Mackie v Autocare Services Pty Ltd
[2022] NSWPICMP 459
•16 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mackie v Autocare Services Pty Ltd [2022] NSWPICMP 459 |
| APPELLANT: | Craig Mackie |
| RESPONDENT: | Autocare Services Pty Limited |
| Appeal Panel | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 16 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of scarring; whether Medical Assessor erred in assessing a 1% whole person impairment (scarring); whether he failed to take into account relevant evidence; whether he failed to give adequate reasons for finding that the criteria for a 1% whole person impairment were satisfied; Held – Medical Assessment Certificate set aside and replaced. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Mr Mackie, appeals from the Medical Assessment Certificate of Medical Assessor Dr Yiu-Key Ho dated 22 July 2022.
Dr Ho assessed a 14% whole person impairment (10% left upper extremity – elbow and shoulder, 3% right upper extremity – wrist and shoulder, scarring 1%) as a result of injury on 6 April 2017, when Mr Mackie fell to the ground from his truck in the course of his duties as a truck driver.
Among other things, he suffered a comminuted fracture of the left elbow, coming to surgery on 4 April 2017 and to revision surgery in August 2017. There was surgical scarring.
Mr Mackie alleges demonstrable error and the application of incorrect criteria in respect of the assessment of scarring only, noting that both Dr Bodel and Dr Machart, on whose assessments the worker and the employer had relied respectively, assessed 2% scarring.
The Appeal Panel conducted a preliminary review of Dr Ho’s medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
Submissions
The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. A brief summary follows.
The appellant submits that Dr Anderson erred in the following ways in assessing scarring.
(a) By failing to take into account the following evidence:
(i)clinical note of Dr Vakil dated 20 June 2017, noting frequent swelling at the scar site;
(ii)ultrasound of 22 June 2017 describing an ovoid heterogenous lesion and giving dimensions
(iii)clinical note of Dr Vakil dated 6 June 2018 describing tenderness over the scar line;
(iv)report of Dr Bodel dated 30 October 2018, describing the scar as ‘mildly complicated’, and ‘mildly pigmented and tender to touch’;
(v)further report of Dr Bodel dated 6 September 2021, describing the scar as ‘moderately complex’, significant, pigmented, sensitive, hypertrophic and quite uncomfortable, and
(vi)report of Dr Machart dated 14 December 2021, describing the scar as ‘wider than usual because of 2 operations, tethered, white, and slightly raised’.
(b) By failing to explain how he applied the criteria for TEMSKI in Table 8.1 of the Guidelines to arrive at an assessment of 1%.
(c) By failing to explain how he took into account activities of daily living for the purposes of applying the criteria in Table 8.1.
(d) By failing to explain why he rejected the assessment of 2% for scarring made by Dr Bodel and Dr Machart.
(e) By applying inconsistent reasoning in describing a scar of 10cm in length as ‘not obvious’.
The respondent submits as follows in reply:
(a) Dr Ho conducted an examination of the scarring. Though noting it was quite an extensive cut, he described it as ‘not tender and not very obvious’.
(b) In making his assessment, he applied the TEMSKI scale.
(c) He is not bound to agree with the assessments of Dr Bodel or Dr Machart.
(d) He gave reasons for the conclusions which he made, and which were reasonably open to him on the evidence.
Failing to take into account relevant evidence
The evidence to which the appellant refers was before Dr Ho, as it was attached to the Application to Resolve a Dispute.
There is no evidence that Dr Ho failed to have regard to it. The mere fact that he does not recite it is not evidence to that effect. He was not required to refer to each and every item of relevant evidence in making his assessment.
In any event, it was the task of the Medical Assessor to make his assessment as the worker presented on the day of assessment. All the evidence on which the appellant relies relates clinical observations made between 2017 and 2021. The assessment took place on 18 July 2022. Any clinical assessment made up to 2021 was superseded by the assessment made by Dr Ho at examination.
We are not satisfied that Dr Ho failed to take into account relevant evidence. This ground fails.
Failing to explain how the TEMSKI criteria were applied
Table 14.1 of the Guidelines sets out five criteria for assessing scarring from 0% to 9%. They are a description of the scarring, its location, contour, effect on activities of daily living, and adherence to underlying structures.
Par [14.9] provides: “Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value.”
Dr Ho gave the following reasons for assessing a 1% whole person impairment for scarring at [5] – emphasis added:
“In regards to the elbow, there is a 10cm surgical scar on the lateral aspect of the elbow joint.
…
The scar is not tender and not very obvious. It is quite an extensive cut but obviously, there is no neurological deficit in both upper limbs.”
He added at [10b]:
“Using the TEMSKI Scale for the scar, I think 1% is appropriate so altogether there is 14% whole person impairment.”
At [10c], he noted that Dr Bodel and Dr Machart had made a different assessment of scarring.
The reasons given by Dr Ho for selecting a 1% assessment were essentially that the scar was neither tender nor ‘very obvious’. He did not find that the scar was not obvious.
That reasoning does not address any of the criteria set out in Table 14.1. In our view, it does not provide an explanation for the path of reasoning followed by the assessor in arriving at a 1% whole person impairment. Though he was not bound to accept the previous assessments of Dr Bodel and Dr Machart, we do not know why he chose to make a different assessment.
In our view, his reasons were inadequate to describe the reasoning process. That constitutes demonstrable error, requiring that the Medical Assessment Certificate be set aside.
It is unnecessary to consider the further grounds of appeal.
Report of Medical Assessor Dixon
22. The Panel referred the worker to one of its members, Medical Assessor Dixon, for examination and assessment. His report follows.
“The claimant had sustained a fracture dislocation of the left elbow with a comminuted fracture of the radial head and neck on April 6, 2017 when he fell some two metres injuring his right wrist and let elbow. He had open reduction with internal fixation with three screws on 14 April 2017 with ligamentous reconstruction using a bony anchor. A second operation became necessary when the fracture collapsed and a screw became intra-articular and in August 2017 four months following the injury. The radial head was replaced and the collateral ligament reconstructed again. Following this he had post traumatic stiffness of the elbow and surgical scarring following revision surgery.
On examination on 8 November 2022, there was a 10cm scar over the lateral left elbow which showed colour contrast with pallor to the surrounding tissues and was readily visible in summer clothing. The claimant is conscious of this scar which he is easily able to localise.
There was a tender area at the junction of the middle and distal two thirds and the claimant reported that when bumped the scar is painful and has minor limitation on his ADL’s with increased pain of his post traumatic stiffness of the left elbow. He uses blockout when at the beach. There were mild trophic changes but no adherence, and no suture marks were visible.
The impairment for the scarring, based on the TEMSKI scale, Table 14.1,Page 74 of the WorkCover Guidelines, using the principle of best fit is 2% whole person impairment.
Combining this figure with the impairment that the MA found for the right upper extremity of 3% and that for the left upper extremity of 10%, gives a total of 15% WPI.”
Conclusion
The panel adopts the assessment of Medical Assessor Dixon.
The Medical Assessment Certificate of Dr Ho is set side and replaced by the attached Medical Assessment Certificate.
Issued by
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W936/22 |
Applicant: | Craig Mackie |
Respondent: | Autocare Services Pty Limited |
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 Medical Assessor Bruns and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Right upper limb | 6 April 2022 | Figure 16-40,43,46 Table 15-30,31 | 3% | 0 | 3% | |
| 2. Left upper limb | 6 April 2022 | Figure 16-40, 43, 46 | 10% | 0 | 10% | |
| 3. Scarring | 6 April 2022 | TEMSKI Scale | 2% | 0 | 2% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
0
0