Hooker v Workforce Recruitment and Labour Services Pty Ltd - [2021] NSWPICMP 45

DETERMINATION OF APPEAL PANEL
CITATION:	Hooker v Workforce Recruitment and Labour Services Pty Ltd [2021] NSWPICMP 45
APPELLANT:	Tyrone Hooker
RESPONDENT:	Workforce Recruitment and Labour Services Pty Ltd
APPEAL PANEL:	Member William Dalley Dr Gregory McGroder Dr James Bodel
DATE OF DECISION:	13 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Appeal alleging error in three respects; first, the AMS had confused the mechanism of injury with that of an earlier injury; second, the AMS had failed to assess scarring in accordance with the terms of the referral and third, the AMS had suggested that the report of the independent medical expert (IME) relied upon by the appellant worker was of less weight because the AMS had concluded that the IME was ‘unlikely to be aware of the entire past history’ which was not supported by the facts in evidence; Held- the Panel accepted the first and third allegations of error, but was satisfied those errors had not affected the assessment of impairment by the AMS; the second allegation of error was clearly made out and the Panel determined an additional 1% WPI in respect of scarring, following examination by a medical assessor member of the Panel.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 December 2020 Tyrone Hooker lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr George Weisz, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 December 2020. The Medical Assessor, Dr Weisz, was at the time of assessment, appointed as an Approved Medical Specialist (AMS) and will be referred to in these reasons as “the AMS”.
The appellant relies on the ground of appeal under section 327(3)(d) 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 section 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, 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

The appellant, Tyrone Hooker, suffered a dislocation of his left shoulder in the course of his employment with Workforce Recruitment and Labour Services Pty Ltd (the respondent) on 3 November 2016 (the subject injury). Mr Hooker had previously suffered a left shoulder dislocation in 2011 in the course of his employment in a distribution centre operated by Coles. That dislocation was reduced, but Mr Hooker continued to suffer dislocations of the shoulder from time to time. His general practitioner referred him to an orthopaedic surgeon, Dr Dave, who arranged an MRI study and recommended stabilisation surgery.
Family concerns intervened and Mr Hooker did not undergo surgery at that time. He returned to work with a different employer and between 2013 and his injury in November 2016 he was engaged in active physical employment as well as engaging in an active physical fitness regime.
Mr Hooker was again referred to Dr Dave who arranged a CT scan of the shoulder and subsequently performed surgical repair on 21 March 2017. Mr Hooker continued to suffer symptoms and in February 2020 he was assessed by an independent medical expert, Dr Gehr, at the request of Mr Hooker’s solicitors for the purposes of a claim for lump-sum compensation.
Dr Gehr assessed Mr Hooker as having 21% upper extremity impairment in respect of the injury to the left shoulder on the basis of assessment of the range of motion. In accordance with the Guidelines that impairment converted to 13% whole person impairment (WPI) after rounding. Dr Gehr reduced that assessment by one tenth to allow for the pre-existing condition in the shoulder to give an assessment of 12% WPI.
Dr Gehr also assessed Mr Hooker as having 2% WPI with respect to the surgical scarring of the left shoulder. In addition, Dr Gehr assessed a further 2% WPI in respect to a peripheral nerve injury.
Mr Hooker’s representatives made a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) in accordance with Dr Gehr’s assessment.
Mr Hooker was examined by Professor William Cumming who assessed Mr Hooker as having 4% WPI in respect of the left upper extremity assessed by reference to the range of motion and 1% WPI in respect of scarring. Professor Cumming however attributed all impairments to the 2011 injury and assessed 0% WPI in respect of the subject injury.
The medical dispute was referred to the AMS for assessment of WPI in respect of the left upper extremity (shoulder) and scarring (TEMSKI) resulting from injury on 3 November 2016. Peripheral nerve impairment was not referred.
The AMS assessed 11% WPI after deduction of one tenth in respect of the pre-existing condition in the left shoulder. The AMS did not assess any impairment in respect of scarring.

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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination for the purposes of assessment of scarring as the AMS had not assessed scarring notwithstanding the terms of the referral.

EVIDENCE

Documentary evidence

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.

Further medical examination

Dr Gregory McGroder of the Appeal Panel conducted an examination of the worker on 25 March 2021 and reported to the Appeal Panel:

“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:		M1-5621/20
Appellant:		Tyrone Hooker
Respondent:		Workforce Recruitment and Labour Services Pty Ltd
Date of Determination:	30 March 2021

Examination Conducted By:	Dr Greg McGroder
Date of Examination:	25 March 2021

1.   The workers medical history, where it differs from previous records
Mr Hooker informed me that the history that Dr Weisz had outlined in his MAC from 19 November 2020 was incorrect and the injury that Dr Weisz outlined had been a previous injury.
The work related injury on 3 November 2016 was when he was collecting scraps from the floor and when he was leaning forward a trolley rolled and caught his left arm and he described it as flicking his arm upwards. The shoulder dislocated anteriorly but then as he lowered the arm it relocated.
Mr Hooker said that this was a more significant injury than his previous ones and this is the reason he was referred back to Dr Dave, Orthopaedic Surgeon. A CT scan was performed which demonstrated evidence of anterior dislocation with a Bankart lesion. He subsequently underwent surgery. He said that the surgery has been reasonably successful and he is reluctant to undergo further surgery even though he feels at some stage he may have to. Any further surgery, however, is a very complicated procedure.
2.   Additional history since the original Medical Assessment Certificate was performed
With regard to his scarring, Mr Hooker said that he is very aware of the scarring because of the fact that he has tattoos and the scarring on his left shoulder has meant that he cannot complete the tattoos as a tattoo cannot be done over scar tissue. He said that he usually wears singlets, apart from when he is at work, and the main comments he gets from people is as to why the tattoo hasn’t been finished. He is aware that the scars aren’t particularly noticeable but he said that he and other people who know anything about tattoos do notice them.
3.   Findings on clinical examination
The left arm was heavily tattooed on the lower area but less so on the shoulder area where they surrounded the surgical scars. On the anterior aspect the scar was 3cm in length and on the posterior aspect 0.7cm in length. The scars were a reasonable colour match and there was minimal contour defect. There were no suture marks and there was no adherence. He was sensitive over the scars, however.
4.   Results of any additional investigations since the original Medical Assessment Certificate
Nil.
5.   Assessment of Permanent Impairment
According to the TEMSKI scale I feel that the best fit is 1% WPI. Mr Hooker is conscious of the condition and there is minor contrast to the surrounding skin. He can easily locate the scars and it is visible when he wears singlets. There are no suture marks visible and there is no adherence. There is no effect on ADL’s and no treatment is required.
Signed:     Dr Greg McGroder
Date:       30 March 2021”

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor 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 Appeal Panel.
The appellant submitted that the AMS had fallen into demonstrable error in three respects. The appellant submitted that the history of injury recorded by the AMS was incorrect. The AMS had recorded the facts of the 2011 injury, when the mechanism of the subject injury was substantially different. The appellant further submitted that the AMS had fallen into error in failing to assess scarring in accordance with the body parts/systems referred for assessment. Finally, the appellant submitted that:
“The MAC contains a demonstrable error (section 327 (3) (d)) in that the AMS made comment that Dr Gehr was ‘unlikely to be aware of the entire past history’, at paragraph 10c. The AMS in making that statement failed to provide any form of explanation or provide any reference to any evidence to show how he had come to that conclusion and failed to give proper and adequate reasons.”
In reply, the respondent conceded that the AMS had recorded the incorrect history but submitted that no challenge was made to the assessment by the AMS of the range of motion which had been made in accordance with the Guidelines. The respondent further submitted that the observations by the AMS of the scarring in the MAC supported a finding of no impairment resulting from scarring and that the AMS’s observations with regard to the report of Dr Gehr did not give rise to any error with respect to the assessment of impairment arising from the subject injury.
The respondent further submitted that the AMS had fallen into error in assessing a deduction of one tenth pursuant to section 323 of the 1998 Act although no cross-appeal was lodged. The Panel does not consider that this is an appropriate way for a party to an appeal to raise a complaint of error as the appeal process does not allow the other party the opportunity to provide submissions in respect of the point raised unless an appeal or cross appeal is filed. The point has, however, been considered by the Panel as incidental to the first submission raised by the appellant

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[1] 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.
[1] [2006] NSWCA 284.
The parties agree that the AMS fell into error in describing the mechanism of the subject injury: “On the 30.11 .2016 whilst at work, he ‘was tightening a strap on a cage when the tension spontaneously released, causing my left arm to be flung backwards and dislocate. I popped my shoulder back into place.’”
The Panel accepts that the correct mechanism of injury is that set out at paragraph 41 of Mr Hooker’s statement:
“At approximately 9:30 AM/10 AM, I bent down to sweep up some chocolate scraps with a dustpan, when suddenly and without warning the trolley moved forward and impacted one of the connching machines to the left side of me as I was bent down. As the trolley impacted the machine, the trolley was violently flung upward, and my arm became caught between the two trays of the trolley causing it to be thrown in the air with the trolley.”
As noted by the respondent, the appellant does not submit that the AMS fell into error in performing his task of assessing WPI in the left upper extremity by way of range of motion. That assessment appears to have been made in accordance with the Guidelines and there is no reason not to accept that the assessment accurately represents the extent of upper extremity impairment present upon examination by the AMS.
The appellant’s submissions do not assist in determining in what way the incorrect mechanism of the subject injury can bear upon the overall assessment of upper extremity impairment. However, the error with respect to the mechanism of injury does potentially raise a question with regard to the assessment of the contribution attributable to pre-existing injury or condition and thus obliquely engages the point raised by the respondent in its submissions with respect to section 323 of the 1998 Act.
Consideration of the nature of the 2011 incident might be thought to be relevant to the assessment of the issue which the AMS was required to address pursuant to section 323. That section requires that the AMS consider whether a deduction is required to be made “for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.”[2]
[2] Section 323(1).
The Panel has considered whether the error with respect to the mechanism of injury could have given rise to error with respect to the deduction to be applied pursuant to section 323.
The Panel accepts that there has been at least one pre-existing injury to the left shoulder leading to a condition in that shoulder which resulted in subsequent dislocations up to 2013. The Panel accepts that from 2013 to the date of the subject injury Mr Hooker was physically active both within and outside the workplace and does not appear to have suffered any significant restriction in the use of the left arm.
The Panel has considered the respective mechanisms of injury in 2011 and the subject injury in 2016 and noted that Professor Cumming attributed the whole level of upper extremity impairment to the 2011 injury. Noting the level of activity displayed by Mr Hooper since 2013, the Panel does not accept that the level of upper extremity impairment assessed by the AMS was wholly or predominantly caused by the 2011 incident.
Although the fact that a previous injury or pre-existing condition was not symptomatic does not indicate that no deduction should be made if the evidence otherwise supports a conclusion that proportion of the impairment assessed upon examination is attributable to previous injury or existing condition[3], the Panel is satisfied in this case that in 2011 as noted in Mr Hooper’s statement and the history that followed is not at odds with a deduction of one tenth. The Panel agrees with the AMS that the extent of the appropriate deduction is difficult to determine.
[3] Western Sydney Local Health District v Chan [2015] NSWSC 1968.
That conclusion is supported by the evidence contained in Mr Hooper’s statement and given to medical practitioners that the subject injury led to a severe alteration in his levels of symptoms and the function of the left arm.
The conclusion of the Panel is that the error with respect to the mechanism of injury has not materially affected the assessment by the AMS of WPI arising from injury to the left shoulder on 3 November 2016. The Panel accepts that the AMS correctly assessed the extent of upper extremity impairment in accordance with the Guidelines and correctly converted this to the appropriate level of WPI.
The extent of the deduction pursuant to section 323 of the 1998 Act is difficult to determine and a deduction of one tenth is not at odds with the available evidence. The Panel is satisfied that the assessment of 11% WPI in respect of the subject injury to the left shoulder is not affected by error.
The Panel accepts the appellant’s second allegation of error. The AMS has not assessed scarring in accordance with the referral. The AMS relevantly commented: “there was a surgical punch scar, hardly visible because of artificial skin colour imprint; the scar was not tender, not prominent.” However, the AMS did not provide an assessment of scarring in accordance with the Guidelines.
Dr Gehr reported[4]:
“Scars, left shoulder one anteriorly measuring 2 cm and one posteriorly measuring approximately 1 cm. From WorkCover Guidelines Page 74, Table 14.1, he is conscious of the scars, noticeable colour contrast of the anterior scar, able to easily locate, suture marks apparent, anatomic location is visible with a singlet. Minor limitation in ADLs. No treatment plan. No adherence. WPI equals 2%”
[4] report dated 5 February 2020, page 16.
Professor Cummings considered scarring and reported: “I allocate on a best fit 1% WPI based on the TEMSKI scar scale as the scar is not of a usual fine line.” Professor Cumming attributed the scarring to the 2011 injury entirely.
The observations and opinion of the medical assessor member of the Panel, Dr McGroder, are noted above. The other members of the Panel accept the assessment of Dr McGroder as consistent with his observations on examination and consistent with the opinions of Dr Gehr and Professor Cumming who both felt there was rateable impairment present, although Dr Gehr assessed 2% WPI.
In the opinion of the Panel, having regard to respective opinions of Dr Gehr and Professor Cumming, the observations and assessment of Dr McGroder and the descriptors contained in Table 14.1 of the Guidelines[5], it is appropriate to assess 1% WPI in respect of scarring resulting from the subject injury. Rounding removes any deduction pursuant to section 323 of the 1998 Act.
[5] Guidelines, Table 14.1 Table for the evaluation of minor skin impairment (TEMSKI).
The third error sought to be identified by the appellant relates to the AMS’s comment with respect to the report of the appellant’s independent medical expert, Dr Gehr. The AMS noted: “Dr Gehr, orthopaedic surgeon’s assessment on 2.2020 (sic): descriptive, unlikely to be aware of the entire past history.”
Although the range of motion recorded by the AMS upon examination in December 2020 generally records a greater range of motion than that noted by Dr Gehr on examination in February 2020 and considerably greater restriction than that noted by Professor Cumming in July 2020, there is no reason to suggest that the measurement of range of motion was not carried out in accordance with the Guidelines and properly represented the range of motion exhibited by Mr Hooper on the day of his examination by the AMS. The respective ranges of motion measured by Dr Gehr and compared with the other measurements are as follows:
Flexion: 110°                   (AMS 80°; Professor Cummings 160°)
Extension: 10°                 (AMS 20°; Professor Cummings 30°)
Abduction: 30°                (AMS 60°; Professor Cummings 30°)
Adduction: 10°                (AMS 20°; Professor Cummings 150°)
External rotation 10°       (AMS 10°; Professor Cummings 40°)
Internal rotation 30°        (AMS 40°; Professor Cummings 60°).

The comment by the AMS with regard to Dr Gehr’s report does not appear to bear upon the assessment by the AMS of the range of motion in the left shoulder. The report of Dr Gehr makes it clear that he had access to a substantial body of material upon which to base his opinion and the Panel accepts that the speculation by the AMS that Dr Gehr was “unlikely to be aware of the entire past history” does not appear to be well-founded in the light of that material.
The appellant’s submission in this regard, however, does not advance beyond this point and it does not appear that the issue of whether or not Dr Gehr was aware of the entire past history played any part in the assessment of upper extremity impairment by the AMS (or by Dr Gehr). The Panel is satisfied that, to the extent that the comment “unlikely to be aware of the entire past history” is inappropriate, it has not operated to affect the assessment by the AMS of the extent of the impairment.
The Panel is satisfied that the ground of demonstrable error is made out in respect of the failure by the AMS to assess scarring in accordance with the referral. Although the other complaints are made out, they do not appear to have affected the assessment of WPI. As noted above, the Panel is satisfied that the appropriate assessment of scarring is 1% WPI in accordance with Table 14.1 of the Guidelines. The Panel accepts that the AMS assessed the extent of WPI in the left upper extremity in accordance with the Guidelines and the parties raise no submissions seeking to direct the Panel to a different conclusion.
Accordingly the Panel accepts that Mr Hooper suffered 12% WPI in respect of the left upper extremity and 1% WPI in respect of scarring as a result of the subject injury to the left shoulder. The Panel is satisfied that there was a previous injury in 2011 leading to a pre-existing condition in the left shoulder which contributed to that impairment. The evidence suggests that the left shoulder, prior to the subject injury, was in a state that allowed Mr Hooper relatively free use of the left arm and it would be difficult to assess the extent to which that previous injury and subsequent condition contributed to the overall level of impairment. A deduction of one tenth is not at odds with the available evidence. After rounding, the extent of WPI in respect of the left upper extremity is therefore reduced to 11% and the assessment in respect of scarring remains at 1%. The overall assessment of WPI resulting from subject injury is 12%.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 December 2020 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

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr George Weisz 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 (shoulder)	3/11/2016	Chapter 2, pages 10-12	Chapter 16, figure 16-40, 16-43 and 16-46	12	1/10	11%
2. Scarring (TEMSKI)	3/11/2016	Chapter 14, pages 73, 74	1	1/10	1%
Total % WPI (the Combined Table values of all sub-totals)					12%

Mr William Dalley
Member
Dr Gregory McGroder

Medical Assessor

Dr James Bodel

Medical Assessor

13 April 2021