Gurnett v ACFS Port Logistics Pty Ltd
[2022] NSWPICMP 423
•25 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gurnett v ACFS Port Logistics Pty Ltd [2022] NSWPICMP 423 |
| APPELLANT: | Alan Gurnett |
| RESPONDENT: | ACFS Port Logistics Pty Ltd |
| Appeal Panel | |
| MEMBER: | Brett Batchelor |
| MEDICAL ASSESSOR: | Dr Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| DATE OF DECISION: | 25 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal by worker on three grounds; 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; and the Medical Assessment Certificate (MAC) contained a demonstrable error; the worker claimed in a statement that the Medical Assessor (MA) had not used a goniometer when assessing range of motion of his injured left upper extremity and uninjured right upper extremity notwithstanding that the Independent Medical Examiners who had examined him had used such an instrument; that the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) (Guidelines) in the circumstances if his examination by the MA requires such use; Held – the worker’s statement as to how the MA conducted the medical examination of him had substantial prima facie probative value in terms of its particularity and plausibility; relevant parts thereof should be admitted into evidence in accordance with what Hodgson JA said in Lukacevic v Coates Hire Operations Pty Limited; that accepting what the worker said in his statement that the MA did not use a goniometer when measuring upper extremity impairment he made an assessment on the basis if incorrect criteria; the Appeal Panel accepted the worker ‘s submission that he should be re-examined by a member of the Panel to assess impairment; the worker was examined by a member of the Appeal Panel, who found a level of impairment different to that found by the MA both in respect of the injured left upper extremity and scarring assessed in accordance with TEMSKI; MAC revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 April 2022 Alan Gurnett (the appellant/Mr Gurnett) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 23 March 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):
· 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, and
· 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
On 23 March 2016 the appellant suffered an injury to his left shoulder in the course of his employment with ACFS Port Logistics Pty Ltd (the respondent) when he tripped on a metal lug on the ramp of a container that he was unloading. He attempted to prevent himself from falling and grabbed the side of a nearby trailer thereby suffering a wrenching injury to the left shoulder.
Mr Gurnett saw his doctor and was referred to Dr Jerome Goldberg, specialist shoulder surgeon. Radiological investigations revealed a small full thickness tear of the supraspinatus tendon and other degenerative features. There was no improvement with conservative treatment, and the appellant consulted another shoulder surgeon, Dr Hugh Jones. Further investigations indicated that the tear may have enlarged, and Dr Jones recommended surgery, which was carried out on 29 September 2017. The respondent’s arm was immobilised in a sling for about six weeks, followed by physiotherapy, and also the use of a brace for about nine weeks. During the time in the sling Mr Gurnett appears to have developed cubital tunnel syndrome with pins and needles radiating down the left arm and affecting the middle, ring and little fingers. Notwithstanding the fact that the middle finger was affected in addition to the two other ulnar fingers, at the time, the injury was accepted as an ulnar palsy. Dr Jones recommended that there should be a cubital tunnel decompression, but due to reluctance on the part of the appellant, this has not been carried out.Dr Ivan Popoff, specialist shoulder surgeon, provided a second opinion on Mr Gurnett’s shoulder injury and agreed with the diagnosis and the cause thereof, and with the proposed decompression surgery. The appellant has not undergone this further suggested surgery, but has had some further physiotherapy.
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 the worker should undergo a further medical examination because it was of the view that accepting what Mr Gurnett said in his statement dated 19 April 2022, relevant parts of which are admitted into evidence for the reasons referred to hereunder, if Dr Anderson did not use a goniometer when measuring range of movement of the left arm, he has made an assessment on the basis of incorrect criteria, and the appellant should be re-examined to assess impairment.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional 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 the following evidence:
(a) statement of the appellant dated 19 April 2022.
The appellant submits that the evidence is relevant to the way in which the MA measured the range of motion of his left arm. The appellant relies on [1.6] and [2.5] of the Guidelines to submit that:
(a) “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account…” [1.6], and
(b) “Range of motion (ROM) is assessed as follows:
·A goniometer or inclinometer must be used, where clinically indicated…” [2.5].
The appellant in his submissions refers to [1.16] of “…the NSW workers compensation guidelines for the evaluation of permanent impairment dated 1 April 2016,..”[1] (emphasis added) and quotes the contents thereof. Those are not the current guidelines. In any event, the quotation which the appellant attributes to [1.16] of the guidelines dated 1 April 2016 is contained in [11.6] of the Guidelines, that is the current Guidelines referred to in [5] above, which refers to the diagnosis and assessment of a psychological injury or condition, and is not relevant to the current matter.
[1] Appeal Papers (AP) p 9.
The appellant has not made submissions that the evidence was not available and could not reasonably have been obtained. The statement of the appellant dated 19 April 2022 addresses what the appellant says occurred at the examination undertaken by the MA on
17 March 2022, and accordingly was not available and could not have been reasonably obtained before the medical examination.In respect of the fresh evidence sought to be relied upon by the appellant, the respondent refers to [2.5] of the Guidelines in full as follows:
“Range of motion (ROM) is assessed as follows:
• A goniometer or inclinometer must be used, where clinically indicated.
• Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
• If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation.
• If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Guidelines.
• If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The respondent submits that, even if one is to take the appellant’s assertion that the MA did not use a goniometer to measure ROM, it must be firstly noted that either a goniometer or inclinometer must be used, “subject to the caveat of it being ‘clinically indicated’” (emphasis in submissions). Noting that the response of the MA is not available, it is not known why the MA did not use a goniometer, if indeed that did transpire, however he may have had a legitimate clinical reason as to why he founded his report on a passive ROM.
The respondent then refers in detail to the ROM found by Dr Bodel, Dr Rimmer and the MA.
The respondent submits that it is within the authority of the MA to determine what weight relevant evidence is to be given when making an assessment, and that although the MA has clearly noted the assessments of Dr Bodel and Dr Rimmer at p 7 of the MAC[2], he is not bound to their findings in any way. The MA is entitled to ascertain the ROM ‘as they present on the day’ by the means he deems clinically appropriate whilst always staying within the Guidelines. Based on these findings of ROM, the MA is able to come to the appropriate conclusions as it pertains to the appellant’s impairment. The respondent therefore submits that it is open to the MA to find a 10% whole person impairment (WPI) for the left upper extremity.
[2] AP p 32.
The appellant says at [11]-[12] of his statement dated 19 April 2022:
“11. During my assessment with Dr Anderson, he asked me to move my left arm around, but he never measured the movement with a goniometer. Dr Popoff, Dr James Bodel and even Dr Rimmer utilised a goniometer when they were looking at the movement in my left arm.
12. Dr Anderson has also indicated that he assessed movement in my right arm, but he did not even ask me to move my right arm to check the movement.”[3]
[3] AP p 14.
If that evidence is accepted, the appellant is probably correct in stating that a goniometer was not used when he was examined by the MA. In that case, the MA has not complied with [2.5] of the Guidelines and made an assessment on the basis of incorrect criteria.
The Panel also notes [1]-[8] of the statement dealing, with formal matters and the length of the examination by the MA, and [15] dealing with scarring.
The issue of whether or not a statement by a worker taking issue with the manner in which an Approved Medical Specialist (now referred to as MA) conducted a medical examination should be admitted as new evidence pursuant to s 328(3) of the 1998 Act was considered by the Court of Appeal in Lukacevic v Coates Hire Operations Pty Limited[4]. Hodgson JA, who was in the majority with Giles JA in holding that on the facts of that case such a statement should not be admitted, said at [75] - [78]:
“75. A certificate given by an approved medical specialist (AMS) must set out the reasons for the assessment and the facts on which the assessment is based: Workplace Injury Management and Workers Compensation Act 1998 ( WIM Act) s 325(2). These reasons and facts will necessarily include the history given by the worker to the AMS and the AMS's observations of the worker at the medical examination.
76. Suppose that the worker disputes that the history set out in the certificate was the history he/she gave, and/or disputes the observations recorded in the certificate. If so, the assertions of the worker on those topics, if they concern a matter relevant to the correctness of the certificate, could qualify as additional relevant information not available or obtainable before the medical assessment, within s 327(3)(b) of the WIM Act, and thus give a ground of appeal.
77. An appeal panel (AP) dealing with an appeal brought on that basis could properly determine that it should not entertain and rule on this kind of dispute between the worker and the AMS concerning what occurred on the occasion of the worker's examination by the AMS. It could then determine that, in those circumstances, the only effective way of dealing with the appeal would be for a member of the AP to conduct another medical examination: WIM Act s 324(3). This procedure itself gives rise to the possibility of procedural unfairness: see Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42.
78. A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
[4] [2011] NSWCA 112.
The Panel is of the view that the evidence of the appellant at [1]-[8], [11]-[12], and [15] (excluding the words “…and to other people”) in his statement dated 19 April 2022 has substantial prima facie probative value in terms of its particularity and plausibility.
The respondent has made submissions in respect of the statement, referred to above and hereunder.
The Appeal Panel determines that the following evidence should be received on the appeal:
(a) [1]-[8], [11]-[12], and [15] (excluding the words “…and to other people”) of the appellant’s statement dated 19 April 2022.
The Appeal Panel determines that the remainder of the appellant’s statement dated
19 April 2022 should not be received on the appeal because it consists of the expression of belief and comment by the appellant, and does not assist the Panel. The Panel accepts the evidence referred to in [24] above.
EVIDENCE
Documentary evidence
The Appeal 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.
Further medical examination
Medical Assessor Mastroianni of the Panel conducted an examination of the worker on
12 October 2022 and reported to the Panel.
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.
The appellant’s submissions in respect of the claimed failure of the MA to use a goniometer when assessing the ROM of his shoulders are set out above, as is [2.5] of the Guidelines. The Panel is of the view that a goniometer should be used when assessing ROM in accordance with that paragraph of the Guidelines. The appellant refers to what was said by Wood CJ at CL said at [72] in Campbelltown City Council v Vegan[5] when discussing “incorrect criteria”, namely:
“That the expression does not have the somewhat narrow meaning attributed to it by the Plaintiff is also consistent with the observation, in the Second Reading Speech, that the s 327(3)(c) ground is ‘designed to cover circumstances where the guides themselves have been incorrectly applied’.”
[5] [2004] NSWSC 1129.
The appellant submits that the incorrect criteria used by the MA in assessing his left and right shoulders has resulted in an incorrect upper extremity impairment and in turn, an incorrect assessment of WPI.
The appellant also submits that the assessment of scarring has not been made correctly, and refers to what the MA recorded at p 7 of the MAC that “…the arthroscopic scarring is very well healed and is uncomplicated. This therefore carries 0% whole person impairment”.[6]
[6] AP p 32.
The appellant refers to Table 14.1 of the Guidelines, Table for the evaluation of minor skin impairment (TEMSKI), and the descriptions of scar(s) and/or skin condition(s) which are relevant to assessments of 1% WPI and 2% WPI. The appellant submits that the criteria described in TEMSKI in respect of such assessments should have resulted in an assessment of 1% WPI as the ‘best fit’ in accordance with Table 14.1.
In respect of the ground that the MAC contains a demonstrable error, the appellant submits that the submissions in support of the ground that the MA has used incorrect criteria in assessing WPI may also amount to demonstrable error in the MAC. Relevant case law is relied upon in support of this submission, including Merza v Registrar of theWorkers Compensation Commission[7] in which demonstrable error is described as:
“…an error which is readily apparent from an examination of the Medical Assessment Certificate and the document referring the matter to the AMS for assessment”,
and Pitsonis v Registrar of the Workers Compensation Commission[8], which confirmed that this included an error of fact or an error of law could amount to a demonstrable error.
[7] [2006] NSWSC 939.
[8] [2008] NSWCA 88.
The appellant submits that the assessment of the MA is based on incomplete material, relying on what was held in Ah-Dar v State Transit Authority of NSW[9].
[9] [2007] NSWSC 260.
The appellant seeks that the matter be referred to the Panel for review and for a further assessment.
In reply, in addition to the submissions summarised above in respect of assessment of ROM and [2.5] of the Guidelines, the respondent submits that the MA has clearly recorded a ROM for both of the appellant’s shoulders, and that therefore, prima facie, one can assume that the specialist, who has performed these types of assessments many times before, has in fact assessed the appellant’s ROM appropriately.
In respect of scarring, the respondent refers to Table 14.1 and the criteria which would result in an assessment of 0% WPI for scarring in accordance with TEMSKI. The respondent refers to the findings of Dr Bodel in his report dated 15 December 2020[10] that the appellant had mildly complicated surgical scarring, due to the fact that “One of the lightly scars is slightly pigmented and sensitive to touch” [sic][11].
[10] AP p 58.
[11] AP p 63.
The respondent notes that Dr Rimmer in his report dated 8 March 2021[12] records no evidence of scarring, which goes to suggest that the appellant’s scars are ‘barely distinguishable’ in line with the criteria for 0% WPI in Table 14.1. This is so, according to the respondent, even though the doctor clearly notes in his history that the appellant has undergone surgical arthroscopic procedures.
[12] AP p 299.
The respondent also notes that this absence of comment in respect of scarring is also noted in the report of Dr John Sheehy dated 5 March 2021[13]. This suggests the same conclusion as Dr Rimmer and is in accordance with the assessment of the MA.
[13] AP p 340.
The respondent submits that it was open to the MA to fond 0% WPI for scarring based on his own assessment of the appellant, notwithstanding that the assessment of Dr Bodel was otherwise.
The respondent submits that the MAC does not contain any demonstrable error and is based on the correct criteria. The respondent submits that the MAC should be 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[14] and NSW Police Force v Registrar[15].
[14] [2008] NSWCA 116.
[15] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[16] 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.
[16] [2006] NSWCA 284.
The report of Dr Mastroianni to the Panel following his examination of Mr Gurnett on
12 October 2022 is as follows:
“REPORT OF THE EXAMINATION BY MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: M1-W225/22
Appellant: Alan GURNETT
Respondent: ACFS Port Logistics Pty Ltd
Examination Conducted By: Dr Tommasino Mastroianni
Date of Examination: 12 October 2022
1.The workers medical history, where it differs from previous records
The worker confirms the medical history as recorded in the MAC of Dr Tim Anderson on 23 March 2022.
2. Additional history since the original Medical Assessment Certificate was performed
There is no additional information.
3. Findings on clinical examination
Examination of the left shoulder reveals well-healed arthroscopy wounds measuring 1.5cm. The scars cause no contour defect and there is no colour contrast with the surrounding skin. There are no suture marks and no trophic changes. When examining the scars, the Claimant was asked if the scars worried him. He said that they are expected scars from surgery and on direct questioning he says that he is not conscious of the scars.
The left shoulder was tender anteriorly. The right shoulder was not tender. Both shoulders were measured with a goniometer, and both shoulders were restricted.
The Claimant was asked if he had had any previous injury to either shoulder and he gives no history of previous or subsequent injuries with the shoulders.
Shoulder Movements
Movement
Right
% Upper Extremity Impairment
Left
% Upper Extremity Impairment
Flexion
150°
2
100°
5
Extension
70°
0
40°
1
Abduction
120°
3
80°
5
Adduction
10°
1
0°
2
Internal rotation
80°
0
70°
1
External rotation
80°
0
60°
0
Total
6%
Total
14%
I assess 14% left upper extremity impairment and 4% right upper extremity impairment (which equate to 8% WPI and 4% WPI respectively. (AMA Guides, Pages 476 to 479, Figures 16-40 to 16-46).
There is no deduction in the left shoulder for pre-existing condition. There is however a deduction for impairment in the normal contralateral joint. (Joint motion, AMA 5, Page 453, Para 16.4c).
I have deducted the impairment of the non-injured right shoulder using that impairment as a baseline. In my opinion were it not for the injury to the left shoulder, the Claimant in all probability would have had the same impairment. I therefore assess 4% WPI as a result of the subject injury.
Regarding the scars, the Claimant has uncomplicated surgical scars. I assess 0% WPI. (PIC Guidelines 4th Edition, Page 73, 14.6).
4. Results of any additional investigations since the original Medical Assessment Certificate
Not Applicable.
The Panel notes that Dr Mastroianni found a better ROM of the shoulders than Dr Anderson, and found restricted ROM of the non-injured shoulder which attracts a deduction under Joint motion, AMA 5, p 453, [16.4c]. Dr Mastroianni’s examination also revealed uncomplicated surgical scars which were of no concern to the appellant, and therefore were allocated 0% WPI.
The Panel accepts the report of Dr Mastroianni. This results in an assessment of 4% WPI as a result of injury on 23 March 2016.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 March 2022 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
Matter Number: | W225/22 |
Applicant: | Alan Gurnett |
Respondent: | ACFS Port Logistics Pty Ltd |
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 Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | 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 upper extremity | 23/03/16 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433-521 | 4% | Nil | 4% |
| Scarring (TEMSKI) | 23/03/16 | Chapter 14 Pages 73-74 | 0% | Not applicable | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 4% | |||||
0
9
0