Gagnuss v Mikcon Group Australia Pty Ltd
[2021] NSWPICMP 74
•19 May 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gagnuss v Mikcon Group Australia Pty Ltd [2021] NSWPICMP 74 |
| APPELLANT: | Kyle Gagnuss |
| RESPONDENT: | Mikcon Group Australia Pty Ltd |
| APPEAL PANEL: | Member John Wynyard Dr James Bodel Dr Mark Burns |
| DATE OF DECISION: | 19 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of 9% WPI for injury to left knee and scarring; error alleged in not following 3% assessment by medico-legal expert; failure to apply TEMSKI properly alleged; error further alleged by failure to use a particular method of assessment (gait derangement); further error in not taking highest alternative calculation available; Held- 2% for scarring the highest assessment available under TEMSKI, as common ground that scar was not adhesive; Gait derangement excluded by Chapter 10.3 of the Guides; Medical Assessor erred in that highest alternative not taken; conceded by respondent: MAC revoked and 10% WPI certified. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 January 2021 Kyle Gagnuss, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 6 January 2021.
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 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 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 18 November 2020 an amended referral was made by the delegate to the MA seeking an assessment of WPI caused by injury to the left lower extremity (knee) and scarring (TEMSKI) on 26 June 2018.
Mr Gagnuss was employed as a labourer and on that date his left knee was crushed whilst he was working in a five metre deep trench by a heavy pipe.
Investigations show that there was an essentially undisplaced medial femur condyle fracture, (called a Hoffa fracture) which is a coronal split from the posterior superiorly to anterior inferiorly extending down to the joint line. He came to surgery on 11 July 2018 with two screws fixation with the screws buried inside the bone.
Mr Gagnuss continued to have problems with his left knee and his specialist Dr Paul Jarman recommended further surgery in 2020, which Mr Gagnuss declined in view of the disappointing results of the first surgery.
The MA awarded 7% for the injury to the left knee and 2% for scarring, yielding a total 9% WPI.
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 appellant requested a re-examination by a MA who was a member of the Appeal Panel but as no substantive error has been found, such a re-examination is not necessary.
EVIDENCE
Documentary 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.
Medical Assessment Certificate
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 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 appellant challenged the assessment regarding the scarring, alleging incorrect application or complete omission by the MA of the prescribed criteria set out in Table 14.1 of the Guides for the Evaluation of Minor Skin Impairment (TEMSKI).
The appellant also alleged that the MA had made a demonstrable error in failing to identify any reason for declining to use the gait derangement method when assessing the lower extremity.
Further demonstrable error was alleged because the MA, whilst stating that he had to take the highest assessment, nonetheless took the second highest.
It was further alleged that there was a lack of evidence to support the finding by the MA that the scar “looks very good…. is reasonable length but is not obvious.”
The MAC
In his findings on physical examination the MA noted obvious thigh wasting on the left side and a fixed flexion contracture. The MA found the left thigh to be a least 2 cm smaller than the right thigh at 10 cm above the patella. In the calf, he measured .5 cm wasting on the left side compared to the right. The range of movement on the left was from 10 to 125° whereas on the right it was from 0 to 140°.
With regard to Mr Gagnuss’ scar, the MA said[1]:
“There is a midline scar in the front of the left knee, 22cm long. Scar is not obvious and not sensitive to touch. It is well matured and not tethering to any underlying structures. …..”
[1] Appeal papers page 41.
In explaining his calculations, the MA considered three separate methods of assessment. In applying Table 17-6 of AMA 5 the thigh wasting measured would yield a 3% WPI. Using the range of motion method set out by 17-10, an 8% WPI would be available. Using Table 17-33 a diagnostic based estimate, an undisplaced condylar fracture in the femur was 2%. A combined mild MCL and ACL laxity based on Chapter 3.26 of the Guides would result in 5%. The two together will give rise to 7%, that is to say, the diagnostic based estimate and the MCL and ACL laxity.
The MA said:[2]
“All these three assessments module cannot be combined so I have to take the highest one which will be based on the diagnostic base estimate, which is 7%. On top of that, based on TEMSKI scale, I think the scar looks very good. It is reasonable length but it is not obvious. No pain on touching, fully mature. I will assess it as 2%. Altogether, that will be 9%.”
[2] Appeal papers page 43.
The MA noted the opinion of Dr Charles New, who on 23 June 2020, assessed 20% WPI. Dr New relied on Table 17.5 of AMA 5 as the basis for that assessment, and did not refer to any criteria set out by the Guides.[3] The MA said:
“We try not to use gait derangement for assessment if we can find some other modules better to assess the permanent impairment…”
[3] Appeal papers page 57.
With regard to the scarring the MA said:
“I certainly cannot agree with Dr Charles New of the scarring being 3% …. because despite the length of the scar, it has been very well healed and matured, not causing any obvious problem that can generate a 3% whole person impairment.”
Submissions
The appellant referred to the opinion of Dr New regarding the scarring, noting that on examination Dr New found:
· The patient is conscious of the scar over his leg.
· It is easily identifiable as a significant scar and there are pigmentary changes during the summer and with sunburn.
· The claimant is easily able to locate the scars.
· The claimant states that he can feel that it is raised.
· The anatomic location of the scar makes it visible with the usual style of clothing.
· The contour defect is easily visible.
· There is minor limitation in the performance of his ADLs as a result of the scar.
· No treatment is required.
The appellant submitted when the TEMSKI table was compared to Dr New’s reasoning for his assessment, it was evident that the correct criteria had been applied by Dr New. The appellant kindly reproduced the TEMSKI table (with one relevant omission, as will be seen). We were referred to Chapter 14.8 of the Guides with regard to the approach to be taken to assessments under Table 14.1. It was submitted that the MA had not referred to the criteria set out within the table, but simply made the observation which we have referred to above and then “arbitrarily” assessed 2%.
As to demonstrable error we were referred to Betty Reys v Oppenheimer Pty Ltd[4] and the uncontroversial statement that essentially it was an error “for which there was no information or material to support the finding made - rather than a difference of opinion.”
[4] [2019] NSWWCCMA 44.
The demonstrable errors were alleged to be in the failure by the MA to refer to any authority in his decision not to use the gait derangement method when assessing the lower extremity. It was alleged that he had failed to identify how or why the other methods that he identified were more appropriate. It was submitted that there was therefore no information or material to support the finding he made which, as we understood the submission, was a claim that the MA had failed to give adequate reasons for that statement.
Mr Gagnuss also pointed to an error that was conceded by the respondent, that in fact the highest assessment was not 7% but rather the 8% the MA had identified pursuant to Table 17-10 of AMA 5.
As to the presence of a demonstrable error, the appellant also essentially repeated his submissions regarding the failure by the MA to apply incorrect criteria to accept a 3% WPI, as found by Dr New in relation to the scarring.
Respondent’s submissions
With regard to the criticisms made by the appellant as to the MA’s finding regarding the scarring, the respondent pointed out that the MA had in fact referred to the TEMSKI scale. We were referred to Chapter 14.9 of the Guides which provides that the assessor should use medical judgment to determine the exact impairment value. It was submitted by the respondent that the MA had the benefit of assessing the appellant in person and could make an informed decision according to his medical findings. Moreover, the MA had explained his reasoning for not assessing the assessment of Dr New.
With regard to the appellant’s submissions regarding demonstrable error, the respondent referred to Chapter 3.10 of the Guides as all the authority that was needed to support the MA’s decision not to use the gait derangement method.
We were referred also to Chapter 1.9 of the Guides.
The respondent conceded the mathematical error made by the MA that 8% WPI was highest assessment, and not the 7% found by the MA.
DISCUSSION
As indicated, the appellant kindly supplied the TEMSKI scale, with one crucial omission. The criteria “Adherence to underlying structures” was not reproduced, and it explains the assessment. If there is no adherence, or “tethering” as the MA described it, there can be no assessment over the 2% that was ascribed. In order to obtain any higher assessment the table requires the criterion of “some adherence” to the underlying structures be established. The MA specifically found that there was no tethering to underlying structures. This ground is rejected.
Similarly, the Guides provide the answer to Mr Gagnuss’ complaint that the MA had not used the gait derangement method to assess his range of motion. The Guides refer to the principle that the highest assessment should be chosen by an MA when a range of methods are open for calculation of WPI. However, gait derangement is expressly excluded. Chapter 1.9. provides:
“1.9 The Guidelines may specify more than one method that assessors can use to establish the degree of a claimant’s permanent impairment. In that case, assessors should use the method that yields the highest degree of permanent impairment. (This does not apply to gait derangement – see paragraphs 3.5 and 3.10 in the Guidelines).”
Chapter 3.5 and Chapter 3.10 provide:
“3.5 In the assessment process, the evaluation giving the highest impairment rating is selected. That may be a combined impairment in some cases, in accordance with the AMA5 Table 17-2 ‘Guide to the appropriate combination of evaluation methods’, using the Combined Values Chart on pp 604–06 of AMA5.”
“3.10 Assessment of gait derangement is only to be used as a method of last resort. Methods of impairment assessment most fitting the nature of the disorder should always be used in preference. If gait derangement (AMA5 Section 17.2c, p 529) is used, it cannot be combined with any other evaluation in the lower extremity section of AMA5.”
The MA explained that there were other methods of evaluation open, and his view was that there was no reason to use gait derangement. He has acted in accordance with the Guidelines and no error has accordingly been demonstrated.
We note the proper concession that the AMS did not rely on the highest of the methods he used to calculate WPI. This error is not a substantive one, but caused by inadvertence by the MA. We therefore revoke the MAC to reflect the 8% WPI assessed for the range of motion method assessed by the MA as being the highest of the three alternatives he found.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 January 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 Yiu-Key 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) |
| Left lower extremity (knee) | 26 June 2018 | Chapter 1.9, 3,10 | NA | 8% | Nil | 8% |
| Scarring (TEMSKI) | 26 June 2018 | Table 14.1 Chapter 14 | NA | 2% | Nil | 2% |
| Total % WPI (the Combined Table values of all sub-totals) | 10% | |||||
John Wynyard
Member
Dr James Bodel
Medical Assessor
Dr Mark Burns
Medical Assessor
19 May 2021
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