Equity Transport Group Pty Ltd v Papera
[2021] NSWPICMP 105
•28 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Equity Transport Group Pty Ltd v Papera [2021] NSWPICMP 105 |
| APPELLANT: | Equity Transport Group Pty Ltd |
| RESPONDENT: | Miranda Papera |
| APPEAL PANEL: | Member Catherine McDonald Dr Drew Dixon Dr Margaret Gibson |
| DATE OF DECISION: | 28 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for compensation for left shoulder injury and scarring; referral to Medical Assessor for assessment of left upper extremity without limitation; Medical Assessor assessed impairment arising from shoulder and elbow; no claim re elbow; Skates v Hills Industries Ltd considered; Held- MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 March 2021 Equity Transport Group Pty Ltd (Equity Transport) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Siu Kin Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 March 2021.
The appellant relies on the ground of appeal in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that 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 WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
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
Ms Papera suffered an injury to her left shoulder when she tripped over a phone charger cord in her office on 10 August 2019. Radiology revealed a displaced lesser tuberosity fracture. Dr A Low, orthopaedic surgeon, undertook an open left shoulder arthroscopic acromioplasty, biceps tenodesis and subscapularis repair on 23 September 2019.
The referral to the Medical Assessor was in respect of the left upper extremity and scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI). It did not specify that the injury was to Ms Papera’s shoulder.
The Medical Assessor said that Ms Papera injured her left shoulder and left elbow. He assessed 26% upper extremity impairment (UEI) in respect of her shoulder and 10% UEI in respect of her left elbow. He combined those figures to reach 30% UEI or 18% whole person impairment (WPI). He assessed an additional 1% for scarring.
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 WorkCover Medical Assessment Guidelines 2006.
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 there is no dispute how the assessment was made, merely whether the component of the assessment for the left elbow should be included.
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.
The parts of the medical certificate given by the Medical Assessor 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.
In summary, Equity Transport submitted that Ms Papera claimed compensation for an injury to her left shoulder and scarring, based on the assessment of 16% WPI made by Dr P Endrey-Walder. Equity Transport’s insurer made an offer based on the assessment of Dr V Panjratan, who assessed 13% permanent impairment as a result of the shoulder injury.
Equity Transport relied on the decision in Skates v Hills Industries Ltd[1] (Skates) where Adamson J found that an Approved Medical Specialist was in error to assess body parts in respect of which the worker did not allege had been injured.
[1] [2020] NSWSC 837
In submissions prepared by Mr Moffet of counsel, Ms Papera submitted that she injured her left elbow and that the injury was never disputed by Equity Transport. She said there was no demonstrable error because the Medical Assessor correctly quoted the terms of the referral (the left upper extremity) and it cannot be said there was no information to support the finding in respect of the left elbow. The assessment of the left elbow was within the scope of the medical dispute and the Medical Assessor did not exceed his statutory authority by making the assessment. Ms Papera’s submissions sought to distinguish Skates on the basis that some of the assessed body parts fell outside the terms of the referral.
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[2] 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor took the history that Ms Papera “fell and landed on all four [sic] but her left arm took most of the impact. She felt immediate severe pain at the left shoulder. She also had pain at the left elbow.”
With respect to present symptoms, the Medical Assessor recorded:
“Ms Papera complains of constant severe pain at the left shoulder. This pain is aggravated by movement of the shoulder. She has severe stiffness at the left shoulder. She informs me that she has no current symptoms at the left elbow.”
The Medical Assessor set out his findings on examination, including the range of movement in both shoulders. He found some limitation of the range of movement in Ms Papera’s uninjured right shoulder, representing 4% UEI. He assessed 26% UEI in her left shoulder and, after deducting the UEI assessed for the right shoulder, the result was 22% UEI.
There is no appeal with respect to the way the Medical Assessor assessed Ms Papera’s left shoulder or scarring.
The Medical Assessor said:
“The right elbow was entirely normal on examination. The left shoulder had pain on palpation and on movement. The goniometric data obtained today for the left shoulder are tabled below.”
He assessed 10% UEI with respect to the left elbow.
The Medical Assessor summarised the injuries and diagnoses:
“Ms Papera is a 49-year-old woman who had a fall at work sustaining a fracture at the lesser tuberosity of her left shoulder and she also suffered a soft tissue to left elbow. She had surgery to the left shoulder and conservative treatment to the left elbow. Ms Papera continues to suffer pain and stiffness at the left shoulder and elbow affecting many aspects of her daily activities and her capacity to work.”
He summarised his opinion and the reasons for his assessment:
“Ms Papera had injury to her left shoulder and left elbow while at work. I have assessed the whole person impairment at 19%.
In making that assessment I have taken account of the following matters: -
The left shoulder was rated at 26% UEI based on goniometric data obtained today. This was reduced to 22% UEI after adjustment against the ‘normal’ right shoulder. Despite of a lack of symptoms from the worker for her left elbow. The left elbow was tender to touch and painful to move. Ms Papera thought her left elbow symptoms were from her left shoulder injury. The right elbow was entirely normal. The left shoulder had 10% UEI from range of motion restrictions on this examination.”
The Medical Assessor noted that neither Dr Endrey-Walder nor Dr Panjratan provided a rating for Ms Papera’s left elbow.
Evidence concerning the left elbow
The references in the evidence to Ms Papera’s left elbow are fleeting. Ms Papera said in her statement that on 23 August 2019 she had an x-ray and ultrasound of the left elbow, among other investigations.
A certificate of capacity dated 14 August 2019 noted an injury to the left elbow, among others.
Dr Endrey-Walder recorded that a referral to a physiotherapist noted symptoms in her left shoulder and arm, left elbow, both knees and neck. He said that Ms Papera was referred to Dr Biggs for left shoulder and elbow pain but the examination did not occur.
Dr Endrey-Walder noted that Ms Papera complained to her general practitioner of elbow pain on 18 October 2019. When reviewing the radiological investigations, Dr Endrey-Walder said that the x-ray and ultrasound of Ms Papera’s left elbow were unremarkable. He noted that she did not complain of symptoms in the left elbow and he did not record any examination findings in respect of it.Dr Panjratan did not mention Ms Papera’s left elbow in his report. The questions he answered show that he was asked if he agreed with Dr Endrey-Walder’s assessment and to assess her shoulder.
The claim was generally accepted and no dispute was raised in respect of any aspect of the injuries suffered. However, no claim for permanent impairment compensation had been made in respect of an elbow injury and Dr Endrey-Walder did not assess any permanent impairment.
Legal issues
The referral to the Medical Assessor asked that he assess the left upper extremity and scarring under the TEMSKI. The referral with respect to the left upper extremity did not specify the part of that limb which was the subject of the injury. It replicated the permanent impairment claim pleaded in the Application to Resolve a Dispute (ARD). However, the injury description in the ARD was “[t]he Applicant suffered physical injuries to her left shoulder and scarring while at work on 10 August 2019”.
The form of the referral put the Medical Assessor in a difficult position. It is conceivable that a fall onto Ms Papera’s left arm could have jarred her elbow and a referral in respect of the left upper extremity might suggest that any impairment in that extremity should be assessed.
The determination of this appeal is squarely covered by the decision in Skates. While a decision is pending on an appeal to the Court of Appeal, the decision of the Supreme Court is binding on this Panel until the appeal is determined.
Mr Skates was referred to an Approved Medical Specialist (AMS) (under the legislation as in force at that time) for assessment in respect of his left upper extremity (joint ring finger) and scarring. Both parties agreed that his wrist should also have been assessed but neither party drew the Commission’s attention to the omission from the referral. The AMS assessed 61% WPI in respect of the shoulder, elbow, wrist and all fingers of the left hand including the thumb and scarring.
The employer appealed and the Appeal Panel issued a new certificate assessing 7% WPI. It omitted to include the assessment for the left wrist. The Appeal Panel said that the AMS was bound by the terms of the referral.
Section 325(1) of the 1998 Act provides that an assessor to whom a medical dispute is referred is to provide a MAC “as to the matters referred for assessment.” Adamson J said:
“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.”[3]
[3] At [51].
After considering a number of authorities, Her Honour said:
“I reject the contention of [counsel for Mr Skates] that the reference to ‘body parts referred’ could be disregarded by the AMS or that it constituted an unwarranted exercise of power by the Registrar. These body parts were the very same body parts as had been identified by the Claimant in the application to resolve a dispute which was filed by him on 8 August 2017. As the extract set out above indicates, the application identified a dispute which the Claimant said could be determined by the Commission under s 288 of the Act (being the dispute about lump sum compensation where liability is in dispute) and a dispute which could be determined by the AMS following referral under s 293 of the Act (being lump sum compensation where degree of permanent impairment is in dispute). The body parts claimed were nominated in Part 5.6 of the Claimant’s application as ‘left upper extremity, joint ring finger and scarring’. Thus, it was not the Registrar who was constraining the referral; it was the terms of the Claimant’s own application to resolve a dispute which contained the limitation. As was held in Aircons, the AMS is bound by the terms of the referral to confine the matters determined to those which have been referred.”[4]
[4] At [69].
The ARD filed for Ms Papera pleaded that Ms Papera suffered an injury to her left shoulder and scarring. The medical reports for both parties assessed permanent impairment in respect of her left shoulder and scarring. The submission made on behalf of Ms Papera that the ARD sought a referral in respect of the left upper extremity cannot be accepted when the claim in the same document is limited to left shoulder.
While Equity Transport has never disputed that Ms Papera suffered an injury to her elbow, that is insufficient to permit her to now recover permanent impairment compensation in respect of it. She did not make a claim as required by s 282 of the 1998 Act in respect of that compensation and could not have done on the basis of her medical evidence.
The terms of the ARD limited Ms Papera’s entitlement to assessment to her left shoulder and scarring. The brief provided to the Medical Assessor contained a copy of the ARD and all of the evidence relied on. The Medical Assessor commented on the reports of
Dr Endrey-Walder and Dr Panjratan as he is required to do by the MAC template and noted that neither doctor has assessed permanent impairment as a result of an injury to
Ms Papera’s elbow.Though the AMS may not have been alert to the legal issues, his assessment was nonetheless in error.
Reassessment
No complaint has been made with respect to the assessment of Ms Papera’s shoulder by the Medical Assessor. The reassessment can be made by using the results of the examination by the Medical Assessor.
Ms Papera’s left shoulder was assessed at 22% UEI which converts to 13% WPI. When that figure is combined with 1% for scarring, the resulting total is 14% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 February 2021 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
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Siu Kin Cyril Wong 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) |
| Left upper extremity | 10 August 2019 | Chapter 2, pp 10 to 12 | Chapter 16 Pp 433-521 | 13% | Nil | 13% |
| Scarring. | 10 August | Chapter 14 Table 14.1 | 1% | Nil | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
Catherine McDonald
Member
Dr Drew Dixon
Medical Assessor
Dr Margaret Gibson
Medical Assessor
28 June 2021
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