Flack v Fencing & Gate Centre Pty Limited
[2021] NSWPICMP 47
•14 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Flack v Fencing & Gate Centre Pty Limited [2021] NSWPICMP 47 |
| APPELLANT: | David Flack |
| RESPONDENT: | Fencing & Gate Centre Pty Limited |
| APPEAL PANEL: | Member John Wynyard Dr Philippa Harvey-Sutton Dr Margaret Gibson |
| DATE OF DECISION: | 14 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of 14% WPI including 6% WPI to right ankle; error alleged and conceded that Medical Assessor (MA) erred in applying the combined value chart to his findings regarding the ankle; no appeal against measurements themselves, and respondent submission that a re-examination should be held to check the measurements rejected; Chapter 1.18 considered and respondent submission that alternative method of calculation in breach of the guideline rejected; Held- MAC revoked to correct agreed error and resultant 15% WPI MAC issued. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 November 2020 David Flack, the appellant, lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by
Dr Tommasino Mastroianni, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 26 October 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):
· 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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical 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 WorkCover Medical 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is a reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 1 October 2020 the delegate of the Registrar referred this matter to an AMS for assessment of WPI caused by injury to the right lower extremity (ankle), lumbar spine, and scarring (TEMSKI) which occurred on 2 May 2017.
Mr Flack had been employed as a Manager with the respondent and when he was opening up the factory on the injury date, he twisted his right ankle. Symptoms persisted and he consulted his regular GP who referred him to Dr Martin, Orthopaedic Specialist. Conservative treatment ensued including a cortisone injection but Mr Flack finally came to surgery on 14 March 2018 by way of arthroscopic surgery. The operation consisted of an arthroscopy on the right ankle, and debridement with many arthrotomy to complete the debridement. There was also right ankle brostom-style lateral ligament reconstruction.
Mr Flack was treated thereafter for pain management and a complex regional pain syndrome was diagnosed for which he had two lumbar sympathectomies. He also trialled a spinal cord stimulator. None of these modalities assisted him.
The AMS assessed a combined table value of 14%.
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.
The appellant did not seek a re-examination by a member of the Appeal Panel and as the demonstrable error made by the AMS was a simple arithmetical error, no re-examination was necessary.
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 which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 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 issue raised is quite fundamental. At paragraph 10a of the MAC the AMS assessed 14% right lower extremity impairment (LEI) due to the restricted ankle movement, and 4% LEI for restricted hindfoot movement.[1] The AMS said:
“The combined lower extremity impairment for ankle and hindfoot is 15%. This equates to 6% WPI.”
[1] Appeal papers page 20
The parties agree that the combined value chart in AMA5[2], when properly applied, shows that such LEI assessments should have yielded 7% WPI.
[2] At page 604.
The respondent was kind enough reproduce Chapter 1.18 of the Guides which provides:
“The Combined Values Chart in AMA5 (pp 604–06) is used to derive a percentage of whole person impairment (WPI) that arises from multiple impairments. An explanation of the chart’s use is found on pp 9–10 of AMA5. When combining more than two impairments, the assessor should commence with the highest impairment and combine with the next highest and so on.”
The respondent did not argue that such an error had not been made, but rather submitted that it was not possible to ascertain how any mathematical error occurred because the AMS had failed to provide his worksheets or to give a detailed explanation. This, it was argued, should result in a re-examination.
This submission may be dealt with shortly. The mathematical error has occurred because the AMS failed to calculate the combined value of his measurements. The appellant made it plain that the measurements themselves were not challenged, only the application of the Table. No appeal has been lodged against the accuracy of the measurements.
Alternatively, the respondent submitted that the Panel should apply the comments made in chapter 1.4 of AMA at pages 9 – 10. Chapter 1.4 is entitled “Philosophy and the use of the Combined Values Chart”. After discussing the reasons why the Combined Values Chart had been retained in AMA 5, the authors said:[3]
“In general, impairment ratings within the same region are combined before combining the regional impairment rating with that from another region.”
[3] AMA5 page 10.
The respondent did not quote any other part of that paragraph, but it is instructive to note that the example then given concerned where multiple impairments had been caused to an extremity by abnormal motion, neurologic loss and amputation of part of the extremity. Those impairments were to be combined to obtain a regional extremity impairment. That would then be combined with impairment from another region such as respiratory system.
This general comment was to be applied, it was argued, to the ankle and the scarring assessments, as they concerned the same body region. This was then to be combined with the assessment for the lumbar spine.
Thus, it was argued, accepting that the combined LEI should have resulted in a finding of 7% WPI, the general comment at page 10 authorised the AMS to then add the WPI for the scarring (2%), which would yield a WPI of 9%. The lumbar spine assessment of 6%, being another region, would then be combined to produce under the combined value chart a WPI of 14%.
Whilst the respondent’s submission is ingenious, it is not based on the method mandated by Chapter 1.18, which is unambiguous in its terms. The general comments relied on by the respondent have been misconceived. A body region, as described in the example pertains to a specific region of the body. Scarring can appear anywhere on the body, and because the scar is in the region of the left lower extremity, that does not make it an impairment rating within the same region. The regional extremity impairment spoke of different impairments assessable for the same extremity. They are assessed as lower or upper extremity impairments and Table 17.3 of AMA5 then converts them to WPI.[4] Once the WPI is calculated, the provisions of Chapter 1,18 apply, which, as indicated, require the largest figure to be combined with the next highest and so on. Thus 7% WPI for the left lower extremity combines with the 6% WPI for the lumbar spine (13%), which then combines with the 2% for scarring. The result is 15%.
[4] AMA5 page 527.
We note in passing that the Table 2 Certificate issued by the AMS contained another error, in that it certified 4% in the %WPI column, and yet certified 6% in the Sub-total column. Both figures were erroneous, and should be replaced by 7% for the above reasons.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 October 2020 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 Tommasino Mastroianni 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) |
| Lumbar spine | 2/05/17 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 6% | Nil | 6% |
| Right lower extremity (ankle) | 2/05/17 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 7% | Nil | 7% |
| Scarring (TEMSKI) | 2/05/17 | Chapter 14 Pages 73-74 | 2% | Nil | 2% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
John Wynyard
Member
Dr Philippa Harvey-Sutton
Medical Assessor
Dr Margaret Gibson
Medical Assessor
9 April 2021
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