Killick v Australian Piling Group Pty Limited
[2022] NSWPICMP 32
•2 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Killick v Australian Piling Group Pty Limited [2022] NSWPICMP 32 |
| APPELLANT: | Jake Killick |
| RESPONDENT: | Australian Piling Group Pty Limited |
| APPEAL PANEL: | Member John Wynyard Dr Tommasino Mastroianni Dr Roger Pillemer |
| DATE OF DECISION: | 2 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from finding of 11% whole person impairment (WPI) for injury to hips, back and for scarring; error in calculation of hip entitlement conceded by respondent; whether lumbar DRE I appropriate where claimant buried when an earth wall collapsed on him, and where he still complained of back symptoms; whether 1% finding for scarring appropriate when criteria present to suggest 2% or more; Held- calculation of conceded error incorrect and increased; DRE I category confirmed, as Medical Assessor (MA) aware of complaints and no DRE II criteria satisfied; MA satisfied requirement to explain his scarring assessment in view of the nice distinction between the claimant being able to locate the scar, and being able to ‘easily’ locate the scar; Medical Assessment Certificate (MAC) revoked and fresh MAC issued for 22% WPI. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 November 2021 Jake Killick, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Cyril Wong, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 19 November 2021.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 12 October 2021 this matter was referred to the MA for a WPI assessment of injuries to the lumbar spine, left lower extremity (hip), right lower extremity (hip) and scarring – TEMSKI, which occurred on 23 May 2018.
Mr Killick was employed as a piling operator when on 23 May 2018 when an earth wall next to which he was crouched collapsed on him. He was buried from the shoulder down and had to dug out.
He was taken to Gosford Hospital where a diagnosis of a dislocated left hip was made and he was transferred then to Royal North Shore Hospital, where he underwent an open reduction with internal fixation of the left hip on 24 May 2018.
He also had soft tissue injury to his ankles and his right knee.
Since the accident, he has also had lower back pain and mid thoracic pain. He has developed pain in his right hip region over the last ten months.
The MA certified a WPI 6% for the left lower extremity, 4% to the right lower extremity, 1% for scarring and nil for the lumbar spine, resulting in a combined total of 11% WPI.
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.
The appellant requested that he be re-examined by a member of the Appeal Panel, however for the reasons given below, and notwithstanding that a demonstrable error has been conceded by the respondent, the resolution of the dispute did not require a re-examination. The issue concerned the correct application of the relevant criteria. The grounds that the MA fell into error in his assessment of the lumbar spine and scarring we found not to be made out.
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.
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 which have been considered by the Appeal Panel.
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.
This appeal raised three issues. It was alleged that the MA misapplied the guidelines and thus relied on incorrect criteria in relation to the calculation of WPI for the hips, the lumbar spine, and the scarring following the left hips surgery.
The MAC
In his findings on physical examination, the MA reproduced the table of his measurements regarding the hips as follows:[1]
[1] Appeal papers p 23.
(AMA5 T17-9)
Right°
LEI %
Left°
LEI %
Flexion
80
5
65
4
Lack of Extension
OK
0
Ok
0
Abduction
35
0
10
4
Adduction
10
2
10
2
Internal Rotation
30
0
0
4
External Rotation
30
2
25
2
Sum LEI
Right
9 LEI
Left
LEI
Conversion to WPI
Right
4% WPI
Left
6%WPI
In relation to the lumbar spine, the MA said:[2]
“Mr Killick walked normally and was able to walk on his heels and on tip toes. Examination of the lumbosacral spine revealed normal alignment. There was no localised tenderness or muscle guarding or spasm. The range of movement was at 2/3 normal at flexion and extension. Lateral flexions were normal. Neurological examination was normal with no sensory or motor deficits. The lower limb reflexes were normal and symmetrical.”
[2] Appeal papers p 23.
In relation to scarring on examination the MA found[3]:
“Scarring - There was a 25cm curved but main longitudinal incision that had healed well with good colour match. It is not visible in normal clothe. Mr Killick could locate the scar easily and conscious of the scar as the scar was sensitive to touch. There is no pain with it.
Scarring was rated TEMSKI 1% WPI being the best fit category to the characteristics of the scars detailed in this report (SIRA4 T14.1).”
[3] Appeal papers p 23.
APPELLANT’S SUBMISSIONS
The hips
The appellant alleged the MA had fallen into error in three respects. Firstly, he had incorrectly applied the provisions of Table 17-9 of AMA 5 when assessing the lower extremity impairment attributable to the range of motion in the hips. The measurements recorded by the MA were not challenged.
It was alleged that on the correct application of the Table, the lower extremity impairment (LEI) restriction of bilateral flexion in the hips should have resulted in 10% (left) and 5% (right), whereas the MA found there to be 4% and 5% respectively.
In relation to the hip abduction, the correct application of Table 17-9 would have been 0% (right) and 10% (left) LEI, and not 0% and 4% respectively as the MA recorded.
Similarly, it was alleged that the bilateral adduction should have yielded a 5% LEI restriction bilaterally, and not the 2% allowed by the MA in his table.
It was submitted further that the left sided internal rotation restriction yielded a 10% LEI assessment, not the 4% allowed by the MA.
External rotation measured should have yielded a lower extremity impairment of 5% LEI bilaterally, and not 2%.
Table 17-9 is drawn up to yield three classes of impairment – mild, moderate, and severe. It indicates two methods of assessment – WPI and, in brackets the LEI. Thus the mild category is describes as “2% (5%),” the moderate as “4% (10%)” and the severe as “8% (20%).”[4]
[4] AMA 5 p 537.
It was submitted that the MA had incorrectly interpreted Table 17-9 by using the WPI rather than the LEI figures. Chapter 17.2a of AMA 5 provides that the LEI is to be applied to the restrictions of motion in Mr Killick’s case, and the failure to do so by the MA constituted appellable error, we understood the appellant to submit.
Table 17-3 provides for the conversion of LEI to WPI.[5] The MA accordingly miscalculated the WPI because he converted the WPI figure that he erroneously applied in Table 17-9, by using Table 17-3, the appellant asserted.
[5] AMA 5 p 527.
The appellant kindly drew up a table which he said reflected the accurate application of the criteria.
Lumbar spine
With regard to the lumbar spine, Mr Killick submitted that the MA fell into error by prescribing a DRE 1 category to that injury.
The appellant reproduced the clinical findings by Dr Wong which we have reproduced above. The appellant emphasised the finding that “the range of movement was at 2/3 normal at flexion and extension.”
We were referred to the applicable criteria in Table 15-3 of AMA 5 and it was submitted that the DRE 1 category did not apply because the definition included the phrase “no other indication of impairment related to injury or illness” was included.
It was submitted that the MA should have assessed at least a DRE 2 category.
Scarring
As to the TEMSKI scarring assessment by the MA, we were referred to his clinical findings on physical examination. It was accordingly “abundantly clear” that the scarring fell between 1% - 2% WPI. The appellant relied on the MA’s findings that the appellant could locate the scar easily and that it was sensitive to touch. This made it “incumbent upon the AMS” to select the percentage that constituted the “best fit” and to give reasons why one category was chosen over the other.
We were referred to Chapter 14.8 of the Guides.[6] Mr Killick submitted that his qualified expert, Dr Mendelsohn, gave a better application of the TEMSKI criteria in his finding of 2% WPI.
[6] Guides p 73.
RESPONDENT’S SUBMISSIONS
The hips
The respondent conceded that the MA had fallen into error and accepted the table that appellant had drawn up in substitution showing the entitlement of 14% WPI.
The lumbar spine
The respondent submitted that the examination by the MA did not reveal any of the criteria required under lumbar DRE II as set out in Table 15-3 of AMA 5.
It submitted further that a lumbar DRE I was also assessed by Dr Haig, the respondent’s medico-legal specialist.
Scarring
The respondent again relied on the assessment by Dr Haig of 0%, supporting his assessment that Mr Killick had an uncomplicated scar for a standard surgical procedure, in conformance with the provisions of “Chapter 13 paragraph 14” of the Guidelines (we presume the respondent meant Chapter 14.6)..
In the alternative, the respondent submitted the two criteria relied on by the appellant should appropriately attract a 2% WPI.
DISCUSSION
The hips
We note the concession by the respondent that the MA had applied incorrect criteria. The concession is well made, although the calculation of Mr Killick’s entitlement by the appellant we find to be inaccurate insofar as it applies to the left hip. Table 17-3 of AMA 5 in fact provides that 40% LEI should yield 16% WPI.[7]
[7] AMA5 p 527.
We shall accordingly revoke the MAC to reflect that conceded application of incorrect criteria.
Lumbar spine
The criteria for rating impairment due to a lumbar spine injury is set out in Ttable 15-3 at page 384 of AMA 5.
The criteria for DRE I lumbar category is:
“No significant clinical findings, no observed muscle guarding or spasm, no documentable neurologic impairment, no documented alteration in structural integrity, and no other indication of impairment rated to injury or illness; no fractures”
The criteria for category II is, relevantly:
“Clinical history in examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or no verifiable radicular complaints defined as complaints of radicular spine without objective findings; no alteration to the structural integrity and no significant radiculopathy.”
It can be seen that the MA’s examination of the lumbar spine did not identify any criteria which would automatically have triggered a DRE II classification. It was not suggested that the limitation of the range of movement at 2/3rd normal for flexion and extension was asymmetric. On a strict interpretation of the DRE II criteria, we do not see that the MA made any error.
In view of the nature of the injury and Mr Killick’s continued complaints of mild to moderate pain however, the submission by the appellant that it could not be said that there was “no other indication of impairment related to injury or illness” was reasonably made. However, the MA was aware of the circumstances of the injury, and of Mr Killick’s complaints. His conclusion was open to him. That other reasonable minds may differ does not raise any more than a mere difference of opinion in these circumstances, and no demonstrable error has been established.
Scarring
The criteria for the evaluation of minor skin impairment are set out at Table 14.1 of the Guides.[8] The table sets out five categories, each of which gives either a 0%, 1%, 2%, 3 – 4% or 5 – 9% WPI depending on the criteria that is identified in each category.
[8] Guides p 74.
The criterion that the claimant was “able to easily locate the scar” is limited to the qualification for a finding of and above the 2% WPI category.
The criterion that “the claimant is conscious of the scar” is common to all categories except the 0% WPI category.
As there is such a commonality of criteria between the various categories, there is a wide discretion is vested in an MA to pick the appropriate level of impairment.
This is acknowledged within the Guides by the footnote at Table 14.1:
“This table uses the principle of ‘best fit’. You should assess the impairment to the whole skin system against each criteria (sic) and then determine which impairment category best fits (or describes) the impairment. Refer to 14.8 regarding application of this table.”
Chapter 14.8 provides:[9]
“14.8 The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.”
[9] Guides p 73.
The MA was criticised for not providing detailed reasons as to why he had picked 1% WPI as the best fit. We note that there is a distinction between the 1% and higher categories in that where ‘a claimant is able to easily locate the scar’ the higher categories apply, whilst the 1% category requires only that the claimant “is able to locate the scar.” This nice distinction technically satisfies the injunction in Chapter 14.8 that a detailed explanation be given, but where the distinction is so minor, the explanation by the MA that he rated the scarring according to the best fit requirements of the Guides we find to be compliant with Chapter 14.8 of the Guides.
The parties compared the MA’s assessment with those made by their various medico-legal specialists. However, an MA is required to make his assessment on the basis of his training, experience, qualifications and his expertise. He has no obligation to follow any expert opinion that is before him, and indeed is required to ignore such opinion if the application of his judgment differs[10].
[10] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [47].
Accordingly for these reasons the Appeal Panel has determined that the MAC issued on 19 November 2021 should be revoked and a fresh certificate 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 Cyril Wong, 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 AMA5 Guides | % WPI | % WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar spine | 23/05/18 | Chapter 4 Pages 24-29 | Chapter 15 Page 384 Table 15-3 | 0% | Not applicable | 0% |
| Left lower extremity (hip) | 23/05/18 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523- 564 | 16% | nil | 16% |
| Right lower extremity (hip) | 23/05/18 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523- 564 | 6% | nil | 6% |
| Scarring TEMSKI | 23/05/18 | Chapter 14 Pages 73-74 | 1% | nil | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
John Wynyard
Member
Dr Tommasino Mastroianni
Medical Assessor
Dr Roger Pillemer
Medical Assessor
2 March 2022
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