Harrison v Rod Shoesmith Pty Ltd

[2023] NSWPICMP 31

DETERMINATION OF APPEAL PANEL
CITATION:	Harrison v Rod Shoesmith Pty Ltd [2023] NSWPICMP 31
APPELLANT:	Kenneth Harrison
RESPONDENT:	Rod Shoesmith Pty Ltd
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	1 February 2023
CATCHWORDS:	wORKERS cOMPENSATION - Appellant suffered injury to right wrist; appellant’s Independent Medical Examiner (IME) included in his assessment of the appellant’s permanent impairment from that injury a rating for ankylosis; whether Medical Assessor (MA) had regard to appellant’s IME opinion; whether MA erred by not including in his assessment a rating for ankylosis; whether MA erred by not assessing appellant’s impairment due to scarring; Held – Appeal Panel found that MA did not err by not assessing scarring as appellant’s claim did not include scarring; MA had regard to appellant’s IME’s opinion; MA’s examination of the appellant did not reveal ankylosis; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 24 October 2022 Kenneth Harrison, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 September 2022.

2. 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.

3. 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.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. Rod Shoesmith Pty Ltd, the respondent, employed the appellant as a truck driver. On 11 September 2019 the appellant suffered an injury to his right wrist.

2. Relying on a report of orthopaedic surgeon Dr Christopher Harrington dated 12 January 2022, who had assessed the appellant had 19% whole person impairment (WPI) from his injury, the appellant’s solicitors notified the respondent’s insurer by letter dated 14 January 2022 that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act1987 (the 1987 Act) in the amount of $49,300.

3. The Appeal Panel observes that Dr Harrington’s assessment of the appellant’s WPI was comprised of 7% upper extremity impairment (UEI) due to restricted extension of the appellant’s right wrist, 7% UEI for restricted flexion of the appellant’s right wrist, 9% UEI for ankylosis, and 10% UEI for sensory loss of the median nerve. That combined to 31% UEI which translated to 19% WPI. The Appeal Panel further observes that Dr Harrington’s rating for ankylosis was based on his finding that the appellant’s wrist was fixed at 10⁰ of ulnar deviation and that the appellant had no radial deviation at all. The Appeal Panel also observes that Dr Harrington’s assessment of the appellant’s WPI included no component for scarring.

4. The respondent’s solicitors organised for the appellant to be examined by orthopaedic surgeon Dr John Bentivoglio on 7 April 2022. In a report addressed to the respondent’s solicitors dated 14 April 2022, Dr Bentivoglio advised that he assessed the appellant’s WPI from his injury to be 3%.

5. The respondent’s insurer then wrote to the appellant on 6 June 2022 advising the appellant that it disputed he was entitled to compensation under s 66 of the 1987 Act for permanent impairment from his injury. It informed him that its reason for that was because Dr Bentivoglio had assessed his permanent impairment to be 3% WPI. which was less than the 10% permanent impairment required under s 66(1) of the 1987 Act for the appellant to be entitled to compensation for permanent impairment.

6. The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his disputed claim for compensation under s 66 of the 1987 Act. The Appeal Panel observes that in the Application to Resolve a Dispute (ARD) that he lodged with the Commission to initiate those proceedings he particularised that his “total WPI percentage” was 19 and that the “systems claimed” was right upper extremity.

7. A delegate of the President referred the medical dispute between the parties relating to the appellant’s degree of permanent impairment from his injury to the Medical Assessor on 26 August 2022. The medical dispute was defined in the following terms:

   “MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)

    the degree of permanent impairment of the worker as a result of an injury (s319(c))

    whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))

    whether impairment is permanent (s319(f))

    whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))

   Date of Injury:   11 September 2019

   Body part/s referred:                   Right upper extremity

   Method of assessment:              Whole Person Impairment”

8. The Medical Assessor examined the appellant in response to that referral on 12 September 2022. The Medical Assessor recorded in the MAC that the appellant had the following movements of his right and left wrist and elbows:

MOVEMENT	RIGHT	LEFT
Flexion	300	600
Extension	300	600
Radial deviation	00	200
Ulnar deviation	300	300
Supination	600	800
Pronation	700	800

1. The Medical Assessor recorded that he did not identify any significant neurological features from his examination of the appellant.

2. The Medical Assessor noted in the history he took that the appellant had undergone a debridement of the triangular fibro-cartilage and a shortening of the ulnar on 11 November 2019. The Medical Assessor also noted that the appellant had undergone right wrist carpal tunnel release. The Medical Assessor said that the scars from that surgery had healed extremely well and were hardly visible.

3. The Medical Assessor explained that he assessed the appellant’s WPI by reference to reduced range of movement. The Medical Assessor’s ratings based on the appellant’s restricted range of his right wrist were 5% UEI for 30⁰ flexion, 5% UEI for 30⁰ extension, 4% UEI for 0⁰ radial deviation, 0% UEI for 30⁰ ulnar deviation, 1% UEI for 60⁰ supination and 1% UEI for 70⁰ pronation.

4. The Medical Assessor noted that that tallied to 16% UEI which converted to 10% WPI.

5. The Medical Assessor noted that his assessment of the appellant’s WPI was “probably closest to that of specialist orthopaedic surgeon Dr John Bentivoglio in his report of 14/04/20”. The Medical Assessor noted that the appellant’s recorded range of movement was better when examined by Dr Bentivoglio than what the Medical Assessor observed from his examination of the appellant. The Medical Assessor noted that he agreed with Dr Bentivoglio that there were no neurological features demonstrated by the appellant.

6. The Medical Assessor also noted that Dr Harrington in his report of 12 January 2022 advised a significant reduction of medial nerve sensation which the Medical Assessor said he was unable to demonstrate. The Medical Assessor also said that Dr Harrington described “a fixed ulnar deviation which I was not able to demonstrate either”.

7. The Medical Assessor certified that the appellant had 10% WPI resulting from his injury to his right wrist on 11 September 2019.

PRELIMINARY REVIEW

1. 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.

2. 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 Guidelines). As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel determined that the MAC was to be confirmed and it consequently would not need to re-assess the medical dispute that had been referred for assessment. Further, in such circumstance, the Appeal Panel does not have power to examine the appellant.[1]

   [1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Coenradi v the GEO Group Australia Pty Ltd [2022] NSWSC 864 at [134].

EVIDENCE

1. 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.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, the appellant submitted that the Medical Assessor failed to take into account the evidence of Dr Harrington who included in his assessment of the appellant’s WPI a component for ankylosis whereas the Medical Assessor did not. The appellant submitted that in accordance with figure 16-12 of AMA 5 ankylosis must be taken into account when assessing impairment of a joint of the upper limb. The appellant submitted that the
   Medical Assessor made no reference to ankylosis and did not explain why he “rejected Dr Harrington’s report in relation to ankylosis”. The appellant submitted that the Medical Assessor failed to take into account relevant material which constituted a demonstrable error.

3. The appellant further submitted that the Medical Assessor was required in accordance with [2.3] of the Guidelines to use a goniometer or inclinometer when measuring the range of movement of the appellant’s right upper extremity. The appellant submitted that he was “left in doubt as to how the assessment was carried out or the impairment was calculated”. The implication of that particular submission is that the appellant contended the Medical Assessor did not use a goniometer or inclinometer.

4. The appellant also submitted that the Medical Assessor was required in accordance with Table 14.1 of the Guideline to assess that he had 1% WPI for scarring.

5. In reply, the respondent submits that the Medical Assessor was not required to adopt the opinions of any of the doctors whom the parties had qualified and was not required to refer to each piece of evidence. The respondent submitted that the Medical Assessor in fact dealt with the issue of ankylosis at paragraph 10(c) of the MAC in that the Medical Assessor reported that he was unable to demonstrate a fixed ulnar deviation as Dr Harrington had. The respondent submitted that that is clearly a reference to ankylosis.

6. The respondent also submitted that given that the Medical Assessor found that the appellant’s scars were extremely well healed and hardly visible that 0% WPI was warranted under Table 14.1 for the appellant’s scarring.

FINDINGS AND REASONS

1. The procedures on appeal are contained in s328 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.

2. 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.

3. The MAC must be read as a whole to ascertain the Medical Assessor’s reasons for his assessment of the appellant’s WPI. The reasons that the Medical Assessor must provide to explain his or her assessment must be sufficient to reveal the actual path by which the Medical Assessor arrived at his or her assessment.[2] In a circumstance where an opinion or conclusion is self-evident to medical practitioners and there is no medical contest regarding it, the reasons a Medical Assessor provides do not need to be extensive or comprehensive to a person with no medical expertise. If, however, a conclusion may be medically contestable, based on the evidence, then the Medical Assessor will need to address all the relevant evidence so as to expose the path of his or her reasoning in order to explain the conclusion to which he or she came.[3]

   [2] See Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43 at [55]-[56].

   [3] See Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34] and Vegan at [121]-[122].

4. In this matter the Medical Assessor has sufficiently explained his reasons for not including any component for ankylosis in his assessment of the appellant’s impairment relating to his right wrist. This is because the findings from the Medical Assessor demonstrate that at the time of examination the appellant did not demonstrate any ankylosis in his right wrist. Ankylosis is a condition where there is no movement along a plane of movement. In other words the joint is stiff along the particular plane of movement.

5. In this case with respect to the movement along the plane from radial deviation to ulnar deviation the Medical Assessor’s examination of the appellant revealed the appellant exhibited movement along that plane. Ulnar deviation and radial deviation describe the movement of the wrist from left to right. Radial deviation is the movement of the wrist to the right with the palm faced down, that is where the hand is deviating towards the radius, and ulnar deviation is where the wrist, with the palm faced down, moves to the left, that is away from the radius and towards the ulnar. On radial deviation the appellant achieved 0⁰ movement and 30⁰ movement on ulnar deviation. Consequently, the appellant did not have ankylosis of his wrist because he was able to achieve 30⁰ of ulnar deviation along the plane of movement from radial deviation to ulnar deviation.

6. Contrary to what the appellant submits, the Medical Assessor has regard to what Dr Harrington found with respect to ankylosis. That is evident from the fact that the Medical Assessor noted that Dr Harrington had found that the appellant had fixed ulnar deviation which with 0⁰ of radial deviation represents ankylosis, that is an inability to move his wrist along the plane from ulnar deviation to radial deviation-left to right. Because the Medical Assessor noted that, he was obviously aware of what Dr Harrington had found. The Medical Assessor specifically contrasted his finding with Dr Harrington’s finding - the Medical Assessor’s finding being that the appellant had 0⁰ radial deviation and ulnar deviation to 30⁰. That indicated movement of the wrist joint along the plane, and hence movement of the joint. The Medical Assessor was entitled to make his assessment based on his finding.

7. The Appeal Panel also does not accept what is implicit in the appellant’s submission that the Medical Assessor did not use a goniometer or inclinometer when measuring the appellant’s movements of his wrists and elbows. The Appeal Panel is of the view that the measurements that the Medical Assessor made of the appellant’s wrist and elbow movements could only be done with the use of a goniometer or inclinometer. Further, there is a presumption of regularity that a Medical Assessor has conducted such tests as might be required to determine the range of motion of a joint.[4] That presumption is rebuttable but there is nothing before the Appeal Panel that would support such a rebuttal. Indeed, the measurements that the Medical Assessor obtained and recorded in the MAC support the presumption.

   [4] Jones v The Registrar WCC [2010] NSWSC 481 at [50].

8. The Appeal Panel also agrees with the respondent’s submissions regarding the appellant’s permanent impairment relating to the scars from his surgery to his right wrist. What the Medical Assessor described in the MAC regarding those scars would best fit the criteria for 0% WPI. The scars would not have any effect on the appellant’s activities of daily living. From what the Medical Assessor described there would be no contour defect. The Medical Assessor found the scar is barely visible, which means that the colour matching with surrounding skin would be good and the barely distinguishable from surrounding skin.

9. In any event, the appellant did not make any claim relating to permanent impairment from scarring. The assessment that the Medical Assessor was required to perform was limited by the dispute that was referred to him. The report of Dr Harrington of 14 January 2022, upon which the appellant relied to support his claim, did not include any component for scarring. The appellant’s solicitor’s letter by which the appellant made his claim for compensation did not indicate that the appellant was claiming compensation for permanent impairment for scarring. The ARD that the appellant lodged with the Commission to initiate the proceedings for a determination of his disputed claim did not particularise that the permanent impairment he was claiming included any component for scarring, and indeed it indicated that his claim related to the left upper extremity only. The referral to the Medical Assessor did not stipulate that scarring was to be assessed. The medical dispute that a Medical Assessor must assess is limited to the terms of the claim that is made.[5]

   [5] Skates [27]-[35], [44]-[46] and Sakar v Merrylands Christian Pre School Association Inc [2022] NSWSC 768 at [44]

10. For these reasons, the Appeal Panel has determined that the MAC issued on 26 September 2022 should be confirmed.