Hewitt v Pacifika Pallets & Handling Aids Pty Limited
[2021] NSWPICMP 15
•11 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hewitt v Pacifika Pallets & Handling Aids Pty Limited [2021] NSWPICMP 15 |
| APPELLANT: | Martin Hewitt |
| RESPONDENT: | Pacifika Pallets & Handling Aids Pty Limited |
| APPEAL PANEL: | Mr William Dalley Dr Brian Noll Dr Michael McGlynn |
| DATE OF DECISION: | 11 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant worker alleges AMS should have assessed 1% WPI in respect of scarring; no assessment of scarring in the MAC although appearance of scar commented upon; Held- AMS was correct not to assess scarring as neither “skin” nor “scarring” had been referred to the AMS; referral limited to left upper extremity; reasoning of the Panel in Inghams Enterprises Pty Ltd v Lorraine Hickey discussed and applied; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 October 2020 Martin Hewitt (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Hugh English, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 15 October 2020.
The appellant relies on the ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act): the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, the ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant suffered an injury to his right hand as a result of a fall on 4 April 2011 in the course of his employment with Pacifika Pallets & Handling Aids Pty Limited (the respondent). The fall aggravated a pre-existing right carpal tunnel condition and he underwent revision surgery to his right carpal tunnel in 2011.
The appellant continued to experience symptoms in the right-hand and underwent surgery on the right-hand in 2017. He developed symptoms in the left carpal tunnel and underwent surgery on the left hand on 24 October 2017. Shortly afterwards the appellant was examined by an AMS, Dr Donald Faithfull, who issued a MAC on 1 December 2017 in respect of a general medical dispute as to whether the degree of permanent impairment was fully ascertainable.
The AMS on that occasion was, understandably, satisfied that the appellant had not reached maximum medical improvement reporting “the degree of permanent impairment is not able to be fully ascertained because of the recent surgery and should not be assessed for a further 12 months”.
The appellant was subsequently assessed by another orthopaedic surgeon, Professor Ghabriel in March 2019. Professor Ghabriel assessed the right upper extremity at 11% whole person impairment (WPI) with a further 1% WPI added in respect of scarring on the right-hand and 11% WPI in respect of impairment in the left upper extremity with a further 1% WPI in respect of scarring to the left hand.
The respondent was examined by Dr Paul Robinson, orthopaedic surgeon, on behalf of the respondent in June 2019. Dr Robinson assessed 6% WPI in respect of both the upper extremities. Dr Robinson did not assess impairment with respect to scarring.
The medical dispute as to the extent of impairment in the left upper extremity was referred to the AMS, Dr Hugh English, who assessed the appellant as having 8% WPI as result of impairment in the left upper extremity. The AMS deducted one tenth in respect of contribution from the pre-existing condition, certifying 7% WPI (after rounding) with respect to the condition in the left hand resulting from the subject injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Workers compensation medical dispute assessment guidelines.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no demonstrable error has been made out.
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.
Although the appellant has not sought leave to admit further evidence, the appellant attached coloured photographs of the left and right hands showing scarring to the respective hands.
The appellant submits that the evidence is relevant to determine whether demonstrable error is established with respect to what the appellant alleges is a failure to assess 1% WPI in respect of scarring to the left hand.
The respondent has raised no objection to the inclusion of the photographs.
The photographs were not before the AMS but go some way to replicate the AMS’s opportunity to examine the appellant’s hands. For the reasons set out below, it is unnecessary to decide whether those photographs should be taken into consideration at this time.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The AMS recorded that the body part/system referred for assessment was the “left upper extremity” as a result of injury on 4 April 2011. The AMS noted the history of surgery to both hands. Under the heading “Brief history of the incident/onset of symptoms and of subsequent related events, including treatment” the AMS noted that he had supplied a previous report and since that time the appellant had undergone release of the ring and little finger trigger fingers on 5 May 2020. He noted continuing treatment and continuing symptoms in the left hand. The AMS noted on physical examination:
“Mr Hewitt has two well-healed extended carpal tunnel incisions which have healed with scarring up to 8 cm long. Three flexor tendon releases are evident on the right palm, index, middle and ring finger. Two trigger finger releases have healed as small transverse cuts in the left palm over the ring and little finger. Both palms are rather reddened and slightly swollen. He is conscious of the scars. There are minimal trophic changes. Minor contour defect is evident. The scars themselves cause negligible effect on any ADL and no treatment of the scars is required. There is no adherence. Mr Hewitt demonstrates a full range of motion of his wrists, fingers and thumbs. There is no muscle wasting. There is reduced sensory function of the tips of the index, middle and ring fingers both hands with a Grade 3 sensory deficit under Table 16.10, Page 482. There is no further triggering of the left hand.”
The AMS assessed the left hand as follows:
“Left-hand is assessed in relation to Grade 3 sensory deficit pain, Table 16.10, page 482 of AMA5, with a 60% sensory deficit. The thumb is not involved. There is no muscle wasting. The index, middle and ring finger symptoms give a maximum percentage upper extremity impairment under Table 16.15 of 21% upper extremity. 21% upper extremity is multiplied by 60% to give a 12.6% upper extremity impairment left hand. No impairment is assessable for the constriction tenosynovitis which has been treated surgically in the left hand now. 12.6% upper extremity converts to 8% whole person impairment.”.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. In summary, the appellant appeals the Medical Assessment Certificate of AMS Dr Hugh English dated 15 October 2020 in respect to the AMS’s decision “not to award the appellant a 1% WPI in respect to scarring to the left upper extremity.”
The appellant asserted that the AMS had previously assessed the appellant on 8 November 2019 and had “awarded the appellant 1% WPI for scarring to the right upper extremity.” The appellant submitted that there was “identical, or extremely similar, scarring to both upper extremities as a result of the same work injury and the subsequent surgeries which again, were identical in nature.” The appellant detailed the respective surgical procedures.
The appellant noted the Guidelines for assessment of minor skin impairment (TEMSKI) and submitted that, having regard to the photographs supplied, the appellant met the criteria for assessment of 1% WPI. The appellant submitted “It is submitted that the appellant’s scarring bilaterally meets each definition referred to above and AMS English should have awarded 1% WPI for each upper extremity.”
In reply, the respondent submits that no demonstrable error had been shown. The respondent noted the basis of the appellant’s submissions to the effect that because 1% WPI had been awarded in respect of scarring to the right hand, it followed that 1% WPI was appropriate in respect of the scarring to the left hand. The respondent noted that the surgical histories in respect of the two hands was different and submitted:
“In the circumstances, the respondent submits that the surgical intervention undertaken to the appellant’s upper extremities can be distinguished and it is not simply a matter of applying the criteria applied to the claimant’s right upper extremity to the left upper extremity.”
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant’s submissions are based upon “the assessors decision not to award the appellant 1% WPI in respect of scarring to the left upper extremity.” However, it is clear that the terms of the referral to the AMS did not include assessment of scarring. The referral was in the following terms:
“1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (section 319 1998 Act)
úthe degree of permanent impairment of the worker as a result of an injury (section 319 (c))
úwhether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and extent of that proportion (section 319 (d))
úwhether impairment is permanent (section 319 (f))
úwhether the degree of permanent impairment of the injured worker is fully ascertainable (section 319 (g))
Date of Injury: 4 April 2011
Body part/s referred: Left upper extremity
Method of assessment: Whole person impairment”
An AMS who assesses a body part or system that has not been referred falls into demonstrable error[1]. The appeal panel in Inghams Enterprises Pty Ltd v Lorraine Hickey[2] (Hickey) explained the situation (omitting citations):
[1] Aircons Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 322
[2] [2018] NSWWCCMA 10 Arbitrator John Harris, Dr Drew Dixon, Dr Mark Burns.
“[55] The meaning of “matters referred for assessment” in s 325 was considered in Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW) (Aircons).
56. The facts in Aircons are somewhat pertinent to the present matter. In that case the matter was referred to one AMS, Dr Fry who is a plastic surgeon, to assess scarring and skin discolouration and to another AMS, Dr Bodel, to assess restriction of movement. The Court held that the Medical Assessment Certificate issued by Dr Fry contained a demonstrable error because he had not given a certificate as to matters referred to him. During the course of his Reasons, Malpass AJ stated:
‘18 By way of introduction to dealing with the contentions of the parties, it may be helpful to observe that it is a matter of importance that the medical dispute referral, identify with precision the matters that are referred for assessment. A failure to do so may infect the whole assessment process.
19 Counsel for the second defendant has contended that the arbitrator was not empowered to make the referrals that were made in this case. This is one of those matters that has not been fully argued. In the light of the minimal argument that has taken place, I am not satisfied that this contention is well founded. In this context, it suffices to observe that the referrals would appear to fall within the compass of, inter alia, (c) of the definition.
20 The prescription contained in subsection (1) of s325 requires the approved medical specialist (AMS) to give a certificate as to the matters referred for assessment. It is significant that the provision appears to distinguish between “a medical dispute” and “the matters referred for assessment”. The statutory function of the AMS is to give a certificate as to those matters.
21 I am satisfied that the medical assessment certificate given by Dr Fry contains demonstrable error. He has addressed matters other than those referred to him for assessment. He has not given a certificate as to the matters referred for assessment. This has seen him venture outside that area and one of the consequences is that there is overlapping with the assessment made by Dr Bodel. The supplementary certificate given by Dr Bodel was founded on the correctness of the certificates that both he and Dr Fry had given. Accordingly, the supplementary certificate is infected with the error contained in the earlier certificate of Dr Fry.’
57. Unassisted by the legal representatives as to any legal authority on the issue of the power or jurisdiction of the AMS, the Panel has only identified the decision of Aircons and a decision of the Commission on this issue: O’Callaghan v Energy World Corp Ltd (O’Callaghan).
58. In O’Callaghan the claimant was originally assessed for permanent impairment restricted to the lumbar spine. An application was then made to reconsider the orders of the Commission to enable an appeal to be filed against the medical assessment certificate based on a deterioration in the worker’s condition pursuant to s 373(3)(a) of the 1998 Act. This application was dismissed18 and an appeal against that decision was dismissed.
59. Ms O’Callaghan argued that her condition had deteriorated and sought an assessment in respect of the cervical spine. No claim for permanent impairment had previously been made in respect of the cervical spine and the original medical assessment certificate was limited to the assessment of impairment of the lumbar spine.
60. During the course of his Reasons, Roche DP stated:
19 “I do not accept that Aircons does not relate to the circumstances contemplated by grounds (a) and (b).Once it is accepted, as it must be, that a s 327 appeal is ‘against a medical assessment’, Aircons is directly relevant and binding. As held in that case, an AMS can only give a certificate as to the matters referred for assessment. To say that the Medical Appeal Panel is not restricted to the matters in the original referral to the AMS ignores the fact that a matter does not get to a Medical Appeal Panel unless and until the Registrar is satisfied that, on the face of the application and any submissions made in support of it, at least one of the grounds for appeal specified in subsection (3) has been made out.”
61. AMA5 specifies that assessment of impairment is based on “organ/body” systems and provides that different chapters describe regional impairments such as the “upper extremities”, “the lower extremities” or “the skin”.20 Separate impairments from different body systems are combined using the “Combined Value Charts” in AMA 5.21
62. Any assessment of the upper extremity is made in accordance with chapter 16 of AMA5 as varied by chapter 2 of the fourth edition guidelines.
63. The skin is assessed in accordance with Chapter 8 of AMA5 as varied by chapter 14 of the fourth edition guidelines. The parties often referred to “scarring” although that is only one aspect of assessment of the skin.
64. The assessments from the respective body systems are then aggregated in accordance with the “Combined Value Charts”.
65. Both AMA5 and the fourth edition guidelines delineate between the “upper extremity” and “the skin” despite the fact that, as the respondent submitted, the skin is “on the body part being assessed by an AMS”.
The Panel accepts and adopts the reasoning set out in Hickey. In the present case the referral was limited to “left upper extremity” with no reference to the skin or scarring. The AMS did not fall into error by not assessing scarring because that was not part of the referral.
Whether the referral is capable of amendment or reconsideration is a matter for the parties and the Commission, but demonstrable error has not been established in respect of the medical dispute referred to the AMS for assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 October 2020 should be confirmed.
William Dalley
Member
Dr Brian Noll
Medical Assessor
Dr Michal McGlynn
Medical Assessor
11 March 2021
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