Goulding v Reliable Conveyor Belt Pty Ltd
[2022] NSWPICMP 522
•19 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Goulding v Reliable Conveyor Belt Pty Ltd [2022] NSWPICMP 522 |
| APPELLANT: | Stuart Goulding |
| RESPONDENT: | Reliable Conveyor Belt Pty Ltd |
| Appeal Panel | |
| MEMBER: | Brett Batchelor |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 19 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION- Appeal by worker against a Medical Assessment Certificate (MAC) on the basis that the assessment was made on the basis of incorrect criteria and the MAC contains a demonstrable error; the appellant submitted that the Medical Assessor (MA) had made an incorrect assessment of scarring following surgery in his shoulders, in accordance with the TEMSKI scale, and failed to explain why he made his assessment; this ground of appeal rejected; the appellant also submitted that the MA had failed to explain a comment in the MAC by the MA that there had been slight improvement in the range of motion in the shoulders over the preceding 12 months, notwithstanding the inability of the appellant to obtain treatment because of COVID-19 restrictions; this was submitted to be a demonstrable error; this ground of appeal rejected; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 September 2022 Stuart Goulding (the appellant/Mr Goulding) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns (the MA), a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 August 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 (the 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 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, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant worker commenced work with Reliable Conveyor Belt Pty Ltd (the respondent employer) on 11 November 2011 as a mechanical supervisor, largely carrying out work on site at coal mines and coal washeries. The job was extremely heavy, and Mr Goulding was required to work on mechanical repairs to conveyor belts.
The appellant first experienced pain and discomfort in his left shoulder in August 2017, as he attempted to feed a conveyor belt on a defective conveyor system back onto the appropriate tract between trough rollers and impact area skirts. Mr Goulding reported the incident to his supervisor, and kept working. He attended his general practitioner, Dr Arif Meeran, who referred him for an X-ray and ultrasound of the left shoulder. Notwithstanding conservative treatment in the form of cortisone and steroid injections, and physiotherapy, symptoms persisted. Dr Meeran referred the appellant to Dr Hardeep Salaria, orthopaedic surgeon, who organised an MRI scan of the shoulder and thereafter, on 15 January 2018, operated on the left shoulder. The surgery was an arthroscopic subacromial decompression and rotator cuff repair. That surgery was complicated by infection requiring hospitalisation for about 13 days.
The appellant subsequently came under the care of orthopaedic surgeon, Dr Jai Kumar, who carried out further arthroscopic surgery on the shoulder on 15 October 2018 in the form of capsular release, synovectomy, acromioplasty, revision of rotator cuff repair and biceps tenodesis. This was followed by conservative treatment. Mr Goulding continued to experience symptoms in his left shoulder. He was unable to return to his pre-injury duties, and began to experience symptoms in the right shoulder.
On 14 August 2019 Dr Kumar carried out a right shoulder rotator cuff repair with biceps tenodesis. Notwithstanding this surgery and further conservative treatment, the appellant continued to experience increasing symptoms and pain in the right shoulder. Dr Kumar operated again on the shoulder on 11 February 2020, in the form of an arthroscopy, and again on 7 March 2020, an arthroscopy. He has scarring from the surgery.
The appellant continues to suffer ongoing pain in both shoulders, which is aggravated if he tries to push, pull or lift anything, or use his arms overhead. He has restricted range of movement in both shoulders and significantly restricted in daily activities. He is unable to return to his pre-injury work, and has not returned to work since about May 2020.
PRELIMINARY REVIEW
The 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 not necessary for the worker to undergo a further medical examination because although the appellant did not originally seek such further medical examination, it was suggested in submissions in support of the appeal by his counsel as possibly appropriate. However the Panel considers that there is sufficient material in the Appeal Papers (AP) on which to base its decision.
EVIDENCE
Documentary evidence
The Panel has before it all the documents that were sent to the MA 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 MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Panel.
Appellant
Scarring
In summary, the appellant submits that there is a demonstrable error in the allocation by the MA of 1% only for the scarring which resulted from repeated surgical interventions. The appellant notes that between pages 4 and 5 of the MAC[1] there is a detailed account of the scarring that he has suffered. The appellant submits that this, on the face of the record, demonstrated the significant and not minor scarring. The appellant notes that the scarring on the left shoulder was made more visible because it cut through the tattoo. The MA also refers to colour contrast, although the appellant acknowledges that this is referred to as “slight.”
[1] AP pp 23-24 (noting that page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission).
The appellant draws attention to the description of the scarring on page 4 of the MAC, noting in respect of the longest scar on the left shoulder that it was 0.5 cm in width and that there was skin atrophy. The “highly visible contour defect” of this scar is referred to by the appellant, which was “quite noticeable”, and one of which Mr Goulding reported as being “very conscious”, and which had associated suture marks.
The appellant refers to cl 14.8 of the Guidelines in which it is submitted to mandate that if the skin disorder does not meet all of the criteria within the chosen category of impairment, the assessor must provide detailed reasons as to why this category has been chosen over other categories. The appellant submits that the MA has failed to provide these detailed reasons.
The appellant submits that on page 6 of the MAC the MA has provided a list of features of the scarring which would place the scarring in the category warranting an assessment 0f 2%, the appellant submits that it is at this point that the MA was required to provide reasoning for the choice of the lower category.
The appellant submits that, in accordance with what Hoeben J stated at [39] in Merza v Registrar of the Workers Compensation Commission (NSW)[2], the instrument by which the matter is referred to the MA is part of the record to be taken into account in determining whether there has or has not been a demonstrable error. This includes in this case, the report of Dr James Bodel dated 1 February 2021[3], and what he said on page 4 of that report in describing the scarring as “…moderately complex surgical scarring, particularly on the left shoulder.”
[2] [2006] NSWSC 939 (Merza).
[3] AP p 57.
The appellant submits that on both the observations by the MA and Dr Bodel, the criteria for assessment of the scarring as moderately complex surgical scarring appears. There was therefore an obligation on the part of the MA to provide reasoning for his allocation of 1% whole person impairment (WPI) for the scarring rather than the 2% that would properly reflect the extent of the complexity of the scarring which he, the MA, had observed.
The appellant submits that the failure to do so demonstrates error and in addition reveals that the assessment was made on the basis of incorrect criteria.
The appellant refers in detail to the matters listed at dot points on page 6 of the MAC which he submits would fit the table for the evaluation of minor skin impairment (TEMSKI) for the allocation of 2% WPI.
Assessment of shoulder impairment
The appellant submits that there is a further error on page 3 of the MAC under the heading of “Present symptoms”. While the MA recorded restrictions of shoulder movements on page 4 of the MAC, and while these differed from those recorded by Dr Bodel on page 4 of his report, the appellant submits that the differences did not provide a basis for the observation made by the MA on page 6 “I believe that Mr Goulding has improved slightly over the last 12 months.” The appellant notes that the MA himself observes that the difference between his findings and those of Dr Bodel was no less than “slight”.
The appellant submits that it was an error, and a demonstrable one within the meaning of Merza, for the MA to have failed to provide a basis for such belief, when the record itself reveals an account from Mr Goulding of an inability to obtain treatment because of the Covid restrictions and a consequent failure to obtain any improvement in his ability to use his arms.
Relief sought
The appellant submits that if the Panel is satisfied that one of both of the appeal grounds are made out, then pursuant to s 328(5) of the 1998 Act the Panel might revoke the MAC and issue a new MAC as to the matters concerned. Alternatively, the appellant submits that the Panel may wish to remit the matter to the MA with the additional information. Alternatively again, it may be considered appropriate that a re-examination of the appellant take place as contemplated by s 328(2A) of the 1998 Act.
Respondent
Scarring
In reply, the respondent refers to [14.8] and [14.9] of the Guidelines, and submits that the MA is afforded a discretion and is to rely on his or her own judgement to reach the most accurate assessment under the TEMSKI Table.
The respondent submits that the MA has provided his reasoning on page 6 of the MAC for finding that the “best fit” under the TEMSKI Table is 1% WPI. He lists features supporting that 1% WPI is (the) most appropriate assessment for scarring.
The respondent submits that the MA is entitled to draw his own conclusions in any manner he thinks fit provided he applies the appropriate criteria and does not make a demonstrable error (per Stramit Corporation Pty Ltd t/as Stramit Building Products v Holl[4]). The respondent submits that the MA has in this instance referred to the appropriate criteria, being the TEMSKI Table, and has not made a demonstrable error.
[4] [2009] NSWWCCMA 32.
Relying on what was said in Painter v Bi-Lo Pty Ltd[5], The respondent submits that the assessment of a worker by an Approved Medical Specialist (AMS) is a matter for his expertise, and that his conclusions, his diagnosis, the accuracy of measurements taken, and the interpretation of findings on examination, are all matters within the domain of the AMS (now MA).
[5] [2009] NSWWCCMA 351.
For the foregoing reasons, the respondent submits that the MA has correctly assessed impairment with respect to scarring.
Assessment of shoulder impairment
The respondent notes that the appellant does not raise an issue as to the MA’s findings on examination, nor his assessment of WPI of the shoulders. In respect of the issue raised by the appellant with the comment by the MA on page 6 of the MAC that “I believe that Mr Goulding has improved slightly over the last 12 months”, the respondent notes the provision in s 327(2) of the 1998 Act of the matter that is appealable under that section. That matter is if it is one as to which the assessment of a MA certified in a MAC under Part 7 of the 1998 Act is conclusively presumed to be correct in proceedings before a court or the Commission.
Reference is then made to s 326 of the 1998 Act. The respondent submits that the extent to which the appellant has improved in the last 12 months is not a matter as to which the assessment is conclusively presumed to be correct. Therefore, the comment of the MA quoted in [32] above cannot form the basis of an appeal pursuant to s 327 of the 1998 Act.
The respondent submits that, as the assessment of Medical Assessor Burns was made on the basis of correct criteria and that he did not make a demonstrable error, the appeal should be dismissed and the MAC confirmed.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. Relevant case law includes Siddik v Workcover Authority of NSW[6] and NSW Police Force v Registrar[7].
[6] [2008] NSWCA 116.
[7] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[8] 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.
[8] [2006] NSWCA 284.
Scarring
Clauses [14.8] and [14.9] of the Guidelines are in the following terms:
“14.8 The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.
14.9 Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value.”
At [5] on pages 4-5 of the MAC (“FINDINGS ON PHYSICAL EXAMINATION”), the MA sets out the following description of scarring:
“Examination of the right shoulder revealed portal scars from previous arthroscopic surgery. There were 3 portal scars present, each of which was barely visible. Also, on the right side there was a 3cm scar over the anterolateral aspect of the shoulder, which had a slight contour defect to touch. Otherwise, it was also barely visible.
On the left side there were also a few portal scars from previous arthroscopic surgery, which were barely visible. Additionally, there was one scar, which was 3cms in length over the anterolateral aspect of the shoulder, which did have a slight colour contrast change from the surrounding skin. As it also cut through a tattoo this made it more visible.
The largest scar was 4cms in length over the anterior aspect of the left shoulder associated with the region where the original infection had occurred. The scar was up to 0.5cm wide with a degree of skin atrophy. There was also a lack of colour in the skin compared to the surrounding structure and there was a highly visible contour defect present. Again, it cut through a tattoo and was quite noticeable. He reported that he was very conscious of this scar and could easily localise it. I also noted some suture marks associated with the scar.”
At [10.b.] on page 6 of the MAC in giving an explanation of his calculations, the MA expresses his belief that the best fit of 1% WPI with respect to scarring under the TEMSKI Table 1 is because the appellant fulfils the following criteria:
(a) he is conscious of the scarring, especially on his left shoulder where he initially had an infected wound;
(b) there is some colour contrast between the skin and the scar especially over the left shoulder;
(c) the appellant is easily able to locate the scars especially the anterior one on the left shoulder;
(d) there are minimal trophic signs over the scar where he had his previous infection;
(e) suture marks are visible over the scar on the left shoulder;
(f) as the scars on the left shoulder cut through a large tattoo they are more visible and could be seen if he was not wearing a shirt;
(g) he does have a contour defect in the left shoulder, which is visible;
(h) his scarring does not affect his activities of daily living;
(i) he is having no treatment for his scars, and
(j) there is no adherence of any scars.
The MA notes thereafter the belief of Dr Bodel, the independent medical examiner engaged by the appellant, that Mr Goulding had suffered 2% WPI for scarring. The MA records his own belief that 1% is more appropriate. Dr Bodel’s comments in respect of scarring are found in his report dated 1 February 2021 in the following terms:
“He has healed scarring in the region of both shoulders with well healed scarring on the right hand side but some hypertrophic scarring and hypersensitivity, particularly in the mini open scar on the left hand side and the scar is somewhat broadened because of the infections. The scarring is not tethered to underlying deep structures but I would rate the scarring as moderately complex surgical scarring, particularly on the left shoulder.”[9]
…
“The only other rating is the scarring which I rate as a 2% Whole Person Impairment as moderately complex surgical scarring, particularly on the left hand side where there has been the repeated surgeries for infection.”[10]
[9] AP p 60.
[10] AP p 62.
The MA also disagrees with the assessment of Dr Powell, the independent medical examiner engaged by the respondent’s insurer, whose report dated 31 May 2021 contains the following comments in respect of his examination and assessment of scarring:
“There were a series of well healed surgical scars over both shoulders consistent with his operations without any complicating features.”[11]
…
“Scarring is considered with reference to TEMSKI, where the surgical scarring is consistent with the expected outcome of the procedure undertaken without any complicating features. Scarring is well disguised within the extensive bilateral tattooing and is thus considered Category I, with 0% whole person impairment.”[12]
[11] AP p 82.
[12] AP p 86.
In outlining his disagreement with the assessment of Dr Powell, Medical Assessor Burns says:
“With respect to scarring he found that there was no scarring, which would give an assessable impairment. I disagree with him due to the significant contour defect from the original scar on the left side, which is from the infected wound.”
The Panel observes that in the TEMSKI Table, there is no criterion in keeping with “moderately complex surgical scarring” as found by Dr Bodel. Scarring must be assessed in accordance with Table 14.1 of the Guidelines.
In considering the criteria set out by the MA, listed at [39] above, the Panel notes that only (c) (“the appellant is easily able to locate the scars especially the anterior one on the left shoulder”) and (g) (“he does have a contour defect in the left shoulder, which is visible”) would fall into the column of Table 14.1 indicating 2% WPI. Item (a) (“he is conscious of the scarring, especially on his left shoulder where he initially had an infected wound”) would justify either a 1% or 2% WPI assessment. Item (f) (“as the scars on the left shoulder cut through a large tattoo they are more visible and could be seen if he was not wearing a shirt”) could, in the view of the Panel, justify a 1% WPI or 2% WPI assessment. All of the other items, namely, (b), (d), (e), (h), (i) and (j) would quite clearly justify a 1% WPI assessment only.
The Panel notes that the MA, as does Dr Bodel, appears to base his assessment principally on the scarring to the left shoulder, in which an infection occurred following surgery.
The Panel also notes that a medical assessment of scarring is not a mathematical exercise, or one carried out in response to a formula, based on Table 14.1 of the Guidelines. These are of assistance only to the assessor in complying with cl 14.9 of the Guidelines, namely, using his or her clinical judgement to determine the exact impairment value.
The MAC must be read as a whole, and doing this the Panel does not accept the appellant’s submission that the MA has failed to provide reasoning for his allocation of 1% WPI for scarring rather than 2% WPI. Medical Assessor Burns had the benefit of a careful examination of Mr Goulding, has paid attention to the examinations and reports of both Dr Bodel and Dr Powell and provided his reasons for disagreement with their assessments, and sets out in detail his findings on examination of the scarring. He concludes that 1% WPI for scarring is the correct assessment, and the “best fit” in accordance with cl 14.9 of the Guidelines. The Panel cannot find fault with such assessment.
Assessment of shoulder impairment
The Panel does not accept the appellant’s submission that the MA was obliged to provide an explanation for the observation made by him on page 6 of the MAC that “I believe that Mr Goulding has improved slightly over the last 12 months.” The appellant submits that the differences found by Medical Assessor Burns between his measurement of shoulder movements and those found by Dr Bodel did not provide a basis for that comment. The Panel does not accept that it was a demonstrable error that the MA failed to provide a basis for his belief expressed in the comment. What the MA said was a simple observation. The Panel notes that the appellant does not take issue with the measurement of range of movement in the shoulders found by Medical Assessor Burns.
The Panel also notes that the inability to obtain treatment because of Covid restrictions and the consequent failure to obtain improvement, is not a consideration when assessing impairment.
The Panel also notes the submission of the respondent recorded at [32]-[33] above. Section 326 of the 1998 Act is as follows:
“326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned—
(a)the degree of permanent impairment of the worker as a result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)the nature and extent of loss of hearing suffered by a worker,
(d)whether impairment is permanent,
(e)whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
The Panel accepts that the extent to which the appellant has improved in the 12 months preceding the assessment by the MA is not a matter as to which the assessment of the MA certified in a MAC is conclusively presumed to be correct. Therefore, apart from providing a possible basis for the appellant’s submission that the MA should have provided an explanation for the comment as to improvement over the previous 12 months, which has not been accepted by the Panel, any belief of the MA in this regard cannot form the basis of an appeal pursuant to s 327 of the 1998 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 August 2022 should be confirmed.
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