised the date of injury as being 11 March 2021 (deemed). The Appeal Panel nevertheless proceeds on the basis that injury referred to the Medical Assessor to assess included the injury that the appellant suffered on 1 July 2020. Certainly, that is the injury the Medical Assessor assessed and neither party has challenged the fact that the Medical Assessor’s assessment related to the injury that occurred on
1 July 2020.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the information before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.
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 history the Medical Assessor obtained included the circumstances on 1 July 2020 in which the appellant fell from the ladder and suffered avulsion fractures and ligament avulsions to his right ankle. The history included the surgeries the appellant underwent. The Medical Assessor noted the appellant continues to experience pain over the lateral aspect of his foot beneath his ankle and that the appellant has a loss of inversion and has cramping in his toes.
The Medical Assessor recorded the following findings from his examination of the appellant:
“On examination he was a well looking man who walked with a mild limp. There was a 16cm scar along the lateral ankle and foot, consistent with peroneal exploration and release. Light touch and pinprick sensation was globally nondermatomally altered but present across the foot. Range of motion in the ankles was assessed as follows:
MOVEMENT
RIGHT
LEFT
Dorsiflexion
5°
15°
Plantar flexion
30°
45°
Inversion
5°
20°
Eversion
0°
10°
The feet were distally neurovascularly intact. Gastrocnemius circumference was 43cm and symmetrical.”
The Medical Assessor provided the following summary of the appellant’s injury:
“Mr Carrigan had a fall at work and sustained what appears to be a plantar flexion inversion injury to his right ankle. He has had persistent pain subsequent to his injury.”
The Medical Assessor assessed the appellant had 8% WPI from the injury referred for assessment. He provided the following explanation for how he calculated that figure:
“Ankle range of motion is assessed according to AMA 5 page 536, Table 17.11 and 17.12 and the SIRA Guidelines Page 15, Table 3.15. On the basis of restricted ankle dorsiflexion, inversion and eversion, a 21% lower extremity impairment was assessed. According to AMA 5 page 527, Table 17.3, this converts to an 8% whole person impairment.
Scarring / TEMSKI is assessed according to the SIRA Guidelines page 74, Table 14.1. 0% whole person impairment is assessed on the basis that the incision is well healed with a good match with surrounding skin, is barely distinguishable and without trophic changes, contour defect or suture lines.”
The Medical Assessor observed that Dr Hopcroft in his report of 30 March 2023 advised he had assessed the appellant had 12% WPI based on the criteria of table 17-11 of AMA5. The Medical Assessor however said that absent Dr Hopcroft having recorded the appellant’s actual ranges of motion, it was not possible to understand how Dr Hopcroft had assessed the appellant had 12% WPI. The Appeal Panel notes that is indeed the case that Dr Hopcroft, whilst stating that he found the appellant had “a marked restriction in movement of his right ankle joint in dorsiflexion, plantar flexion and has no inversion ability”, did not as the Medical Assessor did in the MAC, specify the degree to which the movement of the appellant’s ankle and foot in dorsiflexion and plantar flexion was limited. The Medical Assessor further observed that Dr Hopcroft assessed the appellant had 2% WPI based on the appellant having no inversion or eversion ability. The Medical Assessor noted that if that were the case then under table 17-12 of AMA5 the assessment should have been 3% WPI, rather than the 2% WPI that Dr Hopcroft assessed.
The Medical Assessor also noted that Dr Hopcroft had assessed 2% WPI for scarring on the basis that he found that the appellant’s scar was “irritable with distal paraephesia and numbness into the foot”. The Medical Assessor made the following remarks regarding that:
“The TEMSKI scale does not incorporate numbness in the assessment. Clinical examination today did not reveal sensory change in the distribution of a peripheral nerve and hence I have not assessed impairment for numbness.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor did not disclose his reasoning as to why he adopted the method of range of motion to assess his permanent impairment. The appellant submitted that the history the Medical Assessor obtained would have enabled an assessment based on other methodologies, such as a nerve injury.
The appellant submitted that the Medical Assessor, in assessing he had 21% lower extremity impairment that converted to 8% WPI, did not provide appropriate calculations or referred to the AMA5 criteria or provided a worksheet as required by the Guidelines.
The appellant noted that paragraph 3.16 of the Guidelines instructs that if a worker’s range of movement of a joint in the lower extremity during examination is variable due to pain then restricted range of movement cannot be used as a methodology to evaluate permanent impairment. The appellant highlighted that the Medical Assessor obtained a history of his having ongoing pain and experienced a feeling of bone on bone and a sensation of numbness in his lateral foot and cramping up in his toes. The appellant also highlighted that Dr John Estens on 11 May 2022 obtained a history of his experiencing symptoms including a sensation of stiffness around the subtalar joint and the lateral mid foot and having neuropathic symptoms with numbness and unpleasant paraephesia around the distal end of his scar. The Appeal Panel considers, from the appellant highlighting these matters, that the appellant was relying on that history to support his submission that the Medical Assessor should not have used range of movement as the basis upon which to assess his permanent impairment.
The appellant submitted that it is unclear whether the Medical Assessor incorporated in his assessment any rating under table 17-12 of AMA5.
The appellant further submitted that the Medical Assessor failed to consider all criteria within table 14.1 of the Guidelines when assessing his permanent impairment for scarring. The appellant submitted that the Medical Assessor did not address the location of the scar, ADL/treatment and adherence to underlying structures.
In reply, the respondent submitted that the Medical Assessor chose range of motion as the applicable assessment methodology based on his clinical judgment and it was appropriate that he did so. The respondent submitted that the Medical Assessor examined the appellant for neurological deficit and his examination did not reveal any sensory changes in the distribution of the peripheral nerve and hence nerve damage could not be used as a methodology to assess the appellant’s impairment. The respondent submitted that the Medical Assessor provided a worksheet in that the Medical Assessor set out his findings from examination within a table in part 5 of the MAC.
The respondent submitted that the Medical Assessor noted that the appellant’s scar was well healed, a good match with surrounding skin, barely distinguishable and without trophic changes, contour defect or suture lines. The respondent submitted that those findings are consistent with 0% WPI in accordance with the criteria of table 14.1 of the Guidelines.
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.
Section 325(2)(c) of the 1998 Act requires a Medical Assessor to set out within the MAC his or her reasons for the assessment he or she has made. The reasons must be sufficient to reveal the actual path by which the Medical Assessor arrives at his or her assessment.[1] In a circumstance where an opinion or conclusion is self-evident to medical practitioners and there is no medical contest regarding it, the reasons a Medical Assessor provides do not need to be extensive or comprehensible to a person with no medical expertise. If, however, a conclusion may be medically contestable, based on the evidence, then the Medical Assessor will need to address all the relevant evidence so as to expose the path of his or her reasoning in order to explain the conclusion to which he or she came.[2]
[1] See Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA43 at [55] and Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC1320 at [73] – [79].
[2] See Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34]; see also Campbelltown City Council V Vegan & Ors [2006] NSWCA 284 at [121]-[122].
In the Appeal Panel’s view, the range of motion that the appellant had in his ankle and hind foot was the best method to assess the appellant’s impairment relating to the injury that was referred to the Medical Assessor to assess. The other methodologies available to assess lower extremity impairment are leg length discrepancy, gait derangement, unilateral muscle atrophy, muscle weakness, joint ankylosis, arthritis, amputation, diagnoses-based estimates, skin loss, peripheral nerve deficit, complex regional pain system and vascular disorders. Of those methods, only gait derangement could potentially have been used, noting the Medical Assessor found the appellant walked with a mild limp. Had the Medical Assessor assessed the appellant’s impairment by reference to gait derangement a lower extremity impairment rating would have been made under table 17-5 of AMA5 of 7% WPI, which was less than the rating the Medical Assessor made based on range of motion. Further, paragraph 3.10 of the Guidelines instructs that “gait derangement is only to be used as a method of last resort”.
None of the methods provided in chapter 3 of the Guidelines to rate a worker’s impairment, other than range of motion and gait derangement, could be applied in this matter. As the respondent noted in its submissions, the Medical Assessor did examine the appellant for peripheral nerve deficit. The Medical Assessor also examined the appellant for vascular disorders and that is apparent from the Medical Assessor finding that the appellant’s feet were distally neurovascularly intact. The Medical Assessor also examined the appellant for muscle weakness and unilateral muscle atrophy and this is apparent from the Medical Assessor’s findings that the appellant’s gastrocnemius circumference was 43cm symmetrically. There was simply no evidence before the Medical Assessor that would have permitted an assessment based on any of the other methodologies.
The Medical Assessor noted the appellant experienced symptoms in his ankle and hindfoot, but the Medical Assessor did not indicate these prevented a rating being made by reference to range of motion. In any event, this method yielded a better result than the only other method available by which the appellant’s impairment could have been rated, that is gait derangement, and as already mentioned, that method can only be used as a method of last resort.
The Appeal Panel notes that Dr Hopcroft assessed the appellant’s claim by reference to the restricted range of motion the appellant had in his ankle and hind foot. Noting this, and bearing in mind the comments of the Appeal Panel made in the paragraph above, there was really no basis for any medical contest regarding what method the Medical Assessor ought to have adopted to assess the appellant’s impairment of his ankle and hind foot. The Medical Assessor was not, in the Appeal Panel’s view, required to explicitly provide his reasons why he adopted that method, nevertheless it is implicit when the MAC is read as a whole why he used that method, and that is the reasons the Appeal Panel set out in the paragraph immediately above.
The worksheet to which reference is made in paragraph 3.4 of the Guidelines and which the Guidelines instruct is essential to be used, is table 3.5 of the Guidelines. In this case there is only two methods by which the appellant’s permanent impairment could have been assessed, namely range of motion or gait derangement. Neither of those could be combined. Range of motion provided a greater rating than gait derangement, as it is apparent from what the Appeal Panel explained above. It is not apparent from the MAC that the Medical Assessor did not use a worksheet in the form of table 3.5. Even if he did not, given that he was only comparing two assessments under two methodologies that could not be combined, it was not crucial that he use a work sheet in this particular case.
It is also apparent, in the Appeal Panel’s view, that the Medical Assessor did include a rating under table 17-12 of AMA5 when assessing the appellant’s permanent impairment. Based on the findings the Medical Assessor set out in part 5 of the MAC relating to the appellant’s range of movement of his ankle and hind foot, the rating for 5° of dorsiflexion of the right ankle is 15% lower extremity impairment and the rating for 30° of plantar flexion movement is 0% lower extremity impairment. Those combine to 15% lower extremity impairment. The rating under Table 17-12 for 5° of inversion movement is 5% lower extremity impairment, and the rating for 0° inversion is 2% lower extremity impairment, which combine to 7% lower extremity impairment.
Section 1.4 of AMA5 instructs that in general impairment ratings within the same region are combined before combining the regional impairment rating from that or another region. It also instructs that an exception is impairment of the ankle and subtalar joints in the lower extremity which are added and are not combined.
The Medical Assessor has made an error in combining 15% lower extremity impairment for the ankle with 7% lower extremity impairment for the hindfoot to achieve 21% lower extremity impairment, which converts to 8% WPI. These joint impairments should have been added and this results in 22% lower extremity impairment, which converts to 9% WPI.
Accordingly, the Medical Assessor has made an error because of this and the MAC consequently contains a demonstrable error.
The Appeal Panel also considers that the Medical Assessor based his assessment with respect to the appellant’s scarring on correct criteria and did not make an error with respect to his assessment of the appellant’s permanent impairment relating to his scarring. In accordance with paragraph 14.7 of the Guidelines the criteria as set out in table 14.1 of the Guidelines are used to evaluate a minor skin impairment. Paragraph 14.8 of the Guidelines stipulates that the assessment is to be made by reference to the principle of “best fit”. That is, a Medical Assessor must be satisfied that the criteria within a particular category of impairment within the table best reflects the skin disorder being assessed. It also needs to be borne in mind that, in accordance with paragraph 14.6 of the Guidelines, the fact that a worker has a scar does not, of itself, warrant an impairment rating being made.
In this case, the Medical Assessor found that the appellant had a 16cm scar along the lateral ankle and foot. The Medical Assessor recorded that he found the scar was well healed with a good match with surrounding skin and is barely distinguishable without trophic changes, contour defect or suture lines. The Medical Assessor did not make any remark on whether there was adherence to underlying structures, but given the other findings of the Medical Assessor with respect to the appellant’s scarring it can be inferred that there was no adherence. Further, no other examiner reported adherence. Given the findings of the Medical Assessor it can also be inferred that the appellant’s scar requires no further treatment. Further again, it is unlikely that the appellant’s scar would have an effect on his activities of daily living. The symptoms the appellant experiences arise from the underlying injury to his ankle and hind foot, rather than his scar.
In the Appeal Panel’s view, the Medical Assessor was right to conclude that the features of the appellant’s scar best fit the criteria for 0% WPI specified in table 14.1. They accord better with the criteria for 0% WPI than the criteria for 1% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
18 September 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: | W4447/23 |
Applicant: | Thomas Carrigan |
Respondent: | GFG Alliance (Infrabuild Newcastle Pty Ltd) |
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 WorkCover Guides | 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) |
| Right lower extremity | 1/7/2020 | Chapter 3 | P 536 T 17.11 P 536 T 17.12 P 527 T 17.3 | 9% | - | 9% |
| Scarring | 1/7/2020 | Chapter 14 Table 14.1 | 0% | - | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
0
2
0