Coleman v Racing New South Wales
[2021] NSWPICMP 2
•4 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Coleman v Racing New South Wales [2021] NSWPICMP 2 |
| APPELLANT: | Gabrielle Coleman |
| RESPONDENT: | Racing New South Wales |
| APPEAL PANEL: | Brett Batchelor Dr Philipa Harvey- Sutton Dr Drew Dixon |
| DATE OF DECISION: | 4 March 2021 |
CATCHWORDS: | WORKERS COMPENSATION- Appeal against MAC on grounds in section 327(3)(b),(c) & (d) of 1998 Act; appellant suffered injury to lumbar spine, left lower extremity and a fractured pelvis when riding track working as a jockey and horse reared and fell on her; submission that AMS erred in failing to properly assess scarring resulting from surgery to treat fractured pelvis and failing to assess at all scarring resulting from the claimed requirement to give birth to a child by caesarean section surgery because of the fractured pelvis; submission that the AMS had not assessed the fractured pelvis correctly in accordance with Table 4.3 of NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. 4th edition – 1 April 2016 (the Guidelines); no concession by respondent employer or finding by the Commission that the necessity to undergo caesarean section surgery was a condition consequent upon the undisputed fracture of the pelvis; application to rely upon additional relevant information rejected as not complying with ss 327(3)(b) and 328(4) of the 1998 Act; Held- finding that, having regard to the terms of referral of the matter to him, the AMS had not erred in failing to assess scarring from the caesarean section surgery, and had properly assessed the scarring resulting from repair of the fractured pelvis according to the TEMSKI scale; finding that the AMS had properly assessed WPI resulting from the fractured pelvis in accordance with Table 4.3 of the Guidelines; MAC dated 10 November 2020 confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 December 2020 Gabrielle Coleman (the appellant/Ms Coleman) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Murray Hyde Page, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 10 November 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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· 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).
RELEVANT FACTUAL BACKGROUND
The appellant was injured on 5 November 2016 when doing trackwork as a jockey in the course of her employment with the respondent. The horse she was riding reared up and fell backwards on top of her. There was no loss of consciousness, but Ms Coleman was immediately aware of pain around her pelvis, abdomen and legs. Her injuries included a fractured pelvis and internal bleeding. She was taken by ambulance to the Emergency Department of Port Macquarie Base Hospital and airlifted to John Hunter Hospital. To stop the internal bleeding, embolization of the pudendal artery inside the pelvis was carried out which settled the internal bleeding.
The appellant came under the care of trauma surgeon, Dr Zsolt Balogh, who operated to internally fix the displaced pelvic fracture. Ms Coleman had a diastasis screw put across the sacroiliac joint and plating of the pubic bone anteriorly. After a week of non-weight bearing nursing at John Hunter Hospital the appellant was transferred back to Port Macquarie Base Hospital for two days and then transferred to Port Macquarie Private Hospital where she remained for two months, slowly mobilising on a walking frame and crutches. It was then discovered that Ms Coleman had injured her left foot and she was treated by orthopaedic surgeon, Dr Mark Baker, for fractures of the metatarsals which were revealed on x-rays. Treatment was conservative. Ms Coleman commenced hydrotherapy and undertook a lot of physiotherapy. The surgical wound in the front of the pelvis healed up well.
The appellant continued her treatment after transfer home to live with her husband. She attended at Rehabilitation Outpatients at Port Macquarie Private Hospital and underwent further physiotherapy and hydrotherapy.
The appellant fell pregnant and had a healthy baby born by caesarean section on 26 September 2018. This procedure was employed due to apparent concerns about a natural birth after the pelvic injury and plating.
Ms Coleman separated from her husband and went to live with her parents on a rural property. She currently resides with her daughter in a separate house on the property. She is no longer having any treatment other than self-directed exercises.
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 the appellant submits that there should be a further medical examination by a member of the Appeal Panel because of an error made by the AMS, the Panel is satisfied that it is not necessary for the worker to undergo a further medical examination. There is sufficient evidence by way of medical reports and clinical investigations on which to make a determination. The Panel did not consider that an additional examination would assist the determination of the appeal.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional 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 4 December 2020, annexure “A” to the appellant’s submissions dated 4 December 2020[1].
[1] Appeal Papers p 21.
The appellant submits that the evidence is relevant to the failure of the AMS, Dr Murray Hyde Page, to assess scarring resulting from the birth of her child on 26 September 2018 by caesarean section, when he assessed her on 26 and 27 October 2020. The appellant submits that the evidence was not in existence at the time of the assessment by the AMS and describes the caesarean scar. The appellant further submits that the evidence:
“…is submitted for the assistance of the Commission in considering that the Assessment of the Caesarean Scar was likely to lead to a higher TEMSKI than 0% WPI than that found by Dr Hyde Page for the ‘Supra Pubic’ scar (referred to below as ‘surgical scar’) alone. (MAC page 4)”[2]
[2] Appeal Papers p 12.
There are no other submissions from the appellant asserting that the evidence was not available to the appellant before the medical assessment and could not reasonably have been obtained by her before that assessment.
The respondent opposes the admission of the statement dated 4 December 2020 as the additional relevant information sought to be relied upon cannot possibly satisfy the requirements of s 327(3)(b) of the 1998 Act and must be excluded having regard to s 328(3) of that Act.
The Appeal Panel accepts the respondent’s submissions and determines that the evidence should not be received on the appeal because it is not in, terms of s 327(3)(b) of the 1998 Act:
“…additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against)”,
and in terms of s 328(3) of the 1998 Act:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The statement of the appellant is dated the same day as the appellant’s submissions.
Ms Coleman’s daughter was born on 26 September 2018. She asserts at [12] in her statement dated 22 May 2019 attached to the Application to Resolve a Dispute (ARD) commencing proceedings in the Commission that:“My daughter Thea was born on 26 September 2018 and had to be delivered by a Caesarean Section due to my injuries sustained on 5 November 2016. As such I have a scar and it may be possible that I am now unable to give birth naturally to and further children I may have.”[3]
[3] Appeal Papers p 51.
Prior to commencement of proceedings the appellant was independently medically assessed at the request of her solicitors by Professor Y A E Ghabrial (Dr Ghabrial), orthopaedic surgeon, whose reports (x2) dated 30 October 2019 are attached to the ARD[4]. Dr Ghabrial does not record a history of the birth of Ms Coleman’s child, but does in his supplementary report give a WPI assessment regarding multiple scars on the pelvis according to TEMSKI (Table for the evaluation of minor skin impairment at p 74 of the Guidelines) at 2%.
[4] Appeal Papers pp 99 & 102.
The appellant was independently medically assessed by Dr Chris Harrington, orthopaedic surgeon, at the request of the respondent on 21 April 2020. In his report of that date[5]
Dr Harrington records that Ms Coleman “…has a 11/2 year old daughter whom she birthed via elective caesarean due to her pelvic injury.” He assessed 1% under the TEMSKI scale for scarring caused by the surgery to address the appellant’s fractured pelvis.[5] Appeal Papers p 806.
There was ample opportunity for the appellant to request an assessment of scarring resulting from the caesarean section surgery prior to commencement of proceedings. The evidence now sought to be relied upon, in the form of the statement dated 4 December 2020, quite clearly breaches the requirements of ss 327(3)(b) and 328(3) of the 1998 Act and is therefore rejected.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the AMS 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.
The appellant
In summary, the appellant submits that the AMS erred in his assessment of the surgical scar at 0% WPI and failed to explain why his assessment of this scarring differed from the assessments of Dr Ghabrial and Dr Harrington. The appellant also submits that the AMS failed to examine or assess the scar caused by the caesarean section surgery, and for these reasons made his assessment on the basis of incorrect criteria, or it is apparent that the MAC contains a demonstrable error.
The appellant submits that the references by the AMS and by Dr Harrington in their reports to the history that she provided to them of the birth of her daughter by caesarean section can only mean that the need for caesarean section was consequential to the injury of 5 November 2016. Therefore the scar from that procedure should have been examined and assessed in addition to the surgical scars assessed by the AMS.
The appellant makes detailed submissions with reference to the criteria in the TEMSKI scale on the findings of the AMS in respect of scarring caused both by the pelvic surgery and the caesarean section surgery to demonstrate that such scarring should attract an assessment of 1% WPI or higher. The appellant therefore submits that as the surgical scarring will require further examination, and that as the caesarean section scarring has not been assessed, she will need to be re-examined by a member of the Appeal Panel.
The appellant submits that the AMS was in error in his assessment of WPI as a result of her pelvic injuries by reference to Table 4.3 on p 30 of the Guidelines, and that by reference to the appropriate sections of that Table, the correct assessment is 17% WPI rather than the 10% WPI assessed by him.
In a number of places in her submissions the appellant draws attention to the fact that if she is assessed at a WPI in excess of the 20% found by the AMS, she would then be classed as a “Worker of Highest Needs” [sic, a “worker with highest needs”] as defined in s 32A of the Workers Compensation Act 1987 (the 1987 Act), thereby allow her to make further claims for weekly benefits if required under ss 38 and 38A of the 1987 Act, and grant her an exemption from time limitations from claiming ongoing medical treatment beyond five years as provided for in s 59A(5) of the 1987 Act. This important issue, according to the appellant, is a further reason why the AMS should have provided reasons why he disagreed with the assessments of Dr Ghabrial and Dr Harrington in respect of the assessment of the surgical scarring. This failure to provide such reasons is put forward by the appellant as not being in accordance with the requirements of reasons by the Commission, nor is it in accordance with the principles of natural justice to be silent on such an issue.
The respondent
In reply, the respondent submits firstly that the appellant’s submissions referred to in [30] above are completely irrelevant to the appeal and inappropriate to be included in the appeal. It is further submitted that such submissions are an attempt to influence the Appeal Panel to alter an assessment whether error is found or not.
The respondent submits that even if the fresh evidence sought to be relied upon by the appellant is admitted, the untrained views of the appellant cannot possibly be a substitute for the clinical judgement of the AMS in respect of any scarring, the reasoning in respect of which is clearly set out on p 8 of the MAC.
The respondent submits that the appellant’s submissions are nothing more than an attempt to suggest that she is dissatisfied with the assessment, rather than indicating the application of incorrect criteria or the presence of demonstrable error. It is submitted that the AMS has made a careful examination of the scarring which is recorded in the MAC and applied his clinical judgement following that examination to conclude, in accordance with the TEMSKI scale, that the appellant has 0% WPI for scarring.
The respondent submits that the appellant’s submissions in respect of the assessment of the pelvis are almost impossible to understand, and again appear to be nothing more than an expression of dissatisfaction with the impairment properly assessed by the AMS. The respondent notes that the appellant’s submissions appear to suggest that the methodology adopted by the AMS should have included a further 8% WPI in addition to the 10% WPI he assessed. In fact, according to the respondent, what is pointed out is an alternative way of assessing impairment of the pelvis. The respondent submits that if the appellant’s submissions are adopted, then the assessment of the AMS should not be increased beyond 10% but reduced to 8%, resulting in a further reduction in the overall WPI assessed.
The respondent submits that the appellant’s submissions do not identify any application of incorrect criteria nor and demonstrable error.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC(see Siddik v Workcover Authority of NSW[6] and NSW Police Force v Registrar[7])
[6] [2008] NSWCA 116.
[7] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[8] 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.
[8] [2006] NSWCA 284.
The Appeal Panel finds that it was inappropriate for the appellant to include in her submissions the matters referred to in [30] above. They do not assist the Panel in its task, which is set out in s 328 of the 1998 Act. Subsection (2) provides that 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. Subsection (5) provides that the Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 of the 1998 Act, which sets out the status of medical assessments, applies to any such new certificate. Reference to the consequences for an injured worker of a certain level of WPI assessed by an AMS or Appeal Panel do not assist the Panel in the task before it. The Panel does not take cognisance of the appellant’s submissions in this regard.
In Skates v Hills Industries Ltd[9] Adamson J at [75] addressed submissions put to her on the potential consequences of the non-inclusion of two body parts in the referral to the AMS. These consequences were that if the Claimant in that case was bound by the certificate of the Appeal Panel, he would not be able to obtain a further assessment, having regard to
s 66(1A) of the 1987 Act and s 322A of the 1998 Act when read with cl 1.17 of the Guidelines. That question did not arise for determination because her Honour was satisfied that the Claimant had made out an error in the Appeal Panel’s decision which ought to be set aside. Nevertheless her Honour did say:“However, the risk that a worker might be debarred from having all the consequences of a work-related injury taken into account in an assessment of the degree of permanent impairment if the wording of the referral does not extend to a consideration of them, highlights the importance of care being taken in the wording of a referral.”
[9] [2020] NSWSC 837 (Skates).
Earlier in that judgement, her Honour at [54]-[67] reviewed a number of authorities dealing with the terms of referral of a matter to an AMS in order to determine whether the AMS in the case before her fulfilled the task conferred on him by the referral. These included Cincotta v Police Citizens Youth Clubs NSW Ltd[10], a decision of Hoeben CJ at CL. At [66] of Skates her Honour referred to [40] in Cincotta where his Honour stated:
“The scope of an AMS’s task, and therefore that of the Appeal Panel, was defined by two factors – the dispute referred to the AMS/Appeal Panel and the relevant legislative provisions.”
[10] [2018] NSWSC 1588 (Cincotta).
Assessment of scarring – the caesarean section scar
The appellant submits that the AMS has made his assessment of scarring on the basis of incorrect criteria and that the MAC contains a demonstrable error because of the failure to assess the scarring the appellant suffered as a result of the caesarean section surgery she underwent when her daughter was born.
The term “incorrect criteria” is not defined in the 1998 Act. Its meaning was considered by Wood CJ at CL in Campbelltown City Council v Vegan[11] who reasoned that the “criteria” are to be found in any relevant guides for the assessment of impairment, including guides issued by WorkCover, and that appeal lies where the criteria have been incorrectly applied.
[11] [2004] NSWSC 1129 at [57]-[60].
If the AMS, Dr Murray Hyde Page, did not assess the scarring caused by the caesarean section surgery, he can hardly be said to have made an assessment on the basis if incorrect criteria. Rather it seems that the appellant is asserting that the MAC contains a demonstrable error because of the non-assessment of this scarring.
Neither Dr Ghabrial nor Dr Harrington assessed the caesarean section surgical scarring. As noted above, Dr Ghabrial assessed 2% WPI according to the TEMSKI scale. The only comment made by Dr Ghabrial in respect of scarring appears in his supplementary report dated 20 October 2019[12] in the following terms:
“The whole person impairment regarding multiple scars on the pelvis is assessed according to TEMSKI at 2%.”
[12] Appeal Papers p 102.
Dr Harrington assessed 1% for scarring. In his report dated 21 April 2020[13] Dr Harrington makes the following comments on the surgical scarring:
“The hardware holding her pelvis remains in situ. The scar worries her a little bit at the front of her pelvis.”
…
“The scar from her pfannenstiel incision is a little wide and irritable with certain clothes.”
…
“Under the TEMSKI scale per Table 14.1 (page 74) she has 1% for scarring.”
[13] Appeal Papers p 808.
In the ARD commencing proceedings in the Commission the injury details are given as:
“The applicant was riding a horse in the course of her employment when it reared and fell causing her injury.”[14]
On the same page the “Injury Details” under the “Permanent Impairment/Pain and Suffering” heading are described as follows:
“Date of Injury 5/11/2016
Systems Claimed Pelvis
Systems Claimed Lumbar Spine
Systems Claimed Left lower extremity
Total WPI Percentage 27
Percentage of Pain and Suffering 0”
[14] Appeal Papers p 47.
The 27% WPI claimed by the appellant was the WPI assessed by Dr Ghabrial in his supplementary report dated 30 October 2019.
The Certificate of Determination – Consent Orders dated 7 July 2020 [15]pursuant to which the matter was referred to the AMS contains the following orders:
[15] Appeal Papers p 41.
“1. The matter is remitted to the Registrar for referral to an Approved Medical
Specialist (AMS) for assessment of the degree of permanent impairment, if any,
of the pelvis, lumbar spine, left lower extremity and scarring as a result of injury
on 5 November 2016.2. The documents to be forwarded to the AMS are as follows:
(a)The Application to Resolve a Dispute and all documents attached admitted.
(b)The Reply and all attached documents.
3. The matter to be placed in the medical assessment pending list.”
The “REFERRAL FOR ASSESSMENT OF PERMANENT IMPAIRMENT TO APPROVED MEDICAL SPECIALIST” dated 10 September 2020[16] lists the body parts referred as:
“Pelvis
Lumbar spine
Left lower extremity
Scarring – TEMSKI”These terms of this referral are replicated on the first page of the MAC.
[16] Appeal Papers p 40.
The Consent Orders dated 7 July 2020 quite clearly stated that the assessment of permanent impairment in respect of scarring was to be “…as a result of injury on 5 November 2016.” The appellant in her submissions states that the reference by
Dr Harrington in his report dated 21 April 2020 to the appellant’s daughter being “…birthed via elective caesarean due to pelvic injury” can only mean that the need for caesarean section was “…consequential of the injury of 5 November 2016” [sic]. Whilst the need for the appellant to have her daughter delivered by caesarean section surgery may (emphasis added) be a consequence of the injury to her pelvis on 5 November 2016, this has not been conceded by the respondent nor has there been a finding by the Commission that such is the case. Unless an employer concedes that a condition in an injured worker is consequent upon an injury either found by the Commission, or conceded by an employer, to have arisen out of or in the course of employment, there must be a determination by the Commission on this issue before any permanent impairment that the worker may have suffered as a result of that condition is referred to an AMS for assessment. This has not occurred in this case.The appellant, perhaps understandably, states at [12] in her statement dated 22 May 2019 that her daughter born on 26 September 2018 had to be delivered by caesarean section due to her injuries sustained on 5 November 2016. This history is also recorded by Dr Harrington in his report dated 21 April 2020 under “CURRENT STATUS” and by Dr Murray Hyde Page in the MAC under “HISTORY RELATING TO THE INJURY”. Neither of these two entries in medical reports provide any basis for a finding that the delivery of the appellant’s daughter by caesarean section surgery was consequent upon the undisputed injury to Ms Coleman’s pelvis.
In Skates Adamson J at [51] commented upon the purpose of s 325 of the 1998 Act in the following terms:
“The evident purpose of s 325(1) is not only to provide an AMS with the parameters of his or her task but also to provide procedural fairness to the parties. There is also a third purpose: to prevent overlap if there is more than one referral because the nature of the worker’s work-related condition goes beyond a single speciality. The examination conducted by the AMS is conducted in the absence of the Employer or the legal representatives for either party. Thus there is, effectively, no opportunity for a party to respond to a change in the parameters delineated in the referral. This highlights the importance of the terms of the referral, which is set by reference to the application to resolve a dispute and the reply, following which the parties may provide medical reports of experts retained by them for the consideration of the AMS. It is significant that the AMS’s jurisdiction is limited by the terms of the referral, rather than by reference to the matters contained in the medical reports provided by the parties.”
The speciality of the independent medical experts relied upon by the parties in this case was that of orthopaedic surgery, and both Dr Ghabrial and Dr Harrington assessed the applicant’s injuries suffered on 5 November 2016 accordingly. There were assessments of permanent impairment as a result of injury to the pelvis, lumbar spine, left lower extremity and scarring as a result of injury on 5 November 2016. The terms of referral were set by reference to the ARD and Reply. The only document attached to the Reply was the report of Dr Harrington dated 21 April 2020[17]. These medical reports were provided for the consideration of the AMS. Whilst her Honour states that “It is significant that the AMS’s jurisdiction is limited by the terms of the referral, rather than by reference to the matters contained in the medical reports provided by the parties”, the AMS has cognisance of these reports, provides comments regarding the other medical opinions submitted by the parties and, where applicable, the reasons why his or her opinion differs. Dr Murray Hyde Page has done this at [10. c.] of the MAC in this case.
[17] Appeal Papers p 801 & 805.
What the AMS was asked to do in this case was to assess the degree of permanent impairment “as a result of injury on 5 November 2016.” He has done this. He was not asked to assess scarring as a result of the caesarean section surgery the appellant underwent on 26 September 2018 when her daughter was born. There had been no finding by the Commission, nor concession by the respondent, that the necessity for such surgery was a consequence of the injury the appellant suffered to her pelvis.
The Appeal Panel does not find that the MAC in this case contains a demonstrable error because of the failure of the AMS to assess the scarring suffered by the appellant from the caesarean section surgery.
Assessment of surgical scarring – repair of fractured pelvis
The assessments of Dr Ghabrial and Dr Harrington, and the comments of Dr Harrington thereon, are referred to above at [44] and [45]. The AMS refers to the reports and assessments of Dr Harrington and Dr Ghabrial on pages seven and eight of the MAC[18].
[18] Appeal Papers pp 36 & 37.
The appellant submits that the AMS has not provided reasons why he disagrees with both
Dr Ghabrial and Dr Harrington on the issue of WPI as a result of the scaring resulting from the surgery undertaken to treat the appellant’s fractured pelvis.The appellant submits that this lack of reasoning is not appropriate for an assessment report on such an important issue which will prejudice her rights, having regard to the 21% WPI threshold which if achieved, would entitle her to additional benefits referred to in [30] above. The Appeal Panel does not accept this submission for the reasons referred to in [38] above. The appellant has not put forward any submission, nor referred to any section of the 1998 Act or guidelines issued by the Commission, that require an AMS to specifically give reasons for differing from the opinions of independent medical examiners whose reports are tendered by the parties to a dispute. Part 4 of the Workers compensation medical dispute assessment guidelines issued by the State Insurance Regulatory Authority (SIRA) referred to in [4] and [11] above contain the following requirements for the issuing of the medical assessment certificate:
“4.1 The AMS is to provide the Registrar with a completed MAC within 10 working days of the assessment.
4.2 The MAC must be in the form approved by the Registrar and must include the following information:
4.2.1 details of the matters referred for assessment
4.2.2 the AMS’s opinion with respect to those matters
4.2.3 total amount of whole person impairment (where applicable)
4.2.4 the facts on which that opinion is based
4.2.5 the AMS’s reasons for that opinion or diagnosis
4.2.6 in matters related to permanent impairment, correct reference to the Table of Disabilities (injuries before 1 January 2002) or to the NSW workers compensation guidelines for the evaluation of permanent impairment (injuries from 1 January 2002) is required. The Table of Maims applies to injuries received before 4 pm on 30 June 1987.”There is provision in the format of a MAC for the AMS to comment upon other medical opinions and findings submitted by the parties and, as noted hereunder, Dr Murray Hyde Page has done this. Further, although the appellant submits the principles of natural justice have been breached by the silence of the AMS on this subject, no submissions are forthcoming as to how such principles have been breached. Adamson J in Skates, referred to at [52], above notes the evident purpose of s 325(1) of the 1998 Act in providing procedural fairness to the parties.
The Appeal Panel notes that the AMS does comment upon the assessment of Dr Harrington and Dr Ghabrial in respect of the scarring as a result of the surgery to repair the appellant’s fractured pelvis. He then goes on to make his own assessment of the permanent impairment as a result of the injuries suffered by the appellant, including scarring. The AMS states that such assessment is taking place a year after the assessment of Dr Ghabrial and six months after the assessment of Dr Harrington.
Dr Murray Hyde Page notes on examination of the surgical scarring:
“She has a well healed, barely visible, transverse suprapubic scar of 6 centimetres. This causes no significant discomfort and is not apparent with any swimsuit or any other mode of dress. She could not locate any other scars.”[19]
[19] Appeal Papers p 33.
In his REASONS FOR ASSESSMENT at [10 b] of the MAC he says:
“Scarring is related to the surgical scars. She has a small transverse suprapubic mid line scar that is well healed and barely visible. It causes no significant ongoing discomfort with clothing and is not seen with her normal dressing. The scar on the lateral side of her left buttock, where the transverse left sacroiliac joint screw was inserted is not visible and causes no symptoms. Overall, with reference to TEMSKI scale, I have concluded she has 0% WPI for scarring.”[20]
In his brief comments regarding the other medical opinions and findings submitted by the
parties and, where applicable, the reasons why his opinion differs, Dr Murray Hyde Page
says:“Her surgical scar above the symphysis pubis has healed very well, is barely visible and causes no significant symptoms. She has completely normal examination of both hips and there was no stiffness. Therefore, overall I concluded that she has whole person impairment related to the fractured pelvis, noting that the pubic symphysis was intact, her low back injury and disruption of the left SI joint, where she now has evidence of S1 radiculopathy. I do not consider she has any whole person impairment related to her left foot and metatarsal fractures or due to her surgical scar over the front of her pelvis.”[21] (emphasis added)
[20] Appeal Papers p 36.
[21] Appeal Papers p 37.
Clause [1.6 b] of the Guidelines provides that:
“Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/.conditions.”
The appellant makes detailed submissions as to why the assessment of the scarring by the AMS does not comply with a 0% WPI assessment in respect of scarring with reference to the TEMSKI scale in Table 14.1 of the Guidelines. In those submissions, both the scarring resulting from the repair of the fractured pelvis and the caesarean surgery are referred to. The Appeal Panel has determined that the AMS was not in error in failing to assess the scarring resulting from the caesarean section surgery. It is the task of the AMS to assess an injured worker as he or she finds them on the day of examination, having regard to the findings on examination of, and the history provided by, the worker. The Appeal Panel finds that the AMS was not in error in assessing the appellant in respect of the scarring resulting from the surgery to repair the appellant’s fractures pelvis, pursuant to the TEMSKI scale. It is satisfied that the AMS was correct in assessing Ms Coleman as having sustained 0% WPI according to the TEMSKI scale as a result of the scarring caused by the surgical repair of the fractured pelvis.
The Panel finds that there is no demonstrable error shown in the assessment by the AMS of 0% WPI as a result of scarring caused by the surgical repair of the fractured pelvis, nor has the AMS made an assessment of such scarring on the basis of incorrect criteria.
Assessment of WPI as a result of injury to the pelvis
The appellant submits that the AMS may be (emphasis added) in error, and has made his assessment on the basis of incorrect criteria, as Table 4.3 on p 30 of the Guidelines at [5] provides that “If two out of three joints are internally fixed/ankolysed”, 8% WPI is the resulting level of impairment. This must be added to the 10% WPI assessed by the AMS to give a total of 17% WPI. This submission is not supported by the assessment of Dr Ghabrial, and in the Appeal Panel’s view, is incorrect.
Dr Ghabrial assesses the fractured pelvis pursuant to clause [2. iv.a.] of Table 4.3, that is, in relation to fractures of pelvic bones for bilateral pubic rami fractures where the maximum residual displacement is less than 2 cm, 5% WPI. The Appeal Panel agrees with this assessment. Dr Ghabrial then assesses pursuant to clause [4. i.] of Table 4.3, sacro-iliac joint dislocations or fracture dislocations with maximum residual displacement of 1cm resulting in an assessment of 8% WPI. The Appeal Panel does not agree with this assessment. Rather the appellant should be assessed with clause [4.iii.] of Table 4.3, sacro-iliac joint dislocations or fracture dislocations with internal fixation/ankylosis (which was the case with the appellant), resulting in an assessment of 5% WPI. From the Combined Values chart, the two assessments of 5% WPI result in a total assessment for the fractured pelvis of 10% WPI. This is the assessment of the AMS with which the Appeal Panel agrees.
The finding of the Appeal Panel is therefore that the AMS has not assessed permanent impairment as a result of the fractures suffered by the appellant in her pelvis on the basis of incorrect criteria, nor does the MAC contain a demonstrable error in this assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 November 2020 should be confirmed.
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