Macbeth v Farmland Management Services Australia Pty Ltd
[2022] NSWPICMP 410
•20 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Macbeth v Farmland Management Services Australia Pty Ltd [2022] NSWPICMP 410 |
| APPELLANT: | Darrell Rowcliff Macbeth |
| RESPONDENT: | Farmland Management Services Australia Pty Ltd |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Dr Paul Curtin |
| MEDICAL ASSESSOR: | Dr Michael McGlynn |
| DATE OF DECISION: | 20 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Worker appeals from determination by Medical Assessor (MA) of whole person impairment resulting from injury to the skin; Held – the MA erred in assessing scarring in accordance with Table 14.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed 1 April 2016) (Guidelines) (TEMSKI) without considering the criteria for classification of skin disorders in Table 8-2 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA5); after re-examination Medical Assessment Certificate (MAC) revoked and new MAC issued for 12% WPI (Class II of Table 8-2 of AMA5). |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 April 2022 Darrell Rowcliff Macbeth (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Giles, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 15 March 2022.
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 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 the PIC Rules.
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). A reference to WPI is to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 4 August 2020, the appellant was working at a rural property known as Wyadra for Farmland Management Services Australia Pty Ltd (the respondent) when he scratched his left arm on the metal corner of a Trailer, which was used to transport water.
Unfortunately, he developed an infection in the wound. It became swollen and inflamed. On 9 August 2020, he sought treatment at Griffith Base Hospital where he came under the care of a Dr Fitzgerald and Dr Jayachandran. He was diagnosed with necrotizing fasciitis. He remained in hospital for a period of five weeks during which the necrotic tissue on his left arm was debrided and treated with a series of skin grafts. The donor site for these grafts was his left leg.
By his statement, the appellant says that as a result of the injury he has “lost 50% of the strength” in his left arm. Relevantly, he states:
“The scarring looks awful and is extremely sensitive. I also have the same problem with the scarring on my leg. I have lost a lot of sensation in my left arm and favour it as much as I can. I can’t have any sun exposure and if I do, I very quickly get sunburnt. I have been unable to return to work.”
On 19 April 2021, the appellant saw Dr Howard De Torres, a hand, plastic and reconstructive surgeon, at the request of his solicitor. Dr De Torres recorded that, on his examination, he observed the scar on the appellant’s left forearm which adhered to bone over a substantial area. He noted that the area of the scar on the left forearm was clearly discoloured, obvious, and painful. He measured the scar on the left arm as 23 x 12cm and the scar at the two donor site scars as 16 x 10cm and 13 x 5cm. He assessed WPI in accordance with the Guidelines and AMA 5. He expressed the opinion that utilising Table 8.2 of AMA 5 the appellant “satisfies the criteria for Class 2 in the mid-range at 15% WPI”.
Dr James Masson, hand and plastic surgeon, saw the appellant at the request of the respondent’s solicitor and provided a report of 29 July 2021. He also recorded that the appellant’s present symptoms included adherence of the skin grafts. It produced “a burning pain and wakes him up” when he rolls over the during the night. He recorded that the appellant could not take any weight on his left thigh and no longer goes boating as he has “difficulty getting a boat in and out of the water”.
Dr Masson recorded his examination findings as follows:
“Examination of the left forearm revealed a non-meshed split skin graft which had been applied to the dorsoulnar surface of the left forearm between the elbow and the wrist. The skin graft measured 23cm in length and 10cm in width. The skin graft had been applied directly to muscles and tendons and at the proximal ulnar end of the skin graft, the graft had been applied to the periosteum over the ulnar, although it was not directly on the bone. There was a normal range of motion of the wrist and digits.
Examination of the left thigh revealed two split skin graft donor sites. On the anteromedial aspect of the left thigh was a split skin graft donor site that was 15cm in height and 6cm in width. On the lateral aspect of the same thigh was another split skin graft donor site which was 10cm in height and 5cm in width. Both donor sites were purple in colour which contrasted with the surrounding skin.”
Dr Masson also calculated impairment in accordance with Table 8-2 of AMA 5. He recorded that the appellant’s scarring required no treatment, although he had some limitation of performance of some activities of daily living, especially related to sleeping. He was able to groom and dress without difficulty. On this basis he expressed the opinion that the appellant’s scarring fell into a Class 1. He awarded 9% WPI.
The difference of opinion as to WPI between Dr De Torres and Dr Masson gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the dispute to an MA, Dr John Giles. It is from the assessment in his MAC that the appellant appeals.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that review, the panel determined that there was prima facie error in the MAC. Accordingly, the panel determined that the appellant should be re-examined by one of the two specialist plastic and reconstructive surgeons on the panel,
Having expressed the opinion that the appellant’s scarring did not “conform neatly” to the TEMSKI criteria, Dr Giles nonetheless proceeded to apply Table 14-1 of the Guidelines which is a table for the evaluation of minor skin impairment. It provides for the determination of WPI of between 0 and 9% on a “best fit basis”.
The MA gave no reason why he did not consider the criteria for rating permanent impairment in Table 8-2 AMA 5 which provides for the rating of skin disorders of between 0 and 95%. That table contains five ascending classes depending on the severity of signs and symptoms of skin impairment, the limitation of performance of the activities of daily living, and the requirement for intermittent or constant treatment.
In his reasons for assessing 9% WPI, the MA recorded the following:
“Mr Macbeth is conscious of his scars, can locate them and they are visible when he is wearing normal clothing. The scars are atrophic and there is an easily identifiable colour contrast between the scars and the surrounding skin. There are no stitch marks present, but there are very obvious contour deformities. The graft has been applied to the muscle bellies and the periosteum but it is still mobile, at least to some extent. The scars do restrict the normal activities of his daily life because they are fragile and easily damaged and the skin surface is an aesthetic. Although the scars would not benefit from surgery, they do need to have moisturising creams regularly applied to them to prevent them drying and cracking and he needs to keep them covered when he is in strong sunlight and the sun will aggravate them.”
The MA’s findings and history recorded above clearly demonstrate why the MA expressed the opinion that the appellant scarring did not “neatly conform” with the TEMSKI scale. The Appeal Panel noted that both the qualified doctors assessed impairment In Accordance with
Table 8-2. On the panel’s reading of the above extract from the MAC, it is plainly arguable that the criteria for rating the impairment as falling within Class II of Table 8-2 were present. In the circumstances, the MA’s failure to allude to Table 8-2 or to provide any reasons why he chose to assess the appellant scarring as a minor skin disorder in accordance with Table 14-1 of the Guidelines is highly suggestive of both error and the application of incorrect criteria.
EVIDENCE
The Appeal Panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
The MAC
The parts of the MAC given by the MA which are relevant to the appeal are set out in the body of this decision.
Further medical examination
Dr Paul Curtin re-examined the appellant audio-visually on 23 August 2022. Insofar as it is relevant, his report is as follows:
“Daryl Rowcliff Macbeth M1-W531/22 panel examination 23/8/22 DOB: 16/5/49 73 years certificate: John Giles 23/3/22 ACCIDENT DATE 4/8/20 Telehealth examination on 13/9/22 at 10 AM: the examination was carried out using Microsoft teams. Anneka Vermeulen (PIC dispute officer) attended at the outset. Mr Macbeth joined the meeting but was unable to get his camera working. The problem appeared to be the camera or its connection rather than the software. It was decided nevertheless to proceed with the interview. Mr Macbeth was fully cooperative and able to respond clearly to the enquiries put to him. Mr Macbeth is now retired and no longer works. He has clearly enjoyed good health since his interview with Dr Giles six months ago. He said that he had a dose of the flu for about three weeks but otherwise there have been no health problems and he does not take any medications. He has no problems walking. He lives with his wife in Hilston Western NSW, which is on the Lachlan River 750 km from Sydney. His wife runs a day care centre at their home. He is able to carry out the normal range of domestic duties, does the lawn mowing and gardening, together with any maintenance and repairs that are required. He says that these days that he tends to take things a bit easier than he did when he was working. When he mows the lawns he would do the front first and then the back rather than doing it all at the one time. He used to cut all the wood for their wood fire using a chainsaw, but now finds that vibration on the saw causes discomfort in his left arm. He now buys all the wood for the fire. He still goes fishing in the river from time to time but no longer takes his boat because he can’t manage it. His left arm restricts his activities to a certain extent. His elbow is quite tender if he accidentally knocks it and he says that the extensive grafted area on his forearm is quite numb, and he is therefore always worried about accidentally injuring it. To date there has been no significant laceration although he says that he has scratched it a couple of times and only become aware because of the subsequent bleeding. The combination of tender elbow and numb forearm causes him difficulty, particularly if he has to work in an enclosed space, or has to work low to the ground because he is unable to rest on his left forearm. He no longer wears any bandaging or Tubigrip on his left arm but says that he always wears long sleeve shirts by way of offering some protection. When he left the hospital he was told to apply moisturiser to his arm every day. He continues to do this, although he admits that occasionally he will miss a day. He has not noticed undue dryness of his left arm, but feels that the moisturising does help. He was also told to avoid getting his arm sunburned and he has continued to follow this advice. He said that his sleep is sometimes disturbed by discomfort from his left arm, particularly around the elbow where the skin cannot roll over normally because of the adjacent skin graft which is tethered to the underlying bone. He is aware of the disfigurement of the left arm which would sometimes attracts unwelcome attention when he moved about in public without wearing his usual longsleeved shirt. Although it was not possible to view his arm during the interview, the photographs taken by Dr Giles six months ago are of good quality and show the full extent of the skin grafted area, the appearance of which is unlikely to have changed in the interim. These photographs support Mr Macbeth’s claims regarding discomfort round the elbow.
Conclusions with regard to whole person impairment. The skin disorder of Mr Macbeth left forearm and left thigh lies in the Class 2 category because skin disorder signs and symptoms are present, there are limited performance of some activities of daily living and the disorder may require intermittent treatment. His activities of daily living have been moderately restricted with regard to his selfcare and personal hygiene . There have been some dressing restrictions in that he now wears long sleeves to cover his arms from the public gaze and to offer some protection both from trauma and from solar radiation. He also find it helpful to apply skin moisturiser on a regular basis. He remains physically fit and healthy and his physical activities are to some extent restricted by the sensitivity of his elbow and his fear of injury to his forearm, particularly as he has lost protective sensation in the grafted area. He avoids leaning on his left forearm for support, he can’t use his chainsaw because of vibration and he avoids working in enclosed areas where he is likely to bump his elbow. He reports that his sleep and rest in bed can be disturbed by his sensitive elbow because the skin in that area does not move in the normal fashion. He no longer takes his boat out to go fishing, for which he blames loss of strength in his left arm. It is not immediately clear why the injury would have resulted in significant loss of strength in his arm. The original necrotising fasciitis does not appear to have involved the underlying muscle . There was no muscle tissue identified in the debridement material submitted to pathology. Previous examinations did not identify any restriction of movement of either the wrist or fingers. Mr Macbeth does admit that he takes things more easily these days, and it is not unreasonable to suggest that the reason he finds manoeuvring his boat single-handed difficult is due to other reasons apart from his left arm.
The Class 2 category offers an impairment range of 10-24% whole person impairment. It appears that Mr Macbeth can pursue a normal lifestyle relatively unimpeded by the injury to his left arm. His impairment would appear to be well removed from the requirements for the class III category which requires limited performance of many activities of daily living. The impairment appears to lie at the lower end of the range at 12% WPI”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel. In summary, the appellant submitted that the MA had failed:
“to provide reasons for his assessment of the worker’s injuries as falling into class 1 of Table 8.2 in paragraph 8.7 of the Guides Evaluation of Permanent Impairment and in fact makes no reference to the five clauses in Table 8.2”
The appellant continued that the MA had provided no explanation as to why he did not consider Table 8.2. It was incumbent upon him to rate the appellant as falling into a Class between 1 and 5.
The appellant notes that the MA recorded that the scarring restricted his normal activities of daily living because they were fragile and easily damaged. He also accepted that he would need to regularly apply moisturising cream to the scarring to prevent it from drying or cracking and needed to keep them covered in strong sunlight. The appellant submitted that these findings necessitated a determination that he fell within Class 2 of Table 8.2.
By its brief submissions the respondent merely stated that the matters raised by the appellant did not provide any basis for the appeal. It contended that there was no demonstrable error and that the assessment of WPI was correct.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners PtyLtd v Kocak [2013] HCA 43 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
Following the re-examination of the appellant by Dr Curtin, the Appeal Panel reconvened and discussed his findings and conclusions on re-examination. The panel agreed that given the recent photographs of the appellant’s scarring, and the description of it in the qualified medical reports, it was appropriate for Dr Curtin to express an opinion as to WPI. The history obtained on re-examination confirmed the panel’s view that the MA erred in confining his assessment to Table 14.1, which is concerned with the evaluation of minor skin impairment TEMSKI, and in not considering the Classes in Table 8-2 of AMA 5.
The matters recorded by Dr Curtin on his re-examination, on balance, favour the assignment of Class 2 of Table 8.2 the appellant scarring. Signs and symptoms remain present, there is limited performance of some activities of daily living and the condition may require intermittent treatment. In particular the panel considered whether the application of moisturiser constituted “treatment” and concluded that in the context of AMA 5 there was no reason why it should not be considered as “treatment”.
The Appeal Panel concluded that it should accept the findings and opinion of Dr Curtin who assessed 12% WPI. Once the appropriate Class is established the allocation of percentage WPI is a matter of fact, degree and impression. It depends on a consideration of the evidence and the Examples set out following the Table at p180 et seq. of AMA 5. The panel concluded that a figure which reflected the lower ranges of the class was appropriate. Accordingly the panel determined that the appellant’s permanent impairment as a result of injury should be assessed as 12%.
For these reasons, the Appeal Panel has determined that the MAC issued should be revoked, and a new MAC should be issued on 23 March 2022. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W531/22 |
Applicant: | Darrell Rowcliff Macbeth |
Respondent: | Farmland Management Services Australia Pty Ltd |
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 Giles 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. The skin | 04.08.2020 | Chapter 14 Paragraphs 14.1-14.11 Table 14.1 | Chapter 8 pages 177-182 Table 8-2 | 12% | 0 | 12% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% WPI | |||||
0
5
0