Ferri v Friends Pizzeria (NSW) Pty Ltd
[2022] NSWPICMP 53
•17 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ferri v Friends Pizzeria (NSW) Pty Ltd [2022] NSWPICMP 53 |
| APPELLANT: | Marco Ferri |
| RESPONDENT: | Friends Pizzeria (NSW) Pty Ltd |
| APPEAL PANEL: | Member Paul Sweeney Dr Roger Pillemer Dr Gregory McGroder |
| DATE OF DECISION: | 17 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker appeals on multiple grounds including failure to assess his right wrist and the deduction of 50% pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in respect of a pre-existing osteoarthritic condition of the right thumb; Held- that failure to examine or record the examination of the wrist demonstrable error; no error in the deduction of 50% in respect of right thumb; on re-examination findings of the Medical Assessor (MA) confirmed-no impairment of the right wrist; typographical or calculation error in Medical Assessment Certificate (MAC); MA’s assessment of whole person impairment confirmed but MAC revoked and new MAC issued to correct the typographical error. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 June 2021, Marco Ferri (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA, formerly an Approved Medical Specialist). The medical dispute was assessed by Dr You-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 May 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
· 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 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
The appellant suffered injury in a motor vehicle accident in the course of his employment as the manager of a pizza restaurant on 20 May 2015. He injured his right hand. Relevantly, he states:
“The impact also caused my right thumb to jar and twist against the steering wheel and I experienced immediate pain in my right thumb, particularly around the base area.”
Following the accident, the appellant sought treatment at the Wollongong Hospital. When his symptoms did not resolve, he attended his general practitioner, Dr Haider Jasim of Warrawong. He was treated conservatively for several months without improvement in the condition of his thumb. He was then referred to Dr Jansen, an orthopaedic surgeon, who performed a right thumb trapeziectomy and arthroplasty at Wollongong Private Hospital on 4 February 2016.
Following this surgery the appellant continued to experience symptoms in his right thumb and hand which interfered with the manner in which he performed both his work and domestic tasks. He also developed pain in his right arm and shoulder.
After extensive conservative treatment of his right shoulder failed, the appellant underwent a right shoulder arthroscopy and decompression at Wollongong Private Hospital on 19 April 2018. He continues to experience symptoms in his right thumb and pain and restriction of movement in his right shoulder.
Friends Pizzeria (NSW) Pty Ltd (the respondent) accepted liability for the appellant’s injuries and he has been paid workers compensation during his absences from work. By these proceedings, he claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The appellant’s claim for compensation is based upon the opinion of Dr Medhat Guirgis, an orthopaedic surgeon, who provided a report of 25 August 2020 to his solicitor. By this report, Dr Guirgis assessed 15% upper extremity impairment (UEI) of the right thumb, 8% UEI at the right wrist, and 9% UEI of the right shoulder. This gave rise to an assessment of 18% whole person impairment (WPI) from which Dr Guirgis deducted one tenth pursuant to s 323(2) of the 1998 Act for a pre-existing injury or condition. That resulted in an assessment of 16% WPI to which Dr Guirgis added 2% WPI for TEMSKI scarring.
Professor William Cumming, an orthopaedic surgeon, saw the appellant on two occasions at the request of the respondent’s insurer. By a report dated 8 October 2015, he expressed the opinion that the appellant had suffered trauma to an “advanced osteoarthritic” joint of the right thumb in the motor vehicle accident. He noted that the appellant had previously undergone surgery to his left thumb and opined that he would require similar surgery to his right thumb.
By a further report dated 13 October 2020, Professor Cumming considered Dr Guirgis’ report and assessed permanent impairment. Professor Cumming accepted that demobilisation of the appellant’s right arm following surgery caused an aggravation of pre-existing pathology in his right shoulder. Professor Cumming assessed 13% WPI of the appellant’s right arm as a result of the injury. From this he deducted 50% for a pre-existing condition or injury pursuant to s 323 of the 1998 Act. He made no allowance for TEMSKI scarring. Thus, his final assessment was 7% WPI.
The difference of opinion as to WPI between Dr Guirgis and Professor Cumming gave rise to a medical dispute as that term is defined by s 319 of the 1998 Act. Accordingly, the Registrar of the former Workers Compensation Commission referred the matter to a Medical Assessor. On 13 May 2021, Dr Ho certified that the appellant suffered 9% WPI of the right upper extremity after a deduction pursuant to s 323 of the 1998 Act. He added 1% for TEMSKI scarring. It is from that assessment that the appellant appeals.
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. The panel noted a mathematical or typographical error in the MAC which required correction. The panel also concluded there was prima facie error in the MAC in that the MA either did not examine the appellant’s right wrist or, alternatively, did not record the results of his examination. Plainly, the right wrist was a component of the medical dispute between the parties. It had been assessed by Dr Guirgis, who expressed the opinion that the restriction of movement gave rise to UEI.
In view of the MA’s failure to resolve this aspect of the medical dispute, the panel determined that it was necessary for the worker to undergo a further medical examination by a member of the panel. The panel was unable to find any other error which might alter the outcome of the assessment. In particular, it concluded that the MA was not in error in making a deduction for a pre-existing condition pursuant to s 323 of the 1998 Act.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition 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 into evidence a letter of referral dated 29 May 2021 from a general practitioner at the Warrawong Accident and Medical Centre to Dr Stuart Jansen. The letter is in general terms merely referring the appellant for “an opinion and management” of his right arm. The appellant submits that this evidence is relevant to the issue of whether he has reached maximum medical improvement (MMI).
The respondent submits that the referral is of no evidentiary value on this issue. For reasons that are given below, the panel accepts this submission. While it is evidence that was not available prior to the MA’s consultation with the appellant, it does not advance his case as it cannot, either alone or in combination with other evidence, alter the outcome of these proceedings.
As the respondent did not specifically object to its reception in evidence, the panel concluded that it was probably preferable to admit the document into evidence and deal with it in its reasons.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Pillemer of the appeal panel conducted an examination of the worker on 28 February 2022 and reported to the appeal panel. In so far as it is relevant, his report is as follows:
“Mr Ferri was examined by Dr Y K Ho (orthopaedic surgeon) on 13 May 2021 and was asked to make an assessment of his right upper extremity and scarring (TEMSKI) in terms of whole person impairment as a result of an injury on 20 May 2015.
1. The workers medical history, where it differs from previous records
I read Mr Ferri the history that was taken by Dr Ho on 13 May 2021 and he agreed that this was accurate. He did add that as far as his present job with Centrelink is concerned, he is ‘loving it’.
Mr Ferri was understandably very concerned about the extent of the deduction that the MA has made, noting that he had no problems with the base of his right thumb prior to the motor vehicle accident on 20 May 2015.
Under the heading “Details of any previous or subsequent accidents, injuries or condition”, the MA has noted ‘He had another fall on the right wrist in October 2014 and in his file there was an x-ray done in the Wollongong Hospital Emergency Department showing the first CMC joint OA and the x-ray after the motor vehicle accident in 2015 certainly showed the deterioration’.
2. Additional history since the original Medical Assessment Certificate was performed
On specific questioning in this regard, Mr Ferri informs me that the symptoms in his right wrist settled down completely following the original injury in October 2014, and that his right wrist feels ‘brand new’.
Mr Ferri continues to complain of ongoing problems with the base of his right thumb but these symptoms only seem to worry him on an average of once a week and can last for up to half a day at a time and can go up to 7/10. At other times the joint is quite comfortable. If he knocks the area it can be very painful, and he is still aware of pins and needles involving the thumb as noted by the MA.
Mr Ferri still gets ongoing discomfort in his right shoulder region which tends to wake him at night and feels ‘stiff and painful’, but he has no particular problems during the day. He has however given up golf and he would not throw a ball with his right hand.
His main concern however is that he had to give up his restaurant because of his ongoing symptoms and that he still gets calls on a regular basis to work as a chef and he says that he ‘would love to try five shifts in the kitchen’.
3. Findings on clinical examination
Please note that my findings on examination with regard to the range of movement of the right shoulder and right thumb are very similar to those noted by the MA.
Mr Ferri has a full range of wrist movement on the right side compared to the left which was pain-free.
Right Wrist Movements
Movement
Right
% Upper Extremity Impairment
Flexion
60°
0
Extension
60°
0
Radial deviation
20°
0
Ulnar deviation
30°
0
Total
0%
He has full pronation and supination of both forearms. There was no wasting to circumferential measurement.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Ferri has not had any further investigations carried out.”
Medical Assessment Certificate
The parts of the MAC given by the MA that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel. In summary, the appellant relied on all four grounds of appeal in s 327 of the 1998 Act.
In respect of s 327(3)(a) and (b), the appellant submitted that his:
“condition has deteriorated to the point where updated radiological testing is required and further consultation with specialist orthopaedic surgeon Dr Stuart Jansen.”
The appellant submitted that this further intervention confirms “that the elements of s 327(3)(b) have been made out”. The additional information was not available and could not reasonably have been obtained before the MAC. The appellant also asserts that the further consultation with Dr Jansen is “evidence of the likely increase in overall permanent impairment”.
In respect of incorrect criteria, the appellant makes a general submission that the MA has “failed to review, consider and correctly apply all of the evidence available to him”. He refers to the MA’s conclusion based on an MRI of the right shoulder dated 29 January 2018 that the surgery performed by Dr Jansen was “a simple decompression surgery”. That conclusion is wrong as evidenced by Dr Jansen’s post-operative review, which refers to a partial tear of the supraspinatus tendon.
The appellant then asserts that the MA failed to properly address all scans, give appropriate weight to the findings of Dr Guirgis in respect of his right wrist, and erred in the methodology he employed to make a deduction for a pre-existing condition pursuant to s 323 of the 1998 Act.
The MA erred in applying s 323 as he relied solely on an x-ray performed approximately six months prior to the subject injury which revealed “obvious degenerative changes” and provided no comprehensive analysis on why he made such a significant deduction. The appellant also points to the evidence of Dr Jansen that he had experienced “increasing pain” since the injury and that there had been an increase in the size of the cyst in his wrist.
The appellant refers to the reasoning in Pereira v Siemens Ltd [2015] NSWSC 1113 (21 August 2015) which states that a deduction pursuant to s 323 must be based on fact rather than assumption. He argues that the presence of degenerative changes does not “automatically prove impairment”.
The appellant argues that the evidence did not support a “previous condition” of the right wrist. Importantly, the appellant’s statement recorded that he had no difficulties or restriction with his right thumb “immediately prior to my motor vehicle accident”. Thus, it is unlikely that the osteoarthritis in the thumb was so severe as to lead to a “50% deduction in impairment”. The MA failed to give appropriate weight to the fact that the appellant was asymptomatic at the time of the work injury. In these circumstances, the appropriate deduction was that prescribed by s 323(2).
The appellant then alleges that the MAC contains a demonstrable error in that the certification of the MA was contrary to the evidence and failed to have regard to all of the relevant evidence.
The appellant sought a review of the assessment by a Member of the panel. He submitted, however, that this should not take place until he had reached MMI. Accordingly, he sought an extension of time to enable him to undergo “investigations into further treatment requirements and obtain an updated IME from Dr Guirgis”.
The respondent submitted that there was ample radiological evidence available in a bone scan report dated 11 May 2012, x-rays dated 29 October 2014 and 27 May 2015, and an MRI scan of 26 October 2015 to demonstrate that the appellant suffered pre-existing degenerative changes at the time of injury. It was immaterial that the appellant was asymptomatic prior to the injury. It was the extent to which the pre-existing degenerative disease contributed to the impairment or loss that had to be determined by the MA. The respondent continued:
“the nature and extent of the degenerative changes meant that the subject injury was substantially worse than it otherwise would have been, and indeed the surgical treatment that the applicant received was to a large extent directed towards the severe degenerative change which predated the injury.”
The respondent submitted that the MA had considered the other medical evidence including the opinion of Dr Guirgis and provided adequate reasons for the conclusion that the deductible proportion should be 50%.
In respect of the allegation of deterioration, the appellant argues that the referral for a further radiological investigation is not evidence in support of a deterioration. It argues that the referral makes no reference to the need for further consultation or to “deterioration”. Further, there is no evidence that there has been a deterioration in the appellant’s condition that results in an increase in the degree of permanent impairment. It continues:
“The respondent submits that the appellant has not put before the Commission any evidence to support a conclusion that his condition has deteriorated such as to lead to a finding that there would be substantial change in the next year.”
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284, the Court of Appeal held that the appeal panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Kocak) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Kocak, it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
Following Dr Pillemer’s re-examination of the appellant, the panel reconvened to determine the issues in dispute on the appeal. The panel concluded that it should accept his findings on examination. They have the obvious advantage of being more recent than the other assessments of WPI. They are also consistent with the findings on examination of the MA. Against that background the panel dealt with the remaining issues in dispute.
Maximum medical improvement and deterioration
While the letter of referral relied on by the appellant was obtained after the issue of the MAC, it is not persuasive evidence in respect of MMI, deterioration, or any issue that the panel is required to determine. As the appellant underwent surgery on his right thumb in 2017, and on his right shoulder in 2018, it is unsurprising that he may require specialist review from time to time. It cannot be inferred from such a review that there has been a deterioration of the appellant’s condition since the medical assessment on 20 May 2021.
At the time of that assessment, some six years had elapsed since the appellant’s injury and more than three years since his last surgical procedure. After a thorough examination of the appellant at the time of the assessment, the MA concluded that his injuries had reached MMI. His opinion was consonant with those of Dr Guirgis and Professor Cumming, the specialist medical practitioners whose opinions on MMI and WPI gave rise to the medical dispute in the matter. Finally, Dr Pillemer, who examined the appellant on 28 February 2022 was also of the opinion that the appellant had obtained MMI.
The letter of referral does not suggest that there has been a deterioration in the appellant’s condition of a kind “that results in an increase in the degree of permanent impairment” as required by s 327(3)(a) of the 1998 Act. It was open to the appellant to adduce statement evidence or evidence from his general practitioner addressing the deterioration of his condition in the months since the MAC. There is no such evidence. It follows that he has not established a deterioration in his condition since the assessment which results, or is likely to result, in an increase in permanent impairment.
In the absence of such evidence, it is inappropriate to consider the appellant’s request that the panel delay the consideration of the matter pending the receipt of further evidence including a report from the appellant’s IME which is not currently available.
Incorrect criteria and demonstrable error
There is consistency in the assessments of UEI of the appellant’s right shoulder. Dr Guirgis assessed 9% UEI whereas the MA assessed 7% UEI. This may, of course, reflect the fact that the MA examined the applicant some nine months after Dr Guirgis. The MA’s findings were confirmed by Dr Pillemer.
The appellant argued that the MA’s failure to refer specifically to Dr Jansen’s post-operative reference to a partial tear of the supraspinatus tendon constituted error. However, as the assessment was based on range of movement precise identification of the pathology in the shoulder cannot alter the assessment. There is, therefore, no basis to the appellant’s criticism of this aspect of the assessment.
The panel concluded that a re-examination was necessary as it was not evident on the face of the MAC that the MA had examined the appellant’s right wrist. However, on his re-examination Dr Pillemer found a full range of movement of the right wrist compared to the left. The normalcy of the examination may explain the failure of the MA to refer to the right wrist on examination. Thus, the panel concluded that there was no error in respect of the right wrist.
In respect of the appellant’s right thumb, the findings and assessment of WPI by Dr Guirgis and the MA are similar. The MA assessed 16% UEI. Dr Pillemer confirmed that assessment of UEI. However, the MA deducted one half from this assessment pursuant to s 323 reflect the previous osteoarthritic condition of the thumb. The appellant challenges that deduction.
Section 323
In the opinion of the panel there is ample evidence to support the deduction of 50% made by the MA in respect of the appellant’s thumb. The presence of a pre-existing condition of the osteoarthritis is clearly established by the radiological evidence. An x-ray of 29 October 2014 demonstrates very advanced osteoarthritis at the carbo-metacarpal joint of the right thumb. The radiologist noted:
“Severe 1st CMC joint arthropathy. This has both degenerative and some inflammatory changes. It is best explained by osteoarthritis. There is extensive subchondral cystic change in the base of the 1st metacarpal.”
Osteoarthritis is a progressive condition. That it continued to progress after the x-ray of 29 October 2014 is demonstrated by the radiology taken shortly after the subject injury. An x-ray of 27 May 2015 is reported as follows:
“There is severe arthritis of the carpo-metacarpal joint of the right thumb with formation of large subchondral cyst.”
The MRI scan carried out in October 2015 is reported as demonstrating similar findings.
The appellant’s recent medical history includes similar symptoms in his left thumb which brought him to suspension arthroplasty under Dr Jansen on 29 January 2013. It must be inferred that he has bilateral osteoarthritis of the thumbs.
The law in respect of the application of s 323 has been continuously refined by a flow of cases from the Supreme Court. A number of these cases were considered in Pereira v Siemens Ltd [2015] NSWSC 1133 (21 August 2015), where Garling J stated at [81]:
“The assessment required by s 323 is one which must be based on fact, not assumptions or hypotheses: Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liq)[2013] NSWSC 365 at [89]; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [33] ; Ryder v Sundance Bakehouse [2015] NSWSC 526 at [40].
82.The process encompassed by s 323 requires the application of each of the following steps before reaching the ultimate conclusion of the existence of a pre-existing injury which has an impact on the assessment of the injury the subject of the worker’s claim.
83.The first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act: see Elcheikh at [125].
84.The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38]; Elcheikh at [126].
85.The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase “pre-existing condition or abnormality” is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629.
86.A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
87.The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
88.It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].
89.Next in dealing with the application of s 323, the extent of the contribution, if any, of the pre-existing condition to the current impairment must be assessed in order to fix the deductible proportion. If the extent of the deductible proportion will be difficult or costly to determine, an assumption is made that the deductible proportion will be fixed at 10%, unless that is at odds with the available evidence: s 323(2) of the 1998 Act.”
In the MAC, the MA noted the radiological evidence which was available to him on assessment. In his reasons, he said this:
“I believe that he has first CMC joint OA aggravation from the motor vehicle accident. He has pre-existing 0A changes confirmed by x-ray done six months before this motor vehicle accident and the repeat x-ray showing deterioration.”
Subsequently, he stated:
“In relation to the thumb I believe there should be a contribution from pre-existing factor as the x-ray done six months before already showed obvious degenerative changes.
I think a ½ deduction is appropriate.”Then, in dealing with the views of the other medical practitioners, the MA said this:
“I agree with Professor Cumming in deducting ½ because there is definite evidence of pre-existing conditions and he also had the other hand operated on for the same reason previously.”
And:
“I cannot agree with Dr Guirgis we probably came up to similar assessment in relation to the thumb but that he only deducted 1/10 for pre-existing condition which I cannot agree because of the reasons that I have explained.”
Not only is there ample evidence of a very significant pre-existing osteoarthritis in the appellant’s right thumb prior to the injury, but it is evident from the above that the MA considered the circumstances of the accident and reached an opinion as to the respective contribution to impairment of the right thumb made by the injury and the pre-existing condition. In the opinion of the panel, the MA has clearly demonstrated the path by which he reached his opinion in accordance with the instruction of the High Court in Kocak.
It is true that Dr Guirgis expressed the opinion the appellant suffered from “age appropriate” degenerative changes in his right thumb before the injury. The MA did not agree with that opinion. It is inconsistent with the radiological evidence and the appellant’s history. The panel notes that Professor Cumming stated that the condition of the appellants thumb would have become “symptomatic and required surgery about this time in his life whether or not he had ½this injury”. Obviously, the MA reached a similar conclusion.
In the opinion of the panel, that conclusion was open to him. Indeed, on the basis of the radiological evidence it is difficult to reach any other conclusion. The appellant has not established that the MA was in error in making a deduction of ½ for a pre-existing condition of the appellants right thumb in accordance with s 323 of the 1998 Act.
It is obvious from his calculations that the MA has only made a deduction for a pre-existing condition of the thumb and not in respect of appellant’s shoulder or sensory loss. While he has accurately recorded his findings in relation to UEI of the appellants right upper extremity in the body of the MAC, he has made an error in transposing these findings to the medical assessment certificate. The reference in the certificate to 18% WPI is incorrect.
The MA found 16% UEI in respect of thumb. He then made a ½ deduction pursuant to s323 (1) for the pre-existing osteoarthritis giving a final figure of 8% UEI for the thumb. Combining this with the 7% in respect of the shoulder and 1% for sensory loss on the combined value chart gives a total of 15% UEI which equates with 9% WPI. To that, of course, must be added 1% WPI in respect of scarring which was not challenged on this appeal, giving a final total of 10% WPI. While the error made by the MA does not alter the final certification it is necessary to issue a new MAC.
For these reasons, the appeal panel has determined that the MAC issued on 20 May 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 Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Ho 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) |
| 1. Right Upper Limb Shoulder and Thumb | 20 May 2015 | Figure 16-40, 43,46 Table 16-8a, 16-8b, 16-27, 16-15, 16-10 | 9% WPI | A ½ deduction for the right thumb has been made as indicated in the body of the SOR | 9% WPI | |
| 2. Scarring | 20 May 2015 | TEMSKI | 1% WPI | |||
| Total % WPI (the Combined Table values of all sub-totals) | 10% WPI | |||||
Paul Sweeney
Member
Roger Pillemer
Medical Assessor
Gregory McGroder
Medical Assessor
17 March 2021
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11
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