Gardener v Cochran
[2022] NSWPICMP 454
•11 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gardener v Cochran [2022] NSWPICMP 454 |
| APPELLANT: | Tania Gardener |
| RESPONDENT: | Glenn Peter Cochran |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Paul Curtin |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 11 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Worker alleges two errors in the Medical Assessor (MA) misquoting Independent Medical Examiner’s (IME) assessment of whole person impairment (WPI) of right leg and his failure to provide reasons why he rejected IME’s opinion; De Gelder v Roger followed; and failure to make enquiries as to the impact of scarring on her activities of daily living (ADLs) or give adequate reasons for his findings; Held – while the MA misquoted the IME’s assessment of WPI, the actual path by which he determined WPI was transparent; he was not required to comment on the correctness of other opinions; Wingfoot Australia Partners Pty Ltd v Kocak followed; the MA determined that the scarring had no impact on ADLs; there was no evidence to the contrary and this conclusion was open to him; it was unnecessary to give more extensive reasons; the MA also gave sufficient reasons as to why 4% WPI was the “best fit” for the worker’s scarring; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 June 2022 Tania Gardener (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 6 May 2022.
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 grounds of appeal on which the appeal is made.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 PIC Rules.
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 was formerly employed by Glenn Peter Cochran (the respondent) as a cleaner. On 24 April 2018, in the course of that work, she fell from a ladder and suffered serious injury to her right knee and left wrist. While the appellant’s left wrist was managed conservatively, she came to internal fixation of the fracture of the proximal tibia of the right knee.
While ambulating with a walking frame following surgery, the appellant fell and suffered a fracture of the left femoral shaft which required surgical stabilisation using a locked intra-medullary nail. The fall may also have affected the union of the fracture in her right knee as, subsequently, she underwent several further operative procedures, including a revision of the internal fixation of the right knee
The appellant has not made a full recovery from her injuries. She has been unable to return to work. She experiences constant aching of her right knee which interferes with her ability to walk.
On 16 February 2021, the appellant saw Dr Graeme Doig, an orthopaedic surgeon, at the request of her solicitor. Dr Doig diagnosed a healed undisplaced fracture of the distal radius of the left wrist. In respect of the lower limbs, he diagnosed the following:
“a complex, proximal tibial-plateau fracture with an extension in the diaphysis of the tibia, necessitating multiple procedures, with the complication of a fall just over 1 month later, resulting in a closed fracture of the left femoral shaft, necessitating intra-medullary locked nailing and displacement of the previous fixed tibial fracture with soft-tissue and wound problems.”
Dr Doig assessed the appellant as suffering 52% lower extremity impairment (LEI) as a result of the fracture of her right leg. This converted to 21% whole person impairment (WPI). The assessment was made up as follows:
· 8% LEI as a result of 2cms of leg-length discrepancy;
· 7% LEI in respect of restricted ankle extension of less than 10%;
· 25% UEI reflecting moderate severity impairment of the tibial plateau fracture with involvement of the articular cartilage and malalignment on goniometer assessment,
· 25% UEI reflecting a moderate combined cruciate and collateral laxity impairment.
Dr Doig pointed out that he did not have long X-rays or a CT scan agreement to accurately assess mall alignment and League-length discrepancy.
In respect of scarring, Dr Doig noted that the appellant had multiple scars. He said:
“using the TEMSKI Classification of Scarring I am able [sic] to provide more than a maximum of 5% Permanent Impairment of the Whole Person within the NSW jurisdiction”.
He recommended that the appellant be reviewed by a plastic surgeon as the “scarring is quite significant and may justify further impairment”.
Dr Howard de Torres, a plastic and reconstructive surgeon, provided a report to the appellant’s solicitors on 3 May 2021. He examined the appellant’s scarring and recorded the following:
· an 11 x 1.5cm-diameter indented scars from the use of fixateurs;
· anterior vertical scar, 19cm x 2cm, indented and discoloured, on the anterior surface of the right shin;
· a scar medial to this, 19cm x 1.5cm, associated with muscle flap and swelling;
· a severe contour deformity due to transposition of a gastrocnemius flap;
· a scar on the right hip 5cm long and attached to underlying tissue which is a surgical donor site.
· a surgical scar on the left wrist, 6cm x 0.2cm, and
· a scar on the left hip secondary to a donor site, 4cm x 0.8cm, which is also indented.
Dr de Torres expressed the opinion that utilising Table 8-2 of AMA 5 the appellant “satisfies the criteria to place her at the high end of Class 2 resulting in 20% WPI”.
Dr Michael McGlynn, a plastic surgeon, saw the appellant at the request of the respondent’s solicitor and provided a report dated 30 November 2021. He recorded the following scarring:
“Left upper extremity
· On the anterior aspect of the left distal forearm a longitudinal surgical scar, 48mm x 1mm, hypo-pigmented with some colour contrast, flat with no trophic features, no visible stitch marks, and no adherence.
Right lower extremity
· On the right hip an oblique surgical scar, 60mm x 2mm.
· Right upper shin, a curved longitudinal scar from knee to mid lower leg, 170mm x 2mm to 10mm.
· A longitudinal scar from right knee to mid lower leg, 100mm x 2mm to 10mm.
· A visible soft tissue bulge due to a transposed muscle flap being visible contour defect on the upper half of the right leg.
· Longitudinal scar from mid lower right leg to near the ankle, 90mm x 2mm.
· 9 small scars at sites external to fixation pins used for temporary fracture fixation.
· Partial loss of sensation with reduced sensibility on the right lower leg anterior and lateral aspects in the distribution of the saphenous nerve.
Left lower limb
· A longitudinal scar on the left hip 35mm x 2mm.
· A longitudinal scar on the left upper thigh 20mm x 2mm.
· On the left lateral thigh near the near a longitudinal scar 20mm x 2mm.”
Dr McGlynn also utilised AMA 5 Table 8-2 to classify the appellant’s skin impairment. He said this:
“The scarring seen at this assessment and caused by the work accident is class 1 as there is skin disorder signs and symptoms present, and there is limitation in performance of a few ADL and no or intermittent treatment is required. The ADL affected by her scarring are social & recreational activities and possibly sensory function. The only treatment is daily application of moisturiser.”
As the appellant fell within class 1 skin disorders on Table 8-2, Dr McGlynn turned to the TEMSKI Table in ch 14 of the Guidelines. He stated:
“Tania Gardener is conscious of the scarring, there is easily identifiable colour contrast with the surrounding skin; she is able to easily locate the scars; there are minimal trophic changes; visible contour defects; there is a minor limitation or a few ADL; no or intermittent treatment is required; there is some scar adherence. These scar criteria are scattered across the TEMSKI scale.
Seven of ten criteria fit the 3-4% WPI TEMSKI zone. Five of ten fit the 5-9% WPI zone and four fit the 2% WPI zone and two criteria in the 0.1% WPI zones.
In my opinion the best fit is 4% WPI due to the scarring.”
Dr McGlynn noted that Dr de Torres had assessed 20% WPI for scarring. He stated:
“Dr de Torres does not give reasons why he finds the scarring fits class 2 skin disorder with impairment range of 10-24% WPI. To satisfy this classification the scars must have signs and symptoms present, limitation in the performance of some activities of daily living and require intermittent to constant treatment. I am unable to see in the body of his report that these issues have been addressed and the scarring fits class 2.”
Dr Gothelf, an orthopaedic surgeon, saw the appellant at the request of the respondent on 7 January 2022. He recorded a consistent history of injury and treatment. He found no measurable impairment of the left lower extremity and 2% impairment of the left upper extremity. In respect of the right lower extremity he recorded the following:
· 5 degree varus alignment of the right knee;
· 20% LEI in accordance with Table 17-10;
· a mildly displaced and comminuted and angulated fracture of the tibial plateau gave rise to 25% LEI in accordance with Table 3.2, and
· saphenous nerve involvement giving rise to a 1.2% LEI.
This gave rise to a right lower extremity impairment of 10% WPI.
Dr Gothelf made the following relevant comments on the findings of Dr Doig:
· He did not find leg length discrepancy on examination.
· He did not find a loss of ankle motion.
· His examination of the knee was stable without cruciate and collateral laxity.
He also noted the difference in assessment of the skin which he assessed in accordance with Table 14 of the Guidelines. He considered a best fit of 3% WPI was “reasonable”.
By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987. The substantial difference of opinion as to WPI between Dr Doig and Dr de Torres in the appellant’s case and Dr McGlynn and Dr Gothelf in the respondent’s case gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the matter to an MA to assess the dispute. It is from Dr Anderson’s assessment that the appellant brings this appeal.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that the appellant sought a further examination by a specialist member of the panel. However, as the panel was unable to find the application of incorrect criteria or a demonstrable error in the MAC it is inappropriate, for reasons which are discussed further below, to re-examine the appellant.
EVIDENCE
The appeal panel has before it all the documents which were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
The MAC
The parts of the medical certificate given by the MA which are relevant to the appeal are set out 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.
Under the heading “Demonstrable Error” the appellant argued that the MA failed to consider and/or give adequate reasons for his determination that the appellant’s scarring should be assessed at 4%WPI. The appellant criticised the finding of the MA that:
“There is no significant effect on the activities of daily living”.
She asserted that it was not clear from this statement that the MA “made any enquiries” concerning her activities of daily living (ADLs), “particularly in relation to social activities”. Further, the history recorded in the MAC did not establish that the MA “took appropriate note of the appellant’s reported reduction in activities of daily living contained in the statement”. He failed to “explain adequately or at all how he arrived at his conclusion”.
Under the heading “Incorrect Criteria”, the appellant raised a number of related issues. First, she reiterates that the MAC did not demonstrate that the MA gave “proper consideration to how” scarring affected her activities of daily living.
Secondly, by reason of Ch14.7 of the Guidelines the assessment of scarring ought to have been dealt with by a skin specialist.
Thirdly, the MA did not give an “adequate explanation as to how the best fit was 3-4% WPI pursuant to Table 14.1”. The appellant attaches photographs to her scarring. She argues that these illustrate scars which are purple in colour, producing a “distinct colour contrast”. This would place the appellant in the 5-9% WPI category as opposed to the 1-4% category on the table. The appellant continues:
“Further, pursuant to Table 14.1 the applicant’s scarring is usually and clearly visible with her usual clothing/hairstyle”.
A further example of the MA’s failure to grapple with the requirements of ch 14.8 of the Guidelines was his failure to acknowledge that the appellant’s scars were visible “unless she is wearing long pants”. Thus, there is a “limitation in dressing” which would also place the appellant in the higher category.
Fourthly, in respect of her right lower extremity, the appellant submitted that the MA had misquoted Dr Doig’s assessment of WPI recording that it was 10%, rather than 21%. This was a de Gelder v Roger (No. 2)[1] error in that the MA had failed to take relevant material into account. The appellant continued that if the MA rejected the report of Dr Doig:
“he should have articulated why pursuant to de Gelder. Instead, he agreed with Dr Doig’s opinion which he misinterpreted as yielding 10% whole person impairment in relation to the right lower limb.”
[1] [2014] NSWSC 1355 (de Gelder).
The respondent submitted that the contents of the MAC demonstrated that the MA “clearly considered the impact on the Appellant’s activities of daily living by confirming there were no significant effect on same.” It submitted that no further reasoning or explanation was required.
Further, the MA’s findings were consistent with an assessment of 3-4% WPI. Contrary to the appellant’s contention that the MA had not considered her evidence, he had in fact noted that the statement was “particularly relevant”.
Dealing with the matters raised under “Incorrect criteria”, the respondent argued that there was no evidence to support an assessment that the appellant fell within the 5-9% WPI category for scarring. The explanation offered by the MA in the MAC clearly “outlines how and why the appellant falls within the 3-4% WPI category pursuant to Table 14.1 of the Guidelines”.
In respect of Ch14.7 of the Guidelines, the respondent submitted that:
“If Dr Anderson was of the opinion that a class 1 assessment of scarring was inappropriate or insufficient, it was open for him to raise this in the medical assessment certificate”.
In respect of the “misinterpretation of Dr Doig’s report”, the respondent argued that the MA had clearly considered the report as he noted that it was also “particularly relevant”. It conceded, however, that the MA was in error in recording that Dr Doig’s assessment of the right lower limb WPI was 10%.
The respondent submitted that although the findings of the MA differed from that of Dr Doig. However, it argued that all:
“Given the information outlining his method of assessment it is not necessary for him to provide additional comment on the differences between the assessments. The respondent submits that it is clear what was decided and why, and additional reasoning is not required and would not affect the outcome of his assessment.”
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 Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 Ltd v Kochak (2013] 252 CLR 80 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 Wingfoot 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 Wingfoot 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).
In the MAC, the MA recorded the following in respect of the appellant’s right leg:
“She walked very cautiously, although without a discernible limp. She was able to take a few paces on her heels and toes and made a very brave effort at squatting.
The legs were equivalent in length. The right thigh and calf were each 1cm less in circumference than the left.
There was mild varus angulation of the right knee. Nevertheless she had full extension at 0° and could flex through to 130°. On the left side there was also full extension, and she could flex through to 140°. No significant features were identified with the hips or the ankles.” (Our Italics)
In respect of the appellant’s scarring, the MA recorded the following:
“The most obvious feature was the extensive scarring of her right leg below the knee. There were three major longitudinal scars. Two were easily visible anteriorly, one each to the medial and lateral sides of the tibia. Posteriorly there was a further longitudinal scar. They were also small, almost punctuate scars due to internal fixation. Some of these were depressed and seemed to cause her more concern than the longitudinal scars.
Sensation to pinprick was grossly reduced over the anterior of the right lower leg effectively between the two longitudinal scars. This was identified to be in the distribution of the saphenous nerve.”
The MA calculated impairment of the right lower extremity as follows:
“Three clinical features have been identified which result in impairment. Although she has a fairly good range of movement with full extension and flexion through to 130°, there is also a mild varus angulation.
A further impairment exists with the original state of the comminution of the fracture site which was considered to be moderate in scale of mild, through moderate to severe.
Due to the quite dense alteration of sensation of the anterior of the right lower leg in the distribution of the saphenous nerve, there is yet further impairment.
Range of Movement. From Page 537, Table 17-10, the mild varus angulation would result in 20% lower extremity impairment
Tibial plateau fracture. This is addressed in the SIRA Guidelines Page 18, Table 3.2. with moderate comminution, there is provision for 25% lower extremity impairment.
Saphenous Nerve. This is addressed in AMA 5 Page 551, Figure 17-08 where this nerve is anatomically identified. From Page 552, Table 17-37 there is in fact no specific identification of the saphenous nerve for impairment. Therefore, in accordance with the SIRA Guidelines Para 1.23 an analogous condition is identified. This is either the superficial or common peroneal nerve, each of which carries a maximum of 5% LEI for sensory dysfunction. This, in turn, is modified by Table 16-10 on Page 482. Grade III is identified with 60% of the maximum. This results in a neurological impairment of 3% lower extremity impairment.
In the appropriate combination Table 17-02 on Page 526, is it possible to combine neurological dysfunction with range of movement or with DBE impairments. DBE impairment cannot be combined with range of movement. The combination which therefore gives the greatest impairment is the neurological dysfunction with the tibial plateau comminution. This is therefore a combination of 25% and 3% LEI, which gives 27% LEI. From Page 527, Table 17-03 this results in 11% WPI”.
Right lower extremity
There are two substantial criticisms of the MA’s assessment of the appellant’s right lower extremity. First, he incorrectly recorded Dr Doig’s impairment assessment of that limb. Secondly, he failed to articulate why he agreed or disagreed with that assessment of impairment.
There is no doubt that the MA read the report of Dr Doig dated 16 February 2021 as he refers to it specifically in paragraph 2 of the MAC. In the opinion of the panel, the MA’s reference to the report assessing 10% WPI is a clerical error. It does not invalidate the MA’s findings on examination or his assessment of WPI. While there are significant differences between the findings on examination of the MA and Dr Doig, the MA’s reasons for his findings and his assessment are clearly set out in the MAC. It is not suggested by the appellant that these findings or the methodology employed to assess WPI were wrong. In particular, it is not suggested that his assessment was not compliant with Ch 17 of AMA 5 or the relevant parts of the Guidelines
Whereas Dr Doig found leg length discrepancy, the MA found the appellant’s legs were equal in length. Whereas Dr Doig found restriction in movement of the right ankle, the MA found no “significant features” in the ankles. Whereas Dr Doig found significant fand collateral ligament laxity, the MA made no such finding.
The MA’s findings in each case, are similar to those of Dr Gothelf, an orthopaedic surgeon, who provided a report of 7 January 2002. As recorded above, Dr Gothelf specifically commented that he did not find leg length discrepancy, cruciate or collateral ligament instability, or restriction of right ankle movement. In those circumstances, it is plausible that the findings of Dr Doig are outmoded. They were recorded some 15 months prior to the MAC. They do not provide a basis to impugn the MAC.
The second criticism of the findings in respect of the right lower extremity is that the MA did not articulate his reasons for disagreeing with Dr Doig. While these can be readily inferred from the MAC, it is unnecessary for the MA to state why he disagrees with the opinion of another medical practitioner. In the passage from Wingfoot quoted above the High Court stated that it was not the function of an MA to comment on the correctness of other medical opinions or choose between competing arguments. If de Gelder is inconsistent with this reasoning, it must give way.
As the reasons by which the MA has reached his determination in respect of the right lower extremity are readily apparent from the MAC, the panel is unable to find error in respect of that assessment.
Scarring
As the respondent did not specifically object to the tender of photographs of the appellant’s scarring as fresh evidence, the panel concluded that it is in the interests of justice to admit the photographs into evidence. The photographs were of a sufficiently good quality to assist in a determination of the dispute in relation to scarring. A consideration of the photographs by the panel, which included a specialist plastic and reconstructive surgeon, did not suggest that there was error in the description of the scarring in the MAC.
Importantly, the panel concluded that they did not demonstrate, contrary to the appellant’s submission, “distinct colour contrast” of the scars with the surrounding skin and supported the view that exposure to physical agents were unlikely to increase limitation or restriction of the ADLs.
The MA described scarring in the following terms:
“The most obvious feature was the extensive scarring of her right leg below the knee. There were three major longitudinal scars. Two were easily visible anteriorly, one each to the medial and lateral sides of the tibia. Posteriorly there was a further longitudinal scar. There were also small, almost punctate scars due to external fixation. Some of these were depressed and seemed to cause her more concern than the longitudinal scars.”
The MA gave the following reasons for signing 4% WPI:
“This is addressed in the SIRA Guidelines Page 74, Table 14.1. The scarring is easily identified and is usually visible with normal clothing unless she is wearing long pants. She is very aware of the scarring. There is extensive contour defect. There is no significant effect on activities of daily living and no specific treatment is indicated (other than reasonable solar protection and moisturisation). There is adherence, particularly to the longitudinal scar just to the lateral side of the mid-line just underneath the knee joint. With these features, it is considered that she is towards the upper end of the TEMSKI Table and 4% WPI is selected as appropriate.”
The first criticism of the MA is that there is no adequate basis for his conclusion that scarring caused “no significant effect” on her ADLs or, alternatively, that the MA gave insufficient reasons for this conclusion. However, as the respondent submitted, it is clear that the MA enquired as to the effect of the scars on the appellant’s ADLs and recorded what he was told. Again, there is nothing to suggest that he was wrong in conclusion.
Dr McGlynn, a plastic surgeon, who provided a report on 30 November 2021, also recorded that there were “minor or a few” restrictions on the appellants ADLs. While the appellant refers repeatedly to her statement, a perusal of its contents by the panel did not reveal any information plainly inconsistent with the MA’s conclusion that scarring caused little or no interference with the appellants ADLs. While Dr Torres concluded that the appellant suffered 20% WPI, his history contains no basis for reaching that conclusion and no information that is inconsistent with the conclusions of the MA
It is true, as the appellant submits, that one of the criteria recorded by the MA is derived from the 5-9% category. The appellants scars are visible when she is not wearing long pants. On the assumption that the appellant would normally wear a dress these scars are usually and clearly visible when the appellant is wearing normal clothing. Similarly, there is one and possibly two criteria that readily fit into both the 5-9% and the 3-4% category. This is, of course, directly addressed by the respondent’s plastic surgeon in his report.
It was for the MA to determine which of the categories best fitted the appellant’s circumstances. He gave reasons why he preferred the 3-4% category. He also addressed to the other medical evidence. He said this:
“The scarring has been specifically addressed by two Plastic Surgeons, initially Dr Howard deTorres in his report of 03/05/21 and six months later by Dr Michael McGlynn in his report of 30/11/21. Dr Howard De Torres has a very high whole person impairment of 20% from Class II. With the greatest of respect, I would draw attention that in order to achieve this, there would need to be a significant dysfunction of her activities of daily living, which in fact does not exist. I am therefore in accord with the whole person impairment of 4% by Dr Michael McGlynn.”
In the opinion panel, it is not possible to find demonstrable error in the MAs reasoning or in his assignment of a category in complying with the “best fit” principle. As he pointed out his assignment of 4% WPI is consistent with that of Dr McGlynn. There is no compelling medical evidence to the contrary, as it is not possible to ascertain the basis of the opinion of
Dr de Torres. Chapter 14.9 of the guidelines requires the assessor in a case such as this to “use clinical judgement to determine the exact impairment value.”Finally, the appellant alleges error in referral of the matter to an occupational physician to assess impairment of her skin. But the assessors who are allocated scarring claims are familiar with the Guidelines. If the MA concluded that there was a likelihood of the appellant falling into the 5 to 9% category, he undoubtedly would have asked for the referral to be amended to include an examination by a skin specialist before issuing his MAC. In the opinion of the panel, it was open to the MA to assess 4% WPI in accordance with the Guidelines. In the circumstances of this case, incorrect criteria or demonstrable error has not been proven by the appellant.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 May 2022 should be confirmed.
0
5
0