Dipre v Gha Solutions Pty Ltd
[2023] NSWPICMP 644
•6 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dipre v GHA Solutions Pty Ltd [2023] NSWPICMP 644 |
| APPELLANT: | Fabio Dipre |
| RESPONDENT: | GHA Solutions Pty Ltd |
| APPEAL PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 6 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant sustained a displaced trimalleolar fracture and underwent open reduction and internal fixation; impairment of left leg assessed at 6% and the surgical scar at 3%; appeal limited to skin assessment; appellant claimed skin impairment at 7%; Medical Assessor (MA) not qualified to assess skin impairment greater than 4% pursuant to clause 14.7 of the Guidelines; demonstrable error established as the MA did not have the qualifications under the Guidelines to assess the claim for assessment of the skin as made; appellant re-examined; examination findings showed scarring most closely falls into the 3-4% range; distinct colour contrast between the skin condition and the surrounding skin as a result of pigmentary changes; scarring easily locatable; able to easily locate the skin condition, and in some areas suture marks are clearly visible; some interference with an activity of daily living; scars non-adherent; applying best fit; skin impairment assessed at 3%; Held – Medical Assessment Certificate confirmed. |
BACKGROUND
Mr Fabio Dipre (the appellant) sustained injury to his left leg on 29 January 2020 in the course of his employment with GHA Solutions Pty Ltd (the respondent). The injury occurred when Mr Dipre was lifting a glass panel. Mr Dipre lost hold of the glass panel which fell onto his left ankle. Mr Dipre sustained a displaced trimalleolar fracture and underwent open reduction and internal fixation.
The appellant made a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) based on the reports of Dr Peter Giblin dated 17 November 2022. The claim included an assessment for the surgical scar caused by the surgery to the left leg.
Proceedings in the Personal Injury Commission (Commission) were commenced as a medical dispute had arisen following the exchange of relevant correspondence. As there were no liability issues, the assessment of permanent impairment was referred by the President to a Medical Assessor.
The medical dispute was assessed by Medical Assessor Burrow who issued a Medical Assessment Certificate dated 22 August 2023 (MAC).
The assessment of permanent impairment is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[1] The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[2]
[1] The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[2] Clause 1.1 of the fourth edition guidelines.
MEDICAL ASSESSMENT
It is unnecessary to refer to the MAC in detail given the scope of the grounds of appeal which were limited to the assessment of the scar.
The reasons provided by the Medical Assessor on the scar were:
“Table 14.1: Using the principle of best fit: 3% WPI as Mr Dipre is conscious of the scar, there is noticeable colour contrast of the scar or skin condition with the surrounding skin as a result of multiple pigmentary or other changes (swelling), he is easily able to locate the scar, there are trophic changes evident to touch (itchiness), any staple or suture marks are clearly visible particularly on the lateral malleolar scar, the anatomic location is usually visible with shorts, there is no contour defect however, negligible effect on ADL and no treatment is required but there is some adherence.”
The Medical Assessor also stated:
“In assessing scarring, Dr Giblin has found 7% whole person impairment with reference to TEMSKI Table 14.1. I note that that quantum can only be used by Clinicians trained in the assessment of skin conditions (I am not) but also acknowledge that given the characteristics of the scar, Mr Dipre, using the principle of best fit, more likely fits into 3%-4% as I have detailed above.”
The Medical Assessor assessed the left lower extremity at 6% permanent impairment and the skin at 3%. This produced a combined permanent impairment of 9%.
APPLICATION TO APPEAL THE MEDICAL ASSESSMENT
On 18 September 2023 Mr Dipre lodged an Application to Appeal Against the Decision of a Medical Assessor.
The appellant relied on the ground of appeal under s 327(3) of the 1998 Act that the MAC contained a demonstrable error.
On 6 October 2023 the respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor.
The delegate of the President was satisfied that a ground of appeal has been made out.
We are required to only address the subject matter of the ground of appeal. In Queanbeyan Racing Club Ltd v Burton[3] Basten JA stated:[4]
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors’ reasoning with respect to that finding; neither course was part of its statutory function.”
[3] [2021] NSWCA 304 (Burton).
[4] At [35], Leeming and McCallum JJA agreeing.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment.
Dr Peter Giblin, orthopaedic surgeon, provided two reports dated 17 November 2022. In respect of his assessment of the scar, Dr Giblin stated:
“His scarring is assessed as per Temski considerations as described in Table 14.1 on page 74 of the Guides.
In terms of these criteria, the claimant is conscious of the scar, there is gross colour contrast and pigmentary changes. The claimant is easily able to locate the scar, trophic changes are visible. The staple and suture marks are visible via pigmentary changes. The anatomic location is usually exposed unless long socks and long trousers are worn. There is a minor contour defect. There is some limitation of Activities of Daily Living. At this stage, there is adherence but no treatment is required.
Given that the majority of the criteria were satisfied for a WPI assessment of between 5% and 9%, I have allocated him 7% Whole Person Impairment.”
Dr Anil Nair, orthopaedic surgeon, was qualified by the respondent and provided two reports in January 2023.
Dr Nair in brief reasons described the scar as “tender … with hypertrophic edges” and assessed skin impairment at 2%.
SUBMISSIONS
Appellant’s submissions
The appellant noted that the Medical Assessor stated that only medical practitioners trained in the assessment of skin condition can assess impairment greater than 4%. It submitted that it was a demonstrable error by the Medical Assessor in failing to recuse himself from assessing scarring and deferring the assessment to a suitably qualified Medical Assessor.
The appellant noted that the Medical Assessor was limited to assessing a maximum of 4% despite the fact that the claim was greater than 4% as assessed by Dr Giblin.
The appellant submitted that it should be referred to a suitably qualified Medical Assessor to determine the permanent impairment of scarring which could be undertaken on the papers.
Respondent’s submissions
The respondent noted that the appellant did not allege error on the basis of incorrect criteria within the meaning of s 327(3)(c) of the 1998 Act.
The respondent referred to that part of the decision in Mahenthirarasa v State Rail Authority of New South Wales[5] where the Court stated:
“A demonstrable error would essentially be an error from which there is no information or material support the finding made - rather than a difference of opinion.”
[5] [2007] NSWSC 22.
The respondent referred to in clause 14.7 of the Guidelines which permits Medical Assessors who are not trained in the skin body system to determine impairments in the range of 0 to 4% that have been caused by minor scarring following surgery.
The respondent submitted that the MAC does not contain a demonstrable error as the medical assessment was permitted, by clause 14.7 of the guidelines, to conduct the assessment in the manner he did.
The respondent noted that the parties were advised in an email dated 25 July 2023 that the matter had been allocated to Medical Assessor Burrow. No issue was taken by the appellant in relation to the suitability of the medical assessor to conduct the assessment scarring at that time.
The respondent noted that Dr Giblin had assessed 7% permanent impairment in circumstances where he was not trained in skin conditions. It was noted that the appellant did not rely on a qualified report from a plastic surgeon trained in the skin body system. Accordingly, there was no requirement for the matter be referred to a plastic surgeon for assessment of the skin.
REASONS
Demonstrable error
The Appeal Panel can analyse the evidence when determining whether the certificate contains a demonstrable error: Vannini v Worldwide Demolitions Pty Ltd.[6] In Vannini Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales, a “demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”.[7]
[6] [2018] NSWCA 324 (Vannini) at [90].
[7] Vannini at [86].
The respondent referred to the first instance decision of Mahenthirarasa. The passage quoted by the respondent does not reflect the full extent of the meaning of demonstrable error as discussed by the Court of Appeal in that matter or in Vannini.
An error is not demonstrable “merely because the Panel disagrees with the opinion of the approved medical specialist”.[8] The Court otherwise noted that how the reasoning may be shown to be wrong “depends on what the reasoning is about”.[9]
[8] Vannini at [87].
[9] Vannini at [89].
The issue is this case is that the Medical Assessor accepted that he did not have the qualifications or training to assess the skin claim which was claimed at 7%.
Clause 1.40 of the Guidelines provides:
“The assessor will have qualifications, training and experience relevant to the body system being assessed. The assessor will have successfully completed requisite training in using the Guidelines for each body system they intend on assessing. They will be listed as a trained assessor of permanent impairment for each relevant body system(s) on the State Insurance Regulatory Authority website at sira.nsw.gov.au.”
Clause 14.7 of the Guidelines relevantly provides:
“The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0–4% in the class 1 category, that has been caused by minor scarring following surgery. Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in the assessment of the skin body system.”
The respondent correctly noted that the opinion supporting the claim of 7% for the skin was not provided by a doctor with the appropriate qualifications and that the appellant made no objection to the appointment of the Medical Assessor. It also correctly submitted that no submissions were made by the appellant indicating any error by the Medical Assessor in the application of the Guidelines to the assessment of skin impairment.
Clause 14.7 of the Guidelines require that:
“Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in the assessment of the skin body system.”
Clearly the Medical Assessor could not assess impairment of the skin greater than 4% as was acknowledged in the Reasons. With some reservations and without setting any general precedent we accept that there was a demonstrable error as the Medical Assessor did not have the qualifications under the Guidelines to assess the claim for assessment of the skin as made.
The appellant otherwise submitted that the matter could be determined “on the papers”. There was no articulation by the appellant how that could be undertaken when the Appeal Panel is required to consider various criteria in reaching a determination of the appropriate assessment. Accordingly, the Appeal Panel determined that the appellant be examined by Medical Assessor Curtin who has the appropriate expertise and training in the Guidelines to assess the skin.
Re-assessment
Mr Dipre was examined by Medical Assessor Curtin on 1 December 2023.
The examination report is as follows:
“1. The workers medical history, where it differs from previous records
The history is largely unchanged. Mr Dipre injured his left ankle in an accident at work on the 28/01/2020. He was in the process of lifting a large glass panel when he stumbled and fell, injuring the ankle. He did not suffer any injury from the glass panel.
Following the accident, he was admitted to the Royal North Shore Hospital for five days and underwent an open reduction and internal fixation of a displaced tri-malleolar fracture of the left ankle. His recovery in hospitals uncomplicated and he was discharged home on crutches. He subsequently had a course of physiotherapy was kept under review by the treating surgeon and also by his General Practitioner. Ongoing symptoms of discomfort from his left ankle have prevented him from returning to his former occupation.
2. Current symptoms and effects on Activities of Daily Living
Mr Dipre said that as a result of the accident his ankle remains swollen and stiff, and there has been some restriction in his mobility. He was aware of permanent scarring on his ankle, and that this scarring was due to surgical treatment of the ankle fracture. He said that he was aware of altered sensation and pruritus on the medial aspect of the ankle, and that he used various creams to provide relief (Ice gel, arnica cream). Mr Dipre was asked specifically about his footwear, but he did not report that the accident had resulted in any restriction in the type of shoes or boots that he could wear.
3. Findings on clinical examination.
Mr Dipre was a fit looking Caucasian man of 62 years. He had a fair complexion and a BMI of 26.9 (88 kg and 181 cm).
The left ankle was noticeably swollen compared with the right side. Mr Dipre appeared to be wearing identical soft leather shoes on his feet. On the medial surface of the ankle there was a fine line scar extending vertically for 8 cm immediately posterior to the malleolus. The scar was quite soft, pale, nonadherent and with no visible suture marks. The scar was associated with a broad band of noticeable dark pigmentation immediately posterior and inferior to it. There was an area of altered sensation but it appeared to be confined to the immediate vicinity of the scar itself. The scar was not tender to gentle palpation but he complained of some sensitivity to deep pressure in one localised area. On the lateral aspect of the ankle there was a similar scar extending vertically upwards from the lateral malleolus for 8 cm. This scar was also a fine line, soft and flat, there were a few visible suture marks and there was a similar zone of dark pigmentation immediately posterior and inferior to it. This pigmented area appeared to be associated with some loss of the normal contour of the ankle.
There did not appear to be any sensitivity or noticeably altered sensitivity in relation to this scar. The scarring on his ankle did not appear to be sensitive to any particular chemical or physical agents, such as extremes of temperature.
5. Comments on Whole Person Impairment
The WorkCover Guidelines 4th Ed directs the assessor to table 8-2 in AMA 5 which describes five classes of permanent impairment which are determined by three components, namely signs and symptoms of skin disorders, limitations in the activities of daily living and the requirement for treatment. For Class1 impairments the TEMSKI chart (Guidelines P 74) is to be used to further define the precise level of impairment. The Guidelines also state that the skin is regarded as a single organ and that the scars should be measured together rather than assessing individual scars separately.
The scarring falls into the class I category of table 8-2. The skin disorder has signs and symptoms which are currently present. The scarring is responsible for few limitations in the performance of activities of daily living and the scarring requires either no or intermittent treatment. Eight groups of ADLs are listed in table 1-2 on page 599 of AMA5. There is only one of these listed activities, sensory function, which is affected by the scarring on his ankle. Mr Dipre’s other complaints of reduced mobility are not related to the scarring but are due to injury of the deeper structures. The scarring therefore does not fall into the Class 2 category which is associated with ‘limited performance of some activities of daily living’.
After reference to the TEMSKI chart, the scarring most closely falls into the 3-4% WPI category. There is a distinct colour contrast between the skin condition and the surrounding skin as a result of pigmentary changes. The claimant is able to easily locate the skin condition, and in some areas suture marks are clearly visible. The location of the skin condition is visible with usual clothing and the sensory changes in relation to scarring on the medial aspect of the ankle have resulted in some interference with an activity of daily living. Although the very noticeable pigmentation is a feature of the 5-9% WPI category, the fact that the scars were nonadherent and that chemical and physical agents do not temporarily increase limitation, place the skin condition in the 3% category.”
The Appeal Panel adopts the findings of Medical Assessor Curtin whilst adding the following further reasons.
Skin disorders are divided into five Classes based on the severity of signs and symptoms, the limitation in the performance of the activities of daily living and the need for treatment.[10]
[10] Table 8-2 of AMA 5 and paragraph 14.4 of the fourth edition guidelines.
Many surgical scars fall within Class 1 of Table 8.2 because there is usually no impact on the performance of the activities of daily living and no need for ongoing treatment.
If the scar is classified as Class 1 of Table 8-2 then Table 14.1 of the fourth edition guidelines is applied. This is clear from paragraph 14.7 of the fourth edition guidelines which provides:
“The table for the evaluation of minor skin impairment (TEMSKI) (see Table 14.1) is an extension of Table 8-2 in AMA5. The TEMSKI divides class 1 of permanent impairment (0-9%) due to skin disorders into five categories of impairment.”
Table 14.1 of the fourth edition guidelines contains multiple criteria in evaluating skin impairment. This is known as the TEMSKI scale. The criteria are:
· whether the claimant was conscious of the scar;
· whether there was good colour match with surrounding skin;
· the anatomical location of the skin and its visibility with “usual clothing/hairstyle”;
· the presence of trophic changes;
· the presence of staple or suture marks;
· whether there was contour deficit;
· the effect, in any, on the activities of daily living;
· whether any treatment was required, and
· whether there was any adherence to underlying structures.
The Medical Assessor is required to use the principle of “best fit” in assessing the relevant percentage under the TEMSKI scale. Given the nature of the discretion in assessing a “best fit” under Table 14.1, reasonable minds may differ in assessing a particular percentage given that there are no clearly defined lines between the various percentages.
Based on the findings by Medical Assessor Curtin, the surgical scar is classified as Class 1 of Table 8-2 because there is no need for treatment and few limitations in the performance of activities of daily living.
Based on the examination findings and conclusions of Medical Assessor Curtin, together with these further reasons, we assess the skin impairment at 3%. These reasons otherwise explain why the Panel has assessed the skin at 3% and differ from the assessment provided by Dr Giblin.
The scar is well stabilised and unlikely to change substantially in the next year with or without treatment. Accordingly, the impairment is permanent as defined in the Guidelines.
CONCLUSION
Whilst we have found demonstrable error, the Appeal Panel’s finding of permanent impairment is the same as the original Medical Assessor. For these reasons, the MAC issued on 22 August 2023 is confirmed.
0
3
0