Lithgow City Council v Curry
[2023] NSWPICMP 511
•13 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lithgow City Council v Curry [2023] NSWPICMP 511 |
| APPELLANT: | LITHGOW CITY COUNCIL |
| RESPONDENT: | VICKI CURRY |
| APPEAL PANEL | |
| PRINCIPAL MEMBER: | JOHN HARRIS |
| MEDICAL ASSESSOR: | ROGER PILLEMER |
| MEDICAL ASSESSOR: | DAVID CROCKER |
| DATE OF DECISION: | 13 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - The worker suffered an accepted left hip injury in 2021 and underwent a total hip replacement; the Medical Assessor(MA) assessed the impairment of the hip at 20% and the surgical scar at 2%; reasons of MA did not disclose examination findings for the scar; the Panel could not discern whether the Medical Assessment Certificate (MAC) contained a demonstrable error, or the assessment was made on the basis of incorrect criteria; failure to give adequate reasons; demonstrable error established; Wingfoot Australia Partners Pty Ltd v Kocak applied; respondent re-examined; examination findings showed shape, colour and texture was pale in colour and visible to worker; some effect on activities of daily living; no staple marks and no adherence; applying best fit; skin impairment assessed at 2%; Held – MAC confirmed. |
BACKGROUND
Ms Vicki Curry (the respondent) sustained injury to her left wrist and left hip on 8 April 2021 in the course of her employment with Lithgow City Council (the appellant). The injury occurred when Ms Curry tripped on either a computer cord or the mat adjacent to her desk causing her to fall to the ground.
Ms Curry suffered various injuries including a displaced left femoral neck fracture. On
14 April 2021 Ms Curry underwent a total hip replacement by reason of the fracture.On 20 October 2022 the respondent made a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim included an assessment for the surgical scar caused by the total hip replacement.
Proceedings in the Personal Injury Commission (Commission) were commenced as a medical dispute had arisen following the exchange of relevant correspondence. As there were no liability issues, the assessment of permanent impairment was referred by the President to a Medical Assessor.
The medical dispute was assessed by Medical Assessor Shahzad who issued a Medical Assessment Certificate dated 27 July 2023 (MAC).
The assessment of permanent impairment is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[1] The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[2]
[1] The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[2] Clause 1.1 of the fourth edition guidelines.
MEDICAL ASSESSMENT
It is unnecessary to refer to the MAC in detail given the scope of the grounds of appeal which were limited to the assessment of the scar.
The reasons provided by the Medical Assessor on the scar were:
“Ms Curry has a 16 centimetre oblique scar across the left buttock as a result of the surgery required for the workplace injury. Using Chapter 8 of the AMA Guides 5th Edition and Chapter 14 of the NSW Guides 4th Edition, and specifically Table 14.1 on page 74, TEMSKI, she has a 2% whole person impairment.”
The Medical Assessor assessed the left hip at 20% permanent impairment, the left wrist at 0% and, as noted, the scar at 2%. This produced a combined permanent impairment of 22%.
APPLICATION TO APPEAL THE MEDICAL ASSESSMENT
On 24 August 2023 the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor.
The appellant relied on the grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that the assessment was made based on incorrect criteria, and the MAC contained a demonstrable error.
On 28 August 2023 the respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor.
The delegate of the President was satisfied that a ground of appeal has been made out.
We are required to only address the subject matter of the ground of appeal. In Queanbeyan Racing Club Ltd v Burton[3] Basten JA stated:[4]
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors’ reasoning with respect to that finding; neither course was part of its statutory function.”
[3] [2021] NSWCA 304 (Burton).
[4] At [35], Leeming and McCallum JJA agreeing.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment. The evidence, where relevant, is referred to later in these Reasons.
SUBMISSIONS
Appellant’s submissions
The appellant noted that the Medical Assessor described the scar as a “16 centimetres oblique scar over the left hip” in the MAC. It was noted that the Medical Assessor assessed the scar at 2% impairment based on Table 14.1 of the Guidelines.
The appellant referred to the criteria for assessing minor skin impairment based on various criteria and apply cl 14.8 of the Guidelines to a best fit. The insurer relevantly submitted:
“The Appellant understand that a Medical Assessor is obliged to give reasons in relation to the matters certified in a MAC: see s.325(2)(c) of the 1998 Act. While the reasons need not be exhaustive, some explanation of how and why a particular opinion or conclusion has been reached is required, this includes some identification of the reasons for the assessment. It is well established that the purpose of reasons is to give the parties, and in particular the unsuccessful party, some understanding of why the decision was made and to enable an appellate tribunal to determine whether the decision is vitiated by legal or factual error.”
The appellant submitted that the Medical Assessor did not provide any reference to the criteria contained within TEMSKI and that the record of the examination “does not include sufficient parameters to allocate a 2% WPI under the TEMSKI”.
The appellant, somewhat inconsistently, given that it had submitted there was no reasons, suggested that the “history and examination findings within the MAC correctly conform to 0% WPI”. There was no reference by the appellant to the precise examination findings that justified that submission.
Respondent’s submissions
The respondent submitted that “the intent of the guidelines was to require assessors to provide reasons only in circumstances where there may be an issue with respect to whether or not the scarring should be assessed as falling within a class at a higher level other than Class 1”. In circumstances where the worker clearly fell within Class 1 there was “no requirement to provide detailed reasons for the reasons such classification falls within the lowest class”.
The respondent submitted that the description of a 16cm scar was “significant and speaks for itself” and the Medical Assessor could use his clinical discretion to determine the impairment. Accordingly, no error had been established.
REASONS
Demonstrable error
The Medical Assessor has a statutory obligation to provide reasons (s 325 of the 1998 Act). Those reasons must be adequate and disclose the reasons sufficient to show the “actual path of reasoning”[5] by which the opinion was formed and in sufficient detail such that an Appeal Panel could determine whether, in the context of the medical appeal provisions under the 1998 Act, either the MAC contained a demonstrable error, or the assessment was made based on incorrect criteria.
[5] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot) at [48].
The Panel can analyse the evidence when determining whether the certificate contains a demonstrable error: Vannini v Worldwide Demolitions Pty Ltd (Vannini).[6] In Vannini Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales, a “demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”.[7]
[6] [2018] NSWCA 324 (Vannini) at [90].
[7] Vannini at [86].
Skin disorders are divided into five Classes based on the severity of signs and symptoms, the limitation in the performance of the activities of daily living and the need for treatment.[8]
[8] Table 8-2 of AMA 5 and paragraph 14.4 of the fourth edition guidelines.
Many surgical scars fall within Class 1 of Table 8.2 because there is usually no impact on the performance of the activities of daily living and no need for ongoing treatment.
If the scar is classified as Class 1 of Table 8-2 then Table 14.1 of the fourth edition guidelines is applied. This is clear from paragraph 14.7 of the fourth edition guidelines which provides:
“The table for the evaluation of minor skin impairment (TEMSKI) (see Table 14.1) is an extension of Table 8-2 in AMA5. The TEMSKI divides class 1 of permanent impairment (0-9%) due to skin disorders into five categories of impairment.”
Table 14.1 of the fourth edition guidelines contains multiple criteria in evaluating skin impairment. This is known as the TEMSKI scale. The criteria are:
· whether the claimant was conscious of the scar;
· whether there was good colour match with surrounding skin;
· the anatomical location of the skin and its visibility with “usual clothing/hairstyle”;
· the presence of trophic changes;
· the presence of staple or suture marks;
· whether there was contour deficit;
· the effect, in any, on the activities of daily living;
· whether any treatment was required, and
· whether there was any adherence to underlying structures.
The Medical Assessor is required to use the principle of “best fit” in assessing the relevant percentage under the TEMSKI scale. Given the nature of the discretion in assessing a “best fit” under Table 14.1, reasonable minds may differ in assessing a particular percentage given that there are no clearly defined lines between the various percentages.
We reject the worker’s submission that there is a necessary implication from AMA 5 and the fourth edition guidelines that reasons are only required for determining the class of skin impairment (Table 8-2 of AMA 5) and not after it is determined that a worker falls within
Class 1. There is no basis for that submission which is unsupported by either the text and/or context of AMA 5 and the fourth edition guidelines. The submission is otherwise inconsistent with s 325 of the 1998 Act.Table 14.1 sets out multiple criteria. The Medical Assessor must address the criteria in making an assessment under the TEMSKI scale and explain how and why the assessment is based.
The MAC does not articulate any examination findings for the surgical scar, other than that it was “oblique” and 16cm in length. Those findings do not describe most of the criteria relevant to an assessment of the scar under Table 14.1 of the fourth edition guidelines.
It is possible to infer from the brief description in the MAC the anatomical location of the scar and whether this would be visible with “usual clothing/hairstyle”. The factual finding made by the Medical Assessor probably satisfies one of the criteria in assessing the impairment of the scar.
Based on the absence of factual findings, it is impossible to determine how the Medical Assessor applied a “best fit” in assessing the appropriate percentage of permanent impairment.
Accordingly, we accept that there were inadequate reasons and that the MAC contains a demonstrable error. It is otherwise impossible to determine whether the assessment was made on the basis of incorrect criteria as there are limited factual findings which show the basis of the assessment of 2% permanent impairment. Due to the absence of findings, we cannot determine whether the Medical Assessor correctly applied the correct criteria. Accordingly, this also demonstrates inadequate reasons sufficient to establish demonstrable error in the MAC.
Re-assessment
Ms Curry was examined by Medical Assessor Crocker on 9 October 2023. The examination report is as follows:
“The consultation was conducted with Ms Curry unaccompanied. There was only a requirement for minimal clothing adjustment to allow an appropriate assessment to proceed.
The purpose of the current assessment was initially explained to Ms Curry.1. The worker’s medical history, where it differs from previous records
It is evident that the current re-examination specifically relates to assessment of the surgical scar overlying the left hip region.
It was apparent that only limited reference was provided in relation to the surgical scar in the Medical Assessment Certificate.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Curry reported that she is continuing to be employed with the Lithgow City Council as Tourist Officer based at the Visitors’ Centre in the town.
She is undertaking her usual work hours of 28 hours per week on the basis of permanent part-time employment. She reported that there are a number of medical restrictions in place inclusive of the following: Not to undertake familiarisation visits; not to participate in bus tours; to avoid heavy lifting; to use the lift rather than stairs within the workplace.
Ms Curry reports that she is continuing to experience variable pain to the region of the left hip. She also comments upon ongoing suboptimal dexterity in relation to the left hand/ wrist. She reports occasional ‘tingling’ of the left hand at night.In relation to treatment, she underwent further review with her General Practitioner approximately three weeks ago. A follow up consultation is planned with the Orthopaedic Surgeon. Ms Curry takes paracetamol and/or ibuprofen when necessary for pain relief.
I note that she utilises a walking stick when outside the home.
In relation to the surgical scar, she reported that she is conscious of this. It is apparent that this is covered with usual clothing. Ms Curry, however, stated that she has generally enjoyed outdoor activities. This has included recreational activities such as utilising the Council swimming pool and local water ways for swimming. She stated that the scar is evident when wearing her usual swimwear. She is conscious of the scar at these times.
She reported that she experiences a “prickling” sensation in the vicinity of the scar. She states that she also experiences discomfort to the region if lying on the left side at night.
In relation to potential negative impacts upon activities of daily living, she stated that discomfort arises in the vicinity of the scar when exiting or entering motor vehicles. At these times, she finds that she needs to exit the vehicle to alter her posture.
Ms Curry made reference to two subsequent falls that she had sustained since the subject incident of 8.4.21. It is noted that these occurrences are documented in the Medical Assessment Certificate.3. Findings on clinical examination
Ms Curry was a cooperative woman in nil apparent physical distress while at rest. She was noted to have a walking stick with her.
Her weight was 75kg, lightly clothed, with a height of 159cm in bare feet. According to Nutrition Australia, the healthy weight range for an Australian of this height is 48-63kg.
Inspection of the lateral aspect of the left hip demonstrated the presence of an oblique surgical scar of approximately 16cm in length.
With respect to shape, texture and colour, the scar more centrally was pale in colour. What would have been the edges of the surgical incision upon inspection demonstrated a ‘pink’ appearance in contrast to the central portion of the scar and adjacent skin.
There were nil obvious staple or suture marks.
With respect to location, see above.
In relation to contour, minimal depression was evident pertaining to the surgical scar. Generally, however, there appeared to be a mild depression in the vicinity of the scar with respect to skin/soft tissue contour. This differed from the contralateral side.With respect to ADLs/treatment, aspects relating to negative impacts upon activities of daily living have been documented above pertaining to entering/exiting motor vehicles and with respect to sleeping/lying postures.
There is nil indication that any treatment is necessary or planned in relation to the surgical scar.
With respect to possible adherence to underlying structures, there was nil evidence of this being the case.4. Results of any additional investigations
It is apparent that nil further investigations have been necessary in relation to the current assessment.
Ms Curry had with her multiple radiological series of films pertaining to her injuries which were not specifically relevant to the current assessment.5. Determination of permanent impairment
In determining whole person impairment with respect to skin/scarring, reference is made to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition), in particular, Chapter 14. This includes Table 14.1 (TEMSKI).
The 5th edition of the AMA Guides to the Evaluation of Permanent Impairment is also referenced (Chapter 8, 8.7, Table 8-2, pp 178-189).
Taking into account the more prominent nature of the surgical scar and evident negative impacts upon activities of daily living, it is considered that the whole person impairment arising from this is greater than 0%.
The footnote of Table 14.1 (TEMSKI) of the NSW Workers Compensation Guidelines indicates that the principle of “best fit” is applicable. It has been indicated that in relation to the current assessment, one surgical scar is the basis for assessment. The multiple criteria of the TEMSKI table need to be taken into account.
When considering the various criteria contained in the table and, in particular, some degree of negative impacts upon activities of daily living, it is considered that a 2% whole person impairment is most applicable in the current case.
It is apparent that this finding had also been the case when Ms Curry was assessed by the Medical Assessor on 27.7.23.”The Panel adopts the findings of Medical Assessor Crocker whilst adding the following further reasons.
Associate Professor Courtney provided a report dated 20 September 2022 when he assessed the scar at 1%. No reasons were provided for that assessment.
Dr John Bosanquet was qualified by the appellant and provided a report dated
1 February 2023. The doctor described a “16-centrimetre oblique scar across her left buttock” but did not purport to assess the scar for any permanent impairment.Based on the findings by Medical Assessor Crocker, the surgical scar is classified as Class 1 of Table 8-2 because there is no need for treatment and few limitations in the performance of activities of daily living.
The Panel accepts that, based on the findings made by Medical Assessor Crocker, the various criteria could be rated from anything between 0% and 4%. It is evident that Ms Curry is conscious of the scar. The shape, colour and texture are matters which could rate the scar in the range of between 2 – 4%. Conversely, there are no staple or suture marks and no adherence which suggests a rating of either 0% or 1%. Otherwise, the impact on activities of daily living is relevant to the determination of a best fit.
Based on the examination findings and conclusions of Medical Assessor Crocker, together with these further reasons, we determine the impairment at 2%.
The scar is well stabilised and unlikely to change substantially in the next year with or without treatment. Accordingly, the impairment is permanent as defined in the Guidelines.
CONCLUSION
Whilst we have found demonstrable error, the Panel’s finding of permanent impairment is the same as the original Medical Assessor. For these reasons, the MAC issued on 27 July 2023 is confirmed.
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