Hills Industries Ltd v Skates
[2022] NSWPICMP 424
•26 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hills Industries Ltd v Skates [2022] NSWPICMP 424 |
| APPELLANT: | Hills Industries Limited |
| RESPONDENT: | Anthony Earl Skates |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Dr Gregory McGroder |
| MEDICAL ASSESSOR: | Paul Sweeney |
| DATE OF DECISION: | 26 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Medical dispute referred for assessment of “Left Upper Extremity (wrist, joint of ring finger)” and Scarring; Medical Assessor (MA) diagnosed Complex Regional Pain Syndrome (CRPS) which did not meet the criteria in Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) (Guidelines) but accepted that the condition resulted from injury; he assessed each of the joints in the worker’s left upper extremity in accordance with Chapter 16 of the Guidelines and certified that he suffered 53% whole person impairment (WPI); employer argued that worker should have be assessed in accordance with the Referral; Skates v Hills Industries Ltd considered and applied; Held – MA required to assess WPI in accordance with the medical dispute referred for assessment; neither the Referral, the worker’s letter of claim, nor the medical evidence on which it was based permitted an assessment of all joints of the left upper extremity; Medical Assessment Certificate (MAC) revoked and new MAC issued assessing the body parts/systems referred for assessment. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 July 2022 Hills Industries Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor (MA, formerly an Approved Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 9 June 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
Anthony Earl Skates (the respondent) suffered injury to his left hand and wrist in the course of his employment with the appellant on 7 June 2013. While installing a Foxtel dish on the roof of a house, he fell to the ground landing on his outstretched left arm. He suffered a displaced left radial fracture.
The respondent was initially treated at Wagga Base Hospital where he underwent open reduction and internal fixation of the radial fracture. Subsequently, he experienced an inability to flex the distal interphalangeal joint of his ring finger. An MRI scan of the finger demonstrated rupture of the flexor digitorum profundus tendon. Dr Angela Hatfield, an orthopaedic surgeon, proposed that this be treated with a two-stage flexor tendon graft. The respondent underwent the flexor tendon reconstruction at Calvary Hospital at Wagga on 9 October 2013 and 11 December 2013. Following his surgery he wore a splint.
On 10 January 2014, Dr Hatfield reported that the respondent’s wounds had healed well. However, he had developed stiffness in the PIP joint of the ring finger which was “impairing his rehab significantly”. As the respondent continued to struggle to make a normal fist with his left hand, Dr Hatfield undertook further surgery, a neurolysis and tenolysis of the right hand. On 31 October 2014, she reported that “his wound had healed but he still had some post-operative swelling.”
On 26 May 2015, Dr Hatfield reported that the respondent’s condition had plateaued. Nerve conduction studies of his right arm negatived the presence of a compressive neuropathy. However, Dr Hatfield noted that he had been experiencing increasing shoulder pain and thought that this should be investigated by an MRI of the left shoulder and referral to a shoulder specialist.
The respondent’s solicitor subsequently referred him to Dr David O’Keefe, an orthopaedic surgeon, to assess a potential claim for permanent impairment. On 1 March 2016, Dr O’Keefe provided a report which recorded a history consistent with that set out above. He stated:
“It is now 3 years since the original injury. He has had 5 lots of surgery and he has a depressive overlay, chronic pain and has not returned to work. He has recently been referred to a pain clinic.”
On clinical examination Dr O’Keefe noted that the respondent held his left arm by his side and that it appeared to be “swollen and quite painful”. He found a stiff left wrist and marked stiffness of the distal interphalangeal (DIP) joint of the ring finger. In respect of a diagnosis, he said this:
“Clinical diagnosis is displaced left radial fracture treated appropriately but complicated by CRPS Type 1 and depression following 4 lots of surgery to correct deep flexor tendon rupture, which probably would have been better managed by a DIP joint arthrodesis of the finger.”
Dr O’Keefe assessed 18% whole person impairment (WPI) which comprised 3% WPI for scarring and 15% WPI in respect of the DIP joint of the left ring finger and the wrist.
Dr Panjratan, an orthopaedic surgeon, saw the respondent on two occasions at the request of the appellant. Following the second consultation, Dr Panjratan provided a report dated 6 June 2017. On examination, he found pain but no pathology in the respondent’s left elbow and shoulder. He diagnosed a fracture of the left wrist and a rupture of the flexor digitorum profundus of the left ring finger. He assessed 12% WPI which comprised 1% for scarring and the balance for restricted movement of the wrist and the DIP joint of the left ring finger. He said this:
“Regarding movements of the hand, the ring finger DIP joint flexion is 30° figure 16-21 page 461. Other than that, the movements are normal.”
On 26 March 2016, the respondent made a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) on the basis of the report of Dr O’Keefe dated 1 March 2016. The appellant relied on the opinion of Dr Panjratan.
The difference of opinion between these doctors gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. Accordingly, the Registrar of the then Workers Compensation Commission referred the dispute to Dr Frank Machart, an MA for assessment. The long history of the litigation between the parties since that time is a matter of public record. The body parts/systems referred to Dr Machart were the:
“left upper extremity (joint ring finger), scarring (TEMSKI)”.
The Delegate of the Registrar mistakenly failed to refer the left wrist for assessment and this error was compounded by the failure of the parties to rectify it prior to the assessment.
On 13 October 2017, Dr Machart certified that the respondent’s condition had not reached maximum medical improvement as he had developed chronic regional pain syndrome (CRPS) in his left arm. Accordingly, he determined that permanent impairment was not fully ascertainable.
Dr Machart examined the respondent again on 29 April 2019 and provided a MAC of 15 May 2019 by which he certified that he suffered 61% WPI which comprised 60% for the left upper extremity (including the shoulder, elbow, wrist and all the fingers of the left hand, including the thumb) and an additional 2% for scarring.
On 27 September 2019, a Medical Appeal Panel (MAP) revoked the MAC of 15 May 2019 and in a new MAC certified that the respondent suffered 7% WPI which comprised 5% WPI for the left upper extremity (joint ring finger) and 2% WPI for TEMSKI scarring. Although it was common ground that the referral did not reflect the medical dispute between the parties as the left wrist had been mistakenly omitted, the Panel declined to assess the wrist.
The respondent sought judicial review of the decision of the MAP pursuant to s 69 of the Supreme Court Act 1970 (NSW). On 30 June 2020, Adamson J, in the Supreme Court[1], held that both the MA and the MAP were bound by the Referral. As the present appellant conceded that the left wrist should have been included in that referral, the certificate issued by the panel was set aside and the matter was remitted to the Registrar to be determined in accordance with law.
[1] Skates v Hills Industries Ltd [2020] NSWSC 837.
The present respondent then appealed to the New South Wales Court of Appeal. On 14 July 2021. In Skates v Hills Industries Ltd[2] by majority the court dismissed the appeal but directed that the President, in determining the terms of a referral for a further medical assessment, should include the left wrist as a body part to be assessed.
[2] [2021] NSWCA 142 (14 July 2021) (Skates).
The delegate of the President referred the assessment to Dr Gothelf. It is from his MAC dated 9 June 2021 that the appellant brings this appeal.
PRELIMINARY REVIEW
The panel conducted a review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that neither party sought a further examination. The criticism of the MA was directed at his failure to assess the medical dispute referred to him and not to the methodology or manner which he had performed the examination or assessment of the body parts properly referred.
EVIDENCE
The panel has before it all the documents which were sent to the MA for the original medical assessment. It also has the first MAC of Dr Machart in which he certified that the respondent‘s condition was not fully ascertainable.
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 Panel. In summary, the appellant submits that the MA erred in two respects.
First, in assessing the impairment of the left shoulder, elbow, thumb and fingers where the referral was limited to the left upper extremity (wrist, joint ring finger) and scarring (TEMSKI). Secondly, the MA had “provided inadequate reasons for finding the impairments in the left upper limb resulted from the injury”.
The appellant’s submission recites the circumstances in which the claim was made by letter of 22 March 2016 and the insurer’s response by letter dated 11 July 2017. It refers to the decision of the Supreme Court and the Court of Appeal in Skates and to Aircons Pty Ltd v Registrar of Workers Compensation Commission.[3]
[3] (NSW) [2006] NSWSC 332 (Aircons).
The appellant submitted that a consideration of these cases compelled the conclusion that the assessment of the whole of the left upper extremity by the MA was “outside the terms of the referral for assessment” and the medical dispute between the parties. It continued:
“The Appellant further submits that the Medical Assessor has not provided an adequate explanation for his opinion that “the lack of active movement of all joints of the upper extremity was caused by the subject injury”. The appellant submits this is a demonstrable error.”
By her submissions, the respondent argued that the appeal was served out of time and should be dismissed. That, however, is not part of the medical dispute referred to the panel. It is for the Commission to determine
In respect of the medical issue, the respondent submitted that the appellant’s submission was “ill-founded”. The referral “does not by itself define the claim”. In this respect she referred to Yates v Flavojen Pty Ltd[4], Sakr v Merrylands Christian Pre-School Association Inc[5], and Mifsud v Pitador Excavations Pty Ltd t/as J B Concrete Pty Ltd[6].
[4] [2022] NSWSC 338.
[5] [2022] NSWSC 768.
[6] [2022] NSWSC 1010.
The respondent submitted that:
“The terms of the referral are important but only if they accurately state the medical dispute. Thus in Skates the primary judge granted relief because the referral did not include the wrist when it had been part of the claim.
On appeal all three judges considered that the dispute could be determined on the facts of that case at the time by examining the claim letter, the medical reports and the application to resolve a dispute.”
The respondent argued that the claim initially made could be “the subject of amendment”. He continued:
“By the time of this referral the claim and therefore the dispute had changed. The original assessor had assessed impairment involving the entirety of the arm in the same manner as the current assessor.
It is clear from that time of that assessment the respondent was asserting that there was an impairment in the entire upper extremity as a result of the accepted work injury. This is apparent from the submissions to the appeal panel, the Supreme Court and the Court of Appeal. The respondent also relies upon the report of Dr Andersen dated 7 December 2018 who assessed a 60% impairment in the entirety of the left upper extremity.
This is the medical dispute that was referred for assessment. It is immaterial that the referral form did not clearly articulate the dispute but properly read it sought a referral for assessment of the degree of impairment of the left upper extremity as a result of injuries to the left wrist, ring finger and scarring.
This is precisely the assessment that was made and the assessment does not demonstrate any error.”
The respondent also noted that the opinion of the MA was broadly consistent with that of Dr Anderson and Dr Machart. He continued:
“The assessor diagnosed CRPS but found there were insufficient signs to allow an assessment applying chapter 17. Accordingly, he applied chapter 16 which was the correct approach (see Mifsud). The assessor’s reasons make it tolerably clear that the loss of the range of movement was due to the CRPS which had been found by himself and two other doctors. In the circumstances the reasons given are adequate.”
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 Panel has only considered those grounds specifically raised by the appellant in its 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 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).
The MA correctly recorded at the commencement of the MAC that the body parts/systems referred for assessment by the President on 16 March 2022 were the:
“Left Upper Extremity (wrist, joint ring finger)
Scarring (TEMSKI)”
Dr Gothelf comprehensively reviewed the treating medical evidence, some of which has been summarised above, and the opinions of the specialists who had either treated the respondent worker or saw him for the purposes of the litigation. Included in those documents were the MAC dated 15 May 2019, which had been revoked by the previous medical appeal panel. It is doubtful if the MA should have been provided with a MAC which no longer had any force or effect on the issue of the respondent’s WPI as a result of the injury of 7 June 2013. The MA summarised the MAC as follows:
“Dr Machart diagnosed with CRPS. He mentioned that Anthony had a useless left arm which rates as 60% WPI total loss. A 2% WPI was given for scarring. These were combined to reach 61% WPI total.”
On his examination, the MA found significant restriction of the respondent worker’s left shoulder, elbow, forearm, wrist, thumb and each of the fingers of the hand which he contrasted with the free movements of the joints of the right upper limb. He also examined the respondent worker for signs of CRPS in accordance with chapter 17 of the Guidelines. He recorded that the “strict criteria” of the SIRA Guidelines were not met as there was no evidence of vasomotor or sudomotor/oedema changes on his examination. He observed:
“The circumference of the arms measured were symmetrical and it seems rather anomalous that they are identical circumferential measurements. However, I believe the presentation was genuine and with the very obvious dysfunction of this upper limb it is appropriate to continue with the WPI assessment.”
After referring to the neurophysiology and a bone scan of 2016, the MA summarised the respondent’s injuries and diagnoses as follows:
“· Left distal radius fracture.
· Left ring finger flexor tendon delayed rupture.
· Development of complex regional pain syndrome of the left upper extremity, although the presentation does not satisfy the criteria of the SIRA Guidelines in Chapter 17.”
In his reasons for assessment, he said this:
“The left upper extremity joints have lost active motion as a result of the subject injury. However the strict criteria of chapter 17 were not satisfied as all criteria must be satisfied in order to be considered CRPS for impairment. Although CRPS was not satisfied, I consider that the lack of active movement of all of the joints of the upper extremity was caused by the subject injury and therefore is included in the calculation of permanent impairment.”
The MA assessed the range of movement of the left shoulder, elbow, wrist, thumb and each of the fingers of the left hand which gave rise to an assessment of 53% WPI. He assessed scarring as 1% WPI. Thus, his final assessment in conformity with the Combined Values Chart was 53%.
The diagnosis and certification of WPI in the MAC is similar to that in the previous MAC of Dr Machart dated 15 May 2019 which was revoked by the previous medical appeal panel. With one qualification, that MAP’s conclusion that the medical dispute between the parties should be determined by reference to the Referral was endorsed by both the Supreme Court and the Court of Appeal. The qualification related to the MAP’s failure to amend the referral to include a reference to the respondent worker’s wrist which the parties agreed had been erroneously omitted from the referral.
At [71] Adamson J said this:
“In my view, the plain meaning of the referral was that the only part of the left upper extremity which was to be assessed was the joint ring finger and scarring. By agreement with the Employer the wrist was also to be assessed. However, the AMS was not entitled to assess the whole of the left upper extremity and went beyond the jurisdiction conferred on him by the referral. While it is understandable that the AMS, Dr Machart, felt entitled to continue where he had left off after the first referral, he was in error to assess the degree of permanent impairment in body parts that were not within the ambit of the referral. The appeal panel was correct to recognise this error. It, too, was bound by the terms of the referral. Its remit was also, however affected by the Employer’s concession that the left wrist ought to have been referred. Indeed, the appeal panel expressly noted the employer’s concession that the wrist ought to have been included in the referral.”
It is undoubtedly the case, as the respondent argued, that the judgment of the majority in the Court of Appeal held that it was permissible to identify the medical dispute by reference to the documents constituting the claim, including the letter of claim, the medical reports, and the pleadings. While the referral was important, in some circumstances its content must yield to the language in these documents.
Nonetheless, the majority upheld the finding at first instance that Dr Machart had erred in failing to limit his assessment to the terms of the dispute. At [35], Basten J said this:
“Further, it is apparent that the referral by the Registrar was in a standard form, as was the application to resolve a dispute. There was no suggestion that these forms were not in appropriate terms. It follows that the primary judge was correct in finding that the Appeal Panel (subject to the identified concession which it was held should have been taken into account in assessing the claim) was correct in concluding that Dr Machart’s assessment contained demonstrable error in failing to be limited to the terms of the claim.”
At [49], Leeming J said:
“The Appeal Panel was correct to state that the approved medical specialist had gone beyond assessment of the medical dispute which had been referred to him.”
The orders made by the Court of Appeal on 14 July 2021, in so far as they are relevant, were as follows :
“(1) Grant leave to appeal for the purposes of making the following orders:
i.Set aside the decision of the Arbitrator made on 1 November 2019;
ii.Direct that the President, in determining the terms of any referral for a further medical assessment, include the left wrist as the body part to be assessed.
(2) Otherwise dismiss the application for leave to appeal.”
In accordance with those orders, on 16 March 2022, a delegate of the President issued a further referral for assessment of permanent impairment to a medical assessor. The medical dispute referred for assessment was described as follows:
“Date of injury: 7 June 2013
Body part/s referred: Left Upper Extremity (wrist, joint ring finger),
Scarring (TEMSKI)
Method of assessment: Whole person impairment”
Plainly, the terms of the referral reflected the dichotomy of opinion between Dr O’Keefe and Dr Panjratan as to the degree of WPI. The joint of the ring finger referred to in the assessment is the DIP joint which was found to have limited movement on examination by both doctors
While the decision in Skates may have attenuated the status of the Referral, it must remain an important document in determining the nature of the medical dispute. In many cases it is settled by consent at a conference or arbitration hearing. In some cases it reflects the determination of the Member as to the nature of the injury following a contested hearing. In all cases it is referred to the parties for their approval. It has statutory underpinning in the Guidelines which state that it is to “make clear to the assessor the injury or medical condition for which an assessment is sought”[7]
[7] Guidelines 1.6(d).
In these circumstances, it is probably impractical for an MA to attempt to identify from the pleadings and other documents forwarded to him the nature of the medical dispute save where there is obvious error in the referral. Generally doctors are not conversant with pleadings and particulars. It is otherwise for a medical appeal panel.
It has been suggested that for an MA to focus too narrowly on the referral document may give rise to jurisdictional error[8]. But that approach transfers the obligation of the parties to properly characterise the medical dispute to an MA who has little or no familiarity with the legal process and no understanding of what compromises or concessions may have been made by the parties prior to the referral.
[8] Mifsud [51].
As the reasons of the Court of Appeal made clear, the medical dispute to be assessed in this case was that contained in the initial referral and the previously omitted left wrist. This reflects the claim for permanent impairment made by the respondent and the particulars in the Application to Resolve a Dispute (ARD). The injury description in that document refers to an “Injury To left wrist, ring finger and scarring.” The respondent’s submission that this referral permitted the assessment of all of the joints in the left upper limb is inconsistent with this reasoning.
The respondent, however, argues that the nature of the medical dispute was transformed or, alternatively, amended by evidence or submissions which had either been served or was known to both parties. The change or amendment permitted the assessment of the entirety of the left upper extremity on the basis of restriction movement in accordance with chapters 16 of the Guidelines.
It is not suggested by the respondent that the ARD, the letter of claim, or the Referral document was ever amended to reflect this change. It is not suggested that notice was given formally or informally in respect of a claim for WPI in respect a claim for permanent impairment of the entirety of the left upper limb. The only claim for permanent impairment compensation pursuant to s 66 remained one for 18% WPI based on Dr O’Keefe’s assessment of injury to the left wrist and DIP joint of the ring finger.
Quite apart from compliance with the statutory scheme for the determination of medical disputes, if a claim was to be made for permanent impairment compensation resulting from all of the joints of the respondent’s left upper limb on the basis of chapters 16 or 17 (CRPS) of the Guidelines, fairness required that notice be given. The appellant may have chosen to deny liability for this claim or argue that CPRS is not compensable in accordance with chapter 16 of the Guidelines.
The respondent argued that the MAC of Dr Machart of 15 May 2019 put the appellant on notice of an amended claim. But the appellant did not accept the findings of this MAC and argued successfully before the previous medical appeal panel that it should be set aside and the respondent confined to the initial referral. Similarly, before both the Supreme Court and the Court of Appeal, it argued that the assessment by Dr Machart was outside the scope of the referral and should be set aside. Against that background, the respondent should have given notice if it wished to amend the referral.
Then, the respondent argued that the report Dr Anderson dated 7 December 2018 put the appellant on notice of the amended claim. That report was served on the appellant prior to the previous MAC issued on 15 May 2019. The point that it amended the claim, however, was either not taken or implicitly rejected by the medical appeal panel, the Supreme Court and the Court of Appeal. After the conclusion of those proceedings, the respondent permitted the present Referral to be issued by the delegate and sent to the MA without amendment.
There may be good reasons for the respondent’s failure to amend the claim. It is not clear that this report assisted the respondent’s permanent impairment claim. Consistently with all of the medical evidence in this matter, Dr Anderson opined that, on examination of the respondent’s left arm, he did not have the objective signs of CRPS required by chapter 16 of the Guidelines.
Absent those signs, the respondent must be assessed in accordance with the underlying condition in accordance with chapter 1.12 of the Guidelines. It states:
“AMA5 Chapter 18, on pain, is excluded entirely at the present time. Conditions associated with chronic pain should be assessed on the basis of the underlying diagnosed condition, and not on the basis of the chronic pain. Where pain is commonly associated with a condition, an allowance is made in the degree of impairment assigned in the Guidelines. Complex regional pain syndrome should be assessed in accordance with Evaluation of permanent impairment arising from chronic pain in the Guidelines.”
The underlying condition in this case is the initial injury to the respondent’s left wrist and index finger. Chapter 1.12 and Chapter 16 of the Guidelines preclude the assessment of chronic pain, including chronic regional pain syndrome unless the objective criteria set out in Chapter 16 are present on examination.
In the opinion of the panel, the MAC must be revoked as the MA was bound by the terms of the Referral considered in the context of the claim documents. In assessing chronic pain or CRPS and in assessing all of the joints of the left arm, he went outside the terms of the referral and the medical dispute between the parties.. The panel is also of the opinion that the MA did not give adequate reasons for his determination that the impairment in the left upper limb caused by chronic pain resulted from injury.
Chapter 16 of the Guidelines precludes the assessment of chronic pain unless the criteria set out in the chapter are met. On the MA’s findings, the specified criteria were not present. Other than chronic pain, there is no medical explanation for the symptoms in the respondent’s left upper extremity apart from the left ring finger and wrist. It was, therefore, not permissible for the MA to determine WPI as a result of the injury on this basis.
The panel re-assessed the respondent’s impairment on the basis of the MA’s findings with respect to the DIP joint of the left ring finger and the wrist. With regard to the wrist, flexion to 0 degrees is 10% upper extremity impairment (UEI) and extension to 20 degrees is 7% UEI. Radial deviation to 20 degrees is 0% UEI and ulnar deviation to 0 degrees is 5% UEI. These are added and this results in 22% UEI. With regard to the DIP joint of the left ring finger, this has been assessed as being ankylosed at 30 degrees and this is 33% digit impairment. This converts to 3% hand impairment, which converts to 3% UEI.
Combining 3% for the ring finger with 22% for the wrist produces 24% UEI, which converts to 14% WPI. To this must be added 1% WPI for scarring. In accordance with the Combined Values Chart, WPI is 15%.
For these reasons, the panel has determined that the MAC issued on 9 June 2022 should be revoked, and a new MAC 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: | 3957/17 |
Applicant: | Anthony Earl Skates |
Respondent: | Hills Industries Limited |
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 Gothelf and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table – Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | 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) |
| 1. Left Upper Extremity (wrist and joint of ring finger) | 7/6/13 | Chapter 2 Pages 13-15 | Figures 16.21/16.28/ 16.31 | 14% | Nil | 14% |
| 2.Scarring | 7/6/13 | TEMSKI | - | 1% | Nil | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
10
0