Licina v Secretary, Department of Communities and Justice
[2023] NSWPICMP 428
•4 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Licina v Secretary, Department of Communities and Justice [2023] NSWPICMP 428 |
| APPELLANT: | Clare Ruth Licina |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 4 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against finding of 8% for ankle and nerve injury; whether Medical Assessor (MA) had failed to consider evidence; whether MA should have considered complex regional pain syndrome (CRPS); whether MA had erred in assessment of scarring; whether section 324 power should have been exercised; whether reasons adequate; whether appellant entitled to lodge further submissions; Held – appeal dismissed; observations on policy regarding multiple submissions being lodged; Practice Direction 16(12) considered; regulation 128(1) Personal Injury Commission Rules considered; section 42 of the Personal Injury Commission Act 2020 considered; recommendation that President’s delegate reject such multiple submissions as inimical to proper administration of the work of Appeal Panels; MA presumed to have read and considered material before him/her; Jones v Registrar, Bojko v ICM Property Service Pty Ltd considered and applied; CRPS excluded from referral by agreement; scarring had not been referred to the MA: section 324 submission unexplained and incomprehensible; reasons detailed and adequate; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 April 2023 Clare Ruth Licina, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 March 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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.
Rule 128 of 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) 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 17 February 2023 Consent Orders were made and on 20 February 2023 the delegate of the President referred this matter to the Medical Assessor seeking an assessment of WPI caused to the left lower extremity (ankle, sural nerve and peroneal nerve) by injury on 8 February 2018.
Ms Licina was employed by Secretary, Department of Communities and Justice (the respondent) as a Parole Officer/Team Leader and on 8 February 2018 suffered injury when stepping down a step whilst doing a home visit. She experienced a popping sensation in her right ankle with pain in her calf and ankle.
She attended Campbelltown Hospital the same day.
She was diagnosed at that time as having a tendo-Achilles injury as well as peroneal tendonitis.
She had experienced considerable improvement since, but her symptoms never really settled.
On 10 April 2020 after she had been able to return to running and whilst she was doing so, she significantly aggravated the symptoms in her left heel, calf and foot and has experienced ongoing problems since.
The Medical Assessor assessed 8% 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 Procedural Direction PIC7.
Ms Licina requested a re-examination by a Medical Assessor who was a member of the Appeal Panel. However, for the reasons given below no demonstrable error was found and hence no re-examination was required.
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.
The MAC
At [7] of the MAC, the Medical Assessor gave the following diagnosis:[1]
“As far as diagnosis is concerned, she does have residual restriction of ankle movements on the left side, as well as evidence of nerve root involvement on both medial and lateral aspects of her left leg. These would seem to involve the saphenous nerve on the medial side and either the common peroneal nerve (sensory) or the sural nerve on the lateral side.”
[1] Appeal papers page 33.
His opinion was set out at [9]:[2]
“My opinion is based on the clinical history obtained, my findings on clinical examination, examination of the investigations and results thereof, as well as my review of the accompanying documents.”
[2] Appeal papers page 34.
At [10a] the Medical Assessor set out in detail the basis of his assessment and the guidelines upon which they were made – both from AMA 5 and the Guides themselves.
The MAC has a templated section at [10c] wherein the Medical Assessor is invited to make “brief comments” regarding the material before him.
The Medical Assessor set out five paragraphs in considering those opinions. He explained that he disagreed with the opinion of Dr Bodel, saying that he found a full range of movement whereas Dr Bodel had found some impairment in the range of movement.
The Medical Assessor said that he had therefore given a lower extremity impairment of 12% rather than the 18% found by Dr Bodel.
As to scarring the Medical Assessor said:[3]
“Dr Bodel suggested an additional 1% WPI for scarring, whereas I was unable to clearly visualise the scar at all without very careful inspection.
Dr Bodel suggested a figure of 11% WPI, which is higher than the figure that I have suggested.”
[3] Appeal papers page 34.
The Medical Assessor also considered the reports of Dr Powell, whose assessment he found to be similar to his own.
He noted the methodology used by Dr Lunz and Dr O’Carrigan which did not suggest any impairment. He further noted a report of Dr Granot of 23 May 2022 which suggested the figure of 3% WPI for the neurological involvement. The Medical Assessor said:[4]
“There are additional reports of Dr D Lunz and Dr T O’Carrigan not suggesting figures of impairment and a report of Dr R Granot (neurologist) of 23 May 2022 suggesting figures of 3% WPI for the neurological involvement, and then combining this with Dr Bodel’s to give a total figure of 14% WPI.”
[4] Appeal papers page 11.
SUBMISSIONS
The appellant set out six grounds of appeal.
Ground 1
The first ground alleged that the Medical Assessor had “failed to properly assess neurological involvement of the lower limb,” or otherwise did not correctly assess WPI.
It was alleged that there was some ambiguity in the Medical Assessor’s comments at [10c] of the MAC where he referred to the opinions of other medical specialists.
Ms Licina submitted it was unclear whether the Medical Assessor was combining the two figures of Dr Bodel and Dr Granot or whether he was adhering to his “earlier apparent departure from the observations of Dr Bodel.”
Ground 2
Ms Licina submitted that the Medical Assessor should have assessed 1% for scarring because he “conceded scarring was visible”. He did not use the terminology of Table 14.1 of the Guides, whether the scarring was “barely distinguishable”.
It was submitted that the language used by the Medical Assessor – “unable to clearly visualise” - did not conform to that criterion.
Ground 3
Ground 3 alleged that the Medical Assessor had “failed to give consideration” to the “supplementary report of Dr Granot of 11 January 2023.”
Ms Licina submitted that Dr Granot “to some degree” confirmed the correctness of his earlier opinion, except that he rated the abnormality described in his original report on the basis of CRPS.
It was submitted that whilst the Medical Assessor was required to exercise his own judgment, he is also bound to have regard to the documents referred to him for consideration.
Ground 4
Ground 4 asserted a failure by the Medical Assessor to “give consideration to supplementary report of Dr Patel of 26 August 2022” which had been referred to in Dr Granot’s report of 23 May 2022.
It was submitted that it was “of some note” that by ignoring both Dr Patel’s and Dr Granot’s reports, the error by the Medical Assessor “is compounded”.
Ms Licina submitted that the nerve conduction studies referred to in “this report” was “clearly a relevant matter”. Further, it was submitted that this material would have been relevant to the assessment of neurological involvement in the lower limb as submitted in ground 1.
Ground 5
Ground 5 alleged that the Medical Assessor had failed to exercise his power under s 324 of the 1998 Act to clarify matters as to whether conduction studies, “given this was a significant issue”.
Ground 6
Ground 6 submitted that there had been a failure to give adequate reasons “regarding evidence and/or assessment of WPI.”
Ms Licina said that by ignoring the evidence “which could only be regarded as crucial” a “separate species of legal error” was establish in that there had been failure by the Medical Assessor to give adequate reasons.
Under this ground Ms Licina also submitted it was unclear what methodology was deployed by the Medical Assessor in relation to his WPI assessment, which Ms Licina acknowledged had been the subject of ground 1.
In conclusion it was submitted, as indicated above that the grounds are injury related and that therefore the MAC should be revoked.
Respondent
The respondent referred to the nature of the dispute as set out in the dispute notices and submitted that the Consent Orders did not include a request for an assessment of complex regional pain syndrome and did not include a consequential injury to the left knee but rather the referral, as indicated above, referred specifically to the sural nerve and the peroneal nerve.
The referral was consequently clearly defined by agreement between the parties to be confined to those that had been in fact referred to the Medical Assessor.
The respondent then replied to each ground seriatim. It is not necessary to outline the respondent’s submissions further in that regard, as we have largely incorporated them into the discussion as to the appellant’s case below.
Generally, the respondent submitted that the Medical Assessor’s reasons were clearly and unambiguously set out, and that Ms Licina had selectively chosen excerpts out of context.
We were referred to authority which established that Ms Licina was required to demonstrate there was an error which was really apparent on the face of the record, which she had not made out.[5]
[5] Mahenthirarasa v State Rail Authority Of New South Wales [2008] NSWCA 101 at [37]; Sydney Trains v Batshon [2021] NSWCA 14.
An unusual development
We were then surprised to find further submissions made by the appellant, described as “Submissions in reply”.
We would observe that in proceedings before Medical Appeal Panels, the usual practice regarding written submissions is that each party sets out its case by way of an exchange of written submissions contained in the application and response. The template makes no provision for there to be anything more than one exchange of submissions.
Practice Direction 16(12) commenced on 1 January 2020, and provides:
“Submissions
12. All submissions must:
(a) clearly and succinctly address each ground of appeal;
(b) be divided into numbered paragraphs with appropriate subheadings, which separately address each ground of appeal;
(c) include references to relevant legislation and case authorities, together with the relevant section, page or paragraph reference;
(d) include the relevant page or paragraph reference to the evidence;
(e) identify whether the worker should be re-examined by a member of the Medical Appeal Panel, and, if so, provide reasons why, and
(f) identify whether the matter should proceed to a hearing before the Medical Appeal Panel, and, if so, provide reasons why.”
It can be seen that no provision was made for the continual exchange of submissions, however such a practice is inimical to the proper administration of an Appeal Panel’s work. Division 13.3 of the Person Injury Commission Rules 2021 is entitled “Panel Review Proceedings”, and Regulation 128(1) provides:
“(1) A panel for panel review proceedings is to conduct and determine the proceedings in accordance with procedures determined by the panel.”
There are no regulations governing this particular aspect of an Appeal Panel’s work. However, s 42 of the Personal Injury Commission Act 2020 provides:
“(1) The ‘guiding principle’ for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2) The Commission must seek to give effect to the guiding principle when it-
(a) exercises any power given to it by this Act or the Commission rules, or
(b)interprets any provision of this Act or the Commission rules.
(3) Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission-
(a) a party to proceedings in the Commission,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.
(4) In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.”
As a matter of policy, the unlimited exchange of submissions would severely curtail the above objects. Accordingly, in our view such additional submissions should be rejected at the stage when the Application to Appeal is before the President’s delegate.
Appellant’s “submissions in reply”
In this case we found Ms Licina’s first additional submission to be simply argumentative without advancing the substantive grounds set out in her initial submissions.
The second additional submission argued that the condition of complex regional pain syndrome was “not beyond the jurisdiction” of a Medical Assessor to determine. Such an averment is, with respect, self-evident. Chapter 3.35 specifically permits the assessment of complex regional pain syndrome and authorises the methodology contained in Chapter 17 of the Guides for that purpose. Chapter 17.5 contains Table 17.1, which sets out the criteria necessary to establish that syndrome.
Ms Licina however then proposed that “the nature of [complex regional pain syndrome] therefore was exactly what the MA [Medical Assessor] had to determine.” (As written.) The referral simply limited the body parts or systems which were the subject of the medical dispute, and the terms of the referral were not concerned with the condition within the body part or system so referred.
Ms Licina conceded that the inclusion of a particular pathological condition in a referral could be appropriate, but in her case, “it was simply not done.” Accordingly, it was argued, “whatever condition may have existed in the referred body parts had to be assessed by the MA.”
Thus, declared Ms Licina, the condition of CRPS was “intra vires” the referral. The fact that Dr Granot had amended his diagnosis to that of CRPS did not, it was submitted, detract from his initial opinion that there had been a peripheral nerve assessment. It followed that therefore there was an “overlap of considerations.”
Respondent reply to the additional submissions of the appellant
The respondent then put on further submissions described as “Submissions addressing the appellant worker’s submissions in reply”.
Our reasoning reflects those submissions and there is no utility in repeating them.
Appellant’s “further submissions”
Nonetheless, Ms Licina then put on further submissions in support of her right to expect procedural fairness in a situation where the rules were silent as to procedure. It can be seen that we have considered Ms Licina’s additional submissions of a substantive nature, but have also found that such a practice should be rejected by the President’s delegate.
DISCUSSION
The appeal must be dismissed.
We find no ambiguity in the Medical Assessor’s comments regarding other medical opinions and findings. When the Medical Assessor referred to the 23 May 2022 report of Dr Granot, he was merely quoting what Dr Granot had to say. Dr Ron Granot was a neurologist retained by Ms Licina to provide a medico-legal opinion.[6] At [27] of the report of Dr Granot recorded the following:
“27. We further asked that you provide our clients combined whole person impairment take into consideration Dr Bodel’s assessment, with the use of percentage terms.
Combining 11% and 3% equates to 14% total Whole Person Impairment as per the combined values chart.”
[6] Appeal Papers page 102.
In his later report of 11 January 2023, Dr Granot said:[7]
“As per my original report, I would combine my assessment with that of Dr Bodel to equate to 14% Whole Person Impairment.”
[7] Appeal papers page 117.
The suggestion that in quoting another specialist’s opinion the Medical Assessor had not correctly assessed WPI was, with respect, fanciful. Ms Licina’s submission was made without a proper appreciation of the context in which the impugned comment was made.
The submission by Ms Licina regarding the assessment for scarring may be put to one side, as there was no referral for assessment of scarring, and neither was one made in the Table 2 Assessment Certificate.[8]
[8] Appeal papers page 36.
Ms Licina’s premise for her submission that the 11 January 2023 report of Dr Granot had not been considered was, we presume, that because the Medical Assessor did not specifically refer to that report, he had failed to consider it. To succeed in that submission Ms Licina needed to overcome the presumption of regularity that attends administrative decisions.
In Jones v Registrar Workers Compensation Commission[9] James J said at [50]:
“…There is a presumption of regularity that the AMS [now Medical Assessor] had performed such tests as might be required to determine whether the range of motion in the cervical spine was symmetrical or asymmetrical. The medical science the second defendant [the AMS] was applying was not controversial and his reasons were not required to be extensive or detailed.”
[9] [2010] NSWSC 481.
James J had earlier referred to the presumption of regularity at [36], adopting the dicta of the Court of Appeal in Bojko v ICM Property Service Pty Ltd.[10]
[10] [2009] NSWCA 175.
We accordingly presume that the Medical Assessor read and considered the material that had been referred to him, such being a requirement of his position. Presumptions can of course be rebutted, but the argument advanced by Ms Licina fails to do so. In the first place, it is unlikely that the Medical Assessor would have placed any weight on the 11 January 2023 report of Dr Granot, as Dr Granot altered his opinion and advised that Ms Licina’s abnormality had been caused on the basis of CRPS, when his report of 23 May 2022 diagnosed left sural neural and left proximal peritoneal nerve injuries.[11] In the second place, Dr Granot himself had concluded that his diagnosis of CRPS did not comply with the criteria needed to satisfy such a diagnosis pursuant to Table 17.1 of the Guides.
[11] Appeal papers page 108.
We also had some difficulty with Ms Licina’s argument that the Medical Assessor had not given consideration to the 26 August 2022 report by Dr Patel. There was no such report before the Medical Assessor. Dr Granot in his report of 11 January 2023 referred to a report by Dr Patel as being “documentation reviewed,” noting that nerve conduction studies have been performed, and that:[12]
“… All studies are within normal limits and symmetrical.”
[12] Appeal papers page 116.
We assume that Dr Patel was the radiologist concerned in the nerve conduction study.
Whilst Ms Licina asserted that the Medical Assessor had “ignored” Dr Granot’s report, a submission that we have just rejected, we were unable to see just how either the 11 January 2023 report of Dr Granot or the report of Dr Patel assisted her case. Although she stated that the nerve conduction studies were clearly relevant, they were stated by Dr Granot to have been within normal limits, and we were somewhat puzzled by this submission.
Ms Licina did not explain why s 324 of the 1998 Act was relevant. Whilst we agree that nerve conduction studies were relevant and significant in Ms Licina’s case, we did not understand why nerve conduction studies that were reported as being within normal limits and symmetrical should be the subject of any application of this section. Section 324 has four subsections describing different powers, and the failure to explain this submission deprives it of any substance.
There is also no substance to the final submission in the original submissions by Ms Licina that the Medical Assessor had failed to give adequate reasons. We have referred to the duty of a Medical Assessor to give reasons, and the standard to which he must do so in our reference to Vegan, above.
We find no error in the MAC which we find to be an exemplary example of a Statement of Reasons. The Medical Assessor gave a thorough and detailed analysis of the evidence and the issues that he was called upon to determine in accordance with the referral.
As to the submissions “in reply” by Ms Licina, the contention that the referral authorised an assessment on the basis of CRPS is also dismissed. Ms Licina can only have been turning a blind eye to the terms of the consent orders contained within the Certificate of Determination dated 17 February 2023.[13] Relevantly, they stated:
[13] Appeal papers page 38.
“2. In the Application to Resolve a Dispute, under 'injury details' amend the Injury Description/Cause of Injury to:
Injury to the left foot, left ankle
and Complex Regional Pain Syndromesustained during the course of employment, and consequential injury to theleft kneesural nerve and peroneal nerve.3. The applicant is remitted to the President for referral to a Medical Assessor (MA) pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a.Date of Injury: 8 February 2018
b.Body systems/parts: left lower extremity (ankle, sural nerve, and peroneal nerve)
c.Method of assessment: whole person impairment…”
The form of the consent order had been drawn up by the solicitors involved on both sides of the record and the fact that the reference to complex regional pain syndrome and left knee had been struck through makes it clear that there had been some controversy about the terms of the order prior to its being lodged with the Registry. It is unfortunate that the parties chose to take such a casual approach to such an important matter and it would have been preferable for a fresh document to have been prepared deleting the scored through words. Nonetheless the intention of the parties is clear that it was agreed that the reference to complex regional pain syndrome (as well as the left knee itself) was not to be part of the referral.
We thus had some difficulty in comprehending Ms Licina’s submission that the Medical Assessor was in fact empowered to assess CRPS. In any event, Dr Granot himself was ambivalent whether Ms Licina could satisfy the requisite criteria,[14] and there was no evidence before the Medical Assessor that could have sustained such a finding in any event.
[14] Appeal papers page 118.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 March 2023 should be confirmed.
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