Huynh v Ready Workforce (a Division of Chandler Macleod) Pty Ltd
[2021] NSWPICMP 43
•13 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Huynh v Ready Workforce (a Division of Chandler Macleod) Pty Ltd [2021] NSWPICMP 43 |
| APPELLANT: | Tri Dung Huynh |
| RESPONDENT: | Ready Workforce (a Division of Chandler Macleod) Pty Ltd |
| APPEAL PANEL: | Member Deborah Moore Dr James Bodel Dr David Crocker |
| DATE OF DECISION: | 13 April 2021 |
CATCHWORDS: | WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) erred in his manner of assessment of the right foot and ankle; Held- the Panel agreed, but the ultimate WPI % remained the same; error by the MA in neglecting to assess scarring, but parties agreed on 3% WPI prior to the Panel’s assessment; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 November 2020 Tri Dung Huynh lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 30 October 2020.
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 ground(s) 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).
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 it was not necessary for the worker to undergo a further medical examination because although it was requested because the Medical Assessor (MA) failed to assess scarring, the parties have agreed that the appellant suffers from 3% whole person impairment in relation to that body part, and the Panel will combine that agreed assessment with our assessment of permanent impairment of the right lower extremity.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in a number of respects, namely:
(a) amputation of the 4th and 5th toes;
(b) his assessment of sensory dysfunction of the right foot;
(c) his assessment of ankle impairment, and
(d) scarring to the right foot.
In reply, the respondent concedes the error with respect to scarring, and also some other issues raised in the appeal, and we will refer to these more fully below.
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 was referred to the MA for assessment of whole person impairment (WPI) in respect of the right lower extremity (foot) resulting from an injury on 11 September 2017.
The MA took a history of the incident, adding:
“He was taken by ambulance to Westmead Hospital and came under the care of Specialist Foot and Ankle Surgeon, Dr Scott Newman. It was not possible to save the 4th and 5th toes and they were formally amputated that night. There was extensive soft tissue injury over the dorsum of the foot and this necessitated a similarly extensive graft which was taken from the right thigh.
Some 6 months later in early March 2018, internal fixateurs were removed. There were also 4 further subsequent surgical procedures.”
Present symptoms were described as: “He has a lot of pain in the right foot. He cannot stand for long and he cannot walk properly. Stairs are extremely difficult and so is moving uphill.”
Findings on physical examination were reported as follows:
“Mr Huynh walked with a lurching limp. He was quite unable to stand on his toes or heels or to squat.
The severity of the injury to his right foot was very obvious with extensive grafting over the dorsum of the foot and the loss of the 4th and 5th toes. There was virtually no movement of the remaining toes, which effectively were ankylosed at the metatarso-phalangeal joint and also throughout the rest of the toe joints. With the 3rd toe, there was a fixed flexion deformity of 90° at the proximal inter-phalangeal joint.
There was extensive scarring, particularly over the dorsum of the foot where there was no sensation.
Sensation over the dorsum of the foot was grossly reduced in the distribution of the superficial peroneal nerve.”
After reviewing the radiological material, the MA summarised the injuries as follows:
“Mr Huynh experienced a very severe crush injury to his right foot in September 2017. This caused extensive bony and soft tissue damage, particularly on the lateral side. This necessitated amputation of the 4th and 5th toes. The remaining severe injuries were mostly handled surgically.
Mr Huynh has reached a stable condition although continues to have gross dysfunction of the right foot and ankle complex. There is a very obvious and unsightly scar over the dorsum of the right foot.”
The MA assessed 11% WPI. He said:
“There is virtual ankylosis of the hallux and 2nd toes. This is addressed on Page 543 of AMA 5, Table 17-30. With the hallux and 2nd toe in a position of function, this gives him 11% lower extremity impairment.
In the same table, the ankylosis of the 3rd toe in flexion gives 2% lower extremity impairment.
Amputation of the 4th and 5th toes gives 2% lower extremity impairment each.
The involvement of the superficial peroneal nerve is addressed in AMA 5 Page 552, Table 17-37. The maximum sensory dysfunction is 2% lower extremity impairment. This is modified by Table 16-10 on Page 482. Grade II with 80% involvement is selected which technically gives a lower extremity impairment of 1.6%, which is rounded up to 2% lower extremity impairment.
The lower extremity impairment figures of 11, 9, 2, 2, 2 and 2 are combined using the Combined Values Chart which gives 27% LEI. From Page 527, Table 17-03, this converts to 11% WPI.”
In commenting upon the other medical opinions, the MA said:
“Specialist Orthopaedic Surgeon, Dr Mathew Giblin arrives at a whole person impairment of 18%. This also includes 3% for scarring. Specialist Orthopaedic Surgeon, Dr John Bosanquet arrives at a bit less at 14%, although this still includes 3% for scarring. In taking the scarring away, these figures are not all that different to mine.”
Dealing firstly with the amputation of the 4th and 5th toes, the appellant submits:
“The amputation values of 2% lower extremity impairment used by the AMS are incorrect. The amputation values for amputation of the 4th and 5th toes under Table 17-32 on page 545 of the AMA 5 Guides are 5% lower extremity Impairment each not 2%. The value of 2% under Table 17-32 relates to the whole person impairment value not the lower extremity value which is 5%.
The AMS should have used the values of 5% lower extremity impairment each as the amputation values for the 4th and 5th toes.”
This is incorrect.
The 4th toe, or “ring toe” and 5th toe or “little toe” are classified as the “lesser toes” in Table17-32. Accordingly, the appropriate lower extremity impairment allowance is 2% as noted by the MA.
Dealing next with the assessment of sensory dysfunction of the right foot, the appellant submits:
“The maximum sensory dysfunction value for the superficial peroneal nerve of 2% lower extremity impairment is incorrect.
The maximum sensory dysfunction value for the superficial peroneal nerve under Table 17-37 on page 552 of the AMA5 Guides is 5% lower extremity impairment not 2% lower extremity impairment.
The AMS should have used the correct maximum value of 5% lower extremity impairment and multiplied this by 80% which would have resulted in a calculation of 4% lower extremity impairment for the workers impairment due to sensory dysfunction of the superficial peroneal nerve had the correct figure been used.”
We agree.
The respondent also concedes that the maximum sensory dysfunction for the superficial peroneal nerve is 2% WPI or 5% lower extremity impairment.
The respondent adds:
“The Respondent submits that the assessment arrived at by the Approved Medical Specialist is consistent with that of Dr Giblin and Dr Bosanquet. Accordingly, the Respondent submits that there would be no reason to interfere with the Approved Medical Specialist’s assessment or allowance in this regard.”
Irrespective of those opinions, we accept that the MA erred in his calculations with respect to the sensory dysfunction of the right foot.
Turning now to the assessment of ankle impairment, the appellant submits:
“The MA recorded that on examination of the worker’s right ankle, there was 20 degrees of inversion of the right ankle…he recorded that 20 degrees of Inversion of the Right Ankle was 0% lower extremity impairment.
The value of 0% lower extremity impairment for 20 degrees of right ankle inversion is incorrect. Under Table 17-12 on page 537 of the AMA5 Guides, 20 degrees of hindfoot inversion is 2% lower extremity impairment.
The MA then used the incorrect value of 0% lower extremity impairment for inversion of the right ankle to calculate 9% lower extremity impairment for the right ankle due to loss of range of movement which he then used to calculate the final whole person impairment value.”
The respondent acknowledges that Table 17-12 of AMA 5 indicates that there would be a 2% lower extremity impairment allowance associated with 20 degrees of hind foot inversion.
Again, we agree.
The correct total for impairment of the right ankle due to loss of range of movement should in fact be 11%.
The MA used lower extremity impairment figures of 11, 9, 2, 2, 2 and 2 which combined gave a lower extremity impairment of 27%
The correct figures are 11, 11, 4, 2, 2, 2, which give a combined figure of 28%
This still gives an overall WPI of 11%
Combining this with the impairment for scarring of 3%, the total WPI is 14%.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 October 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 Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
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. Right lower extremity | 11/09/17 | Chap 3 P 13 | P 537 T 17-11 and 12 P 522 T 17-37 P 527 T 17-03 P 543 T 17-30 | 11% | 0 | 11% |
| 2. Scarring | 11/09/17 | Chapter 14; pp 73-75 | 3% | 0 | 3% | |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
Ms Deborah Moore
Member
Dr James Bodel
Medical Assessor
Dr David Crocker
Medical Assessor
13 April 2021
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