Macbeth v Farmland Management Services Australia Pty Ltd - [2022] NSWPICMP 410

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 (4^th 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, 5^th 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, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICMP 410
Decision Date: 20 October 2022

CaseChat Overview and Summary

In the matter of Macbeth v Farmland Management Services Australia Pty Ltd, the appellant sought a review of a determination by a Medical Assessor (MA) concerning the whole person impairment resulting from injuries sustained by the appellant. The MA had assessed the impairment based on scarring using Table 14.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed 4 April 2016) (Guidelines). The appellant contested this assessment, arguing that the MA had failed to consider 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). The court was required to determine whether the MA had correctly applied the relevant criteria and if the classification of the impairment was appropriate.

The court found that the MA had erred in assessing the scarring in accordance with Table 14.1 without considering the criteria for classification of skin disorders in Table 8-2 of the AMA5. The court noted that the MA had failed to take into account the specific symptoms and limitations experienced by the appellant, such as the tenderness of the elbow and numbness in the forearm, which are more accurately reflected in the AMA5 criteria. Following a re-examination by Dr Paul Curtin, the court revoked the original Medical Assessment Certificate (MAC) and issued a new MAC for 12% whole person impairment (WPI) under Class II of Table 8-2 of the AMA5.

The final orders of the court were that the original MAC be revoked and a new MAC be issued for 12% WPI, reflecting the correct classification of the appellant’s impairment according to the AMA5 criteria. The court’s decision emphasised the importance of applying the appropriate criteria in assessing permanent impairment, particularly in cases involving skin disorders, to ensure an accurate and fair determination of the impact on the individual.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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”

Ratio Decidendi

Legal Principle Established

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