Meehan v Lindores Personnel No. 1 Pty Ltd
[2021] NSWPICMP 235
•10 December 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Meehan v Lindores Personnel No. 1 Pty Ltd [2021] NSWPICMP 235 |
| APPELLANT: | James Eric Meehan |
| RESPONDENT: | Lindores Personnel No. 1 Pty Ltd |
| APPEAL PANEL: | Member William Dalley |
| DATE OF DECISION: | 10 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Incorrect assessment by a Medical Assessor (MA) of body part not the subject of appeal; successful appeal on failure to give reasons with respect to scarring; submissions sought from the parties as to whether, upon reassessment, the Panel should correct the apparent error with respect to assessment of the left lower extremity; the appellant worker submitted that the Panel did not have power to reassess the lower extremity but, if it did, the assessment was correct; the respondent also submitted that the Panel did not have power to reassess the left lower extremity; Held- the MA had failed to explain his reasoning in assigning a 0% WPI for scarring; in accordance with observations made upon re-examination the scarring was assessed at 1% WPI; consideration of Siddik v WorkCover Authority of NSW and Drosd v Workers Compensation Nominal Insurer; deciding that on examination the Panel is obliged to assess the appellant in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) having given the parties the opportunity to make submissions with respect to that issue; the Panel considered that Skates v Hills Industries Ltd, did not assist the appellant; Medical Assessment Certificate revoked and scarring and left lower extremity reassessed in accordance with the Guidelines. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 March 2021 James Eric Meehan lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 February 2021.
The appellant relies on the following grounds of appeal under section 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 grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under section 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
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).
RELEVANT FACTUAL BACKGROUND
The appellant, Mr Meehan, suffered an injury to his left knee on 17 May 2018 while working as a dogman for a labour hire company, the respondent, Lindores Personnel No. 1 Pty Ltd. Upon examination at hospital Mr Meehan was diagnosed as having suffered a full thickness tear of the anterior cruciate ligament and a partial thickness tear of the medial meniscus.
On 18 July 2018 an orthopaedic surgeon, Dr Jai Kumar, carried out an anterior cruciate ligament reconstruction. Mr Meehan underwent physiotherapy but continued to suffer pain and restriction of movement in the left knee. Upon review by Dr Kumar, Mr Meehan was advised to undergo partial medial meniscectomy which was carried out on 19 December 2018.
Mr Meehan underwent further rehabilitation but had only limited success in returning to work.
On 3 June 2020 Mr Meehan underwent an audiovisual telephone examination by an orthopaedic surgeon, Dr Gehr at the request of Mr Meehan’s solicitors. Dr Gehr assessed Mr Meehan as suffering 12% whole person impairment (WPI) as a result of injury to the left knee and a further 2% WPI in respect of scarring.
Mr Meehan’s representatives made a claim for lump-sum compensation in accordance with the assessment of Dr Gehr. Mr Meehan was examined by a further orthopaedic surgeon, Dr Bosanquet, on 4 September 2020 at the request of the workers compensation insurer. Dr Bosanquet assessed Mr Meehan as having 4% WPI in respect of the left knee and 0% WPI in respect of scarring.
The medical dispute was referred to the Medical Assessor to assess impairment of the “left lower extremity” and “scarring – TEMSKI”. The Medical Assessor examined Mr Meehan on 16 February 2021. The Medical Assessor assessed Mr Meehan as having 9% WPI in respect of the pathology in the left knee and 0% WPI in respect of scarring.
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because, error having been established, the material before the Panel did not permit of an accurate assessment of the extent of impairment arising from the scarring.
Upon preliminary review the Panel also sought further submissions from the parties which are noted below.
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.
Further medical examination
Dr James Bodel of the Appeal Panel conducted an examination of the worker on 2 November 2021 and reported to the Appeal Panel. That report is as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-6725/20 | |
| Appellant: | James Eric Meehan | |
| Respondent: | Lindores Personnel No.1 Pty Ltd | |
| Date of Examination: | 02 November 2021 | |
1. The workers medical history, where it differs from previous records
I have carefully perused the history that has been recorded by Dr Tim Anderson in his Medical Assessment Certificate dated 16 February 2021.
Mr Meehan confirms that at the time of his injury, on 17 May 2018, he was employed by a labour hire company, Lindores Personel No.1 Pty Ltd, working as a dogman.
He states that he was sent to work for Marrs Pty Limited and he had been with the company doing work as a dogman for about two or three months at the time of his injury.
He confirms that the injury to the left knee occurred when he jumped out the back of a truck and landed very awkwardly. He came down a distance of just over a metre and put his left leg down but the knee gave way causing him to twist the knee and he was in severe pain.
He was taken to Lingard Hospital where investigations with MRI scans confirmed the pathology of the torn anterior cruciate ligament and the torn medial meniscus.
The history of treatment is recorded correctly.
He had two surgical procedures however, the first being the ACL reconstruction done on 18 July 2018 which was about two months after the injury. There was a second surgical procedure on 19 December 2018 because of some progression of a partial medial meniscectomy which had not been addressed at the time of the original surgery.
He had appropriate treatment as recorded in the MAC and he has made steady progress.
He has been able to return to work through another agency (Allman Industrial) and is back at full time work in west Gosford at JR Richards, a re-cycling plant.
He manages his knee pain with Panadol and Nurofen.
2. Additional history since the original Medical Assessment Certificate was performed
This gentleman continues to complain of knee problems which have persisted since his assessment in February 2021. There has been no further accident, injury, or interventional treatment since the assessment was initially done.
3. Findings on clinical examination
I have re-examined this gentleman in a face-to-face examination today.
I refer to the appeal matter and the submissions raised by the Appellant, Mr Meehan which is primarily regarding the 0% Whole Person Impairment rating given by Dr Anderson in the assessment of scarring.
A lengthy detailed submission is made as to the reasons as to why it should be a higher number (? 2% WPI).
At the end of the submission there are however other matters which are raised but as I understand it, my instructions from the Appeal Panel are that these are observations only and not really a matter under appeal. The injuries relate to the presence or absence of variation in the valgus and varus angulation in both knees.
On clinical examination today, I observe that this gentleman does have scarring over the front of the left knee and I will return to that in a moment.
I note that Dr Anderson has recorded in his assessment that the range of motion in the knee, at the time of assessment in both knees is as follows:
·0° of extension and 140° of flexion on the right side.
·-10° of extension and 115° of flexion on the left side.
I confirm those findings on clinical testing here today.
He also observes that there is “5° of genu valgus in the right knee and 10° of the left knee”.
In addressing that issue, I would indicate that the 5° of genu valgus is just slightly more than the average degree of valgus in a normal knee and that the 10° recorded on the left hand side is likely to be an observation error based on what I have seen here today as it is impossible to accurately measure true varus or valgus angulation in that knee without being able to fully extend the knee as is the case in this circumstance.
I am satisfied therefore, that the restricted range of knee movement as recorded by Dr Anderson is appropriate and that the observations about varus and valgus are irrelevant in this circumstance.
Dr Anderson also records no neurological abnormality or reflex abnormality and that is again the case here today. He does not make any statement about the state of the ligaments but on testing, ligaments are stable including the ACL reconstruction. There is however some tenderness along the medial joint line where there was the partial medial meniscectomy.
In regards to the scarring, the scar is a well healed surgical scar. There is however some loss of subcutaneous tissue in the vertical scar which is part of the knee reconstruction scar. The scar is as broad as a half centimetre in some areas and it is clearly visible. It is easily located by the claimant but there is no abnormal pigmentation in the scar. There is no loss of pigmentation or increased pigmentation and the colour contour is therefore consistent with surrounding normal skin. There is however some hair loss over the front of the scar which is not present in the same area of the knee on the right hand side. There is mild sensitivity on palpation in the scar. I would indicate therefore that there are minor trophic changes and also the suture line is visible. The anatomical location of the scar is visible in normal short trousers but would be covered in long trousers. There are other minor contour defects which I have referred to and there is a negligible effect on any ADL’s.
In my summation of the various clinical findings, I would rate this scar as a 1% Whole Person Impairment under the TEMSKI scale as the appropriate level of scarring rating under the best fit assessment protocol that is applied in this circumstance. There is definitely no sign of tethering of the scar to underlying deep structures.
The other scars on the front of the knee are the two small arthroscopy scars which relate to the second surgical procedure and these are also scars which are in fact barely perceptible.
All scarring is rated collectively and the appropriate rating is a 1% Whole Person Impairment for the reasons outlined above.4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
5. Comment
The clinical issue that has been addressed in this re-examination is the scarring and for the reasons outlined above, the appropriate scarring is 1% Whole Person Impairment.
It does not rise to the value of the 2% and certainly not a 3 or 4% for the reasons outlined above.
In addition to the scarring, there is also an error in the rest of the assessment given by Dr Anderson, in that he erroneously combines the 8% Whole Person Impairment for the restricted range of knee extension with a 1% for the partial meniscectomy.
That is not allowed in accordance with Table 17-2 on Page 526.
The correct rating for the left lower extremity excluding the scarring therefore is an 8% Whole Person Impairment.
That is then combined with the 1% Whole Person Impairment to give a 9% Whole Person Impairment in this case.”
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. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor fell into demonstrable error and applied inappropriate criteria in failing to set out his observations of the scarring upon examination and by failing to explain his conclusion that; “the scarring rates 0% according to the criteria in the SIRA guidelines Page 74, table 14.1. This was a standard surgical procedure with an uncomplicated scar. Therefore, the whole person impairment is 0%.”
The appellant also alleged with respect to assessment of the left lower extremity:
“The MAC does not record consideration of assessment by methods other than ROM, when other methods apparently avail, such as limb length discrepancy, muscle atrophy, muscle strength or even gait derangement. One cannot be assured of compliance with PI Guidelines clause 3.5. That is a denial of procedural fairness to the worker, as well as a failure to assess in accordance with the Guidelines.”
The appellant also noted that the Medical Assessor had noted the presence of a valgus condition in the right knee and said: “given the recorded observation, it is reasonable to question whether the apparent deformity of the right knee is a progressive consequence of the impairment of the left leg.”
In reply, the respondent submits that the Medical Assessor had appropriately followed the Guidelines and had observed that the scar was an “uncomplicated scar” for a standard surgical procedure and, in accordance with clause 14-7 of the Guidelines and Table 14.1 should be rated at 0% WPI.
The respondent further submitted that the Medical Assessor had appropriately followed the Guidelines in assessing the left knee by means of range of motion, which the Medical Assessor appropriately considered gave the better result for the worker.
The respondent raised objection to the submissions of the appellant, noting the absence of references in failure to “clearly and simply address each ground of appeal”.
The appellant then filed his submissions in a document entitled “Medical Appeal Submissions (Reformatted to Comply with Personal Injury Commission of NSW Procedural Direction PIC 7)”.
The reformatted submissions contained no reference to the assessment of the left knee or any reference to the right knee.
FURTHER SUBMISSIONS
Upon preliminary review the Panel considered the submissions of the parties in the light of the MAC and the material supplied to the Medical Assessor. The Panel noted that the Medical Assessor had reported:
“Specialist orthopaedic surgeon, Dr Eugene Gehr, in his report of 03/06/20 has a very high whole person impairment of 18%. This includes a combination of muscle wasting from the thigh and from the calf with the range of movement, which in fact is not permissible for combination according to the SIRA Guidelines.”
The Panel accepted that the method of assessment adopted by Dr Gehr was contrary to Table 17-2 of AMA 5, in that the combination of muscle wasting with range of movement is not permitted by that Table.
The Panel further noted that the Medical Assessor explained his choice of method of assessment: “The whole person impairment which gives the greatest figure is therefore selected, which is the range of movement.” The Medical Assessor assessed 8% WPI on the basis of range of motion assessment. However, the Medical Assessor then added: “There is also a further whole person impairment of 1% for the partial medial meniscectomy, bringing the whole person impairment to 9%.”
The Panel formed a preliminary view that the Medical Assessor had fallen into error by adding the further 1% in respect of the partial medial meniscectomy (a diagnosis-based estimate) as combination of diagnosis-based estimate and range of motion is also not permitted by Table 17-2 of AMA 5.
For the reasons set out below the Panel accepted that the Medical Assessor had fallen into error in failing to record his observations of the scars, so as to provide a basis for his conclusion that the appropriate assessment was 0% WPI. The Panel was of the view that the material did not provide an appropriate basis for further assessment of the scarring and, accordingly, it was appropriate and necessary that a Medical Assessor member of the Panel should re-examine the appellant. The Panel formed the preliminary view that the re-examination should address the correct assessment of the left knee, noting the decision of Garling J in Drosd v Workers Compensation Nominal Insurer[1] (Drosd) where His Honour said at [61]:
“That law [section 322 (1) of the 1998 Act] required the Appeal Panel to apply the Guides, which as I have already explained adopt Table 17-33 of AMA 5. As is evident in [45] above, that Table does not permit an assessment of 10% whole person impairment of the left lower extremity. The fact that there was no appeal against that specific assessment by the AMS is beside the point. Once the appeal panel determined to set aside the MAC, it was required to undertake a fresh assessment of the plaintiff’s whole person impairment in accordance with the Guides.”
[1] [2016] NSWSC 1053.
The Panel accordingly directed the parties to file further submissions. The appellant was directed to address whether it is open to the Panel to reassess the left lower extremity in the light of the apparent error by the Medical Assessor in combining range of motion and diagnosis-based estimate contrary to Table 17-2 of AMA 5 (page 526) and to include submissions which addressed the issue of whether combination of range of motion with other impairments is permitted by Table 17-2 with respect to assessment of the degree of left lower limb impairment in the present case.
The appellant submitted that his earlier submissions, to which the respondent had raised formal objection, had been “rejected” and replaced by the reformatted submissions which contain no reference to assessment of the left lower extremity in which limited to assessment of the scarring. Accordingly, the appellant submitted, it was not open to the Panel to assess impairment in respect of the left lower extremity.
The appellant submitted:
“The act appears to deny the Appeal Panel jurisdiction ‘to reassess the left lower extremity’ as indicated in Direction 1. Such is asserted in the absence of judicial exegesis otherwise. If there is such authority within the ken of the Appeal Panel, on behalf of Mr Meehan, notice of such authority and opportunity to submit on such would be assurance of procedural fairness.”
The appellant further submitted, in the alternative, that the left lower extremity had been referred for assessment and that it was appropriate, in accordance with the Guidelines, for the Medical Assessor to assess injury to the knee and then to assess a further impairment arising from muscle atrophy and that these assessments were legitimately to be added.
The Panel informed the parties of its preliminary review based upon the decision in Drosd and directed the appellant to file such further submissions as he may be advised in respect of that authority.
In his further submissions the appellant noted the decision of McColl JA in Siddikv WorkCover Authority of NSW[2] (Siddik) where Her Honour said:
“[103] The conclusion that the Appeal Panel can consider grounds of appeal not the subject of s 327(3) leave as long as it accord procedural fairness, is consistent with the objectives of the Workplace Injury Act I earlier identified of providing injured workers and their dependants with payment for permanent impairment (s 3(c)), delivering the objectives efficiently and effectively (s 3(f)) and providing a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts: s 367(1)(a); see Chemler (at [23] – [24]); Riverina Wines (at [86]). It is also consistent with Kirby P’s observations in the Watson line of authority about the undesirability of confining a review in the workers compensation context to a creature resembling an appeal in the judicial context.”
[2] [2006] NSWCA 284
The appellant further submitted: “the signal ratio in Drosd is to be found in [61]: ‘Once the Appeal Panel determined to set aside the MAC, it was required to undertake a fresh assessment of the plaintiff’s whole person impairment in accordance with the Guides.’”
The appellant noted that Fagan J in Roads and Maritime Services v Roger Wilson[3] said:
“Once the Appeal Panel had determined that Dr Anderson’s Medical Assessment Certificate should be revoked it was incumbent upon them, as a matter of law, to apply the WorkCover Guides fully in arriving at a fresh assessment and issuing a new certificate.”
The appellant noted that Fagan J had cited the judgement of Garling J in Drosd with approval.
[3] [2016] NSWSC 1499 at [26].
The appellant also noted similar reasoning in Mercy Connect Limited v Kiely[4] and Queanbeyan Racing Club Ltd v Hannah Burton[5]. In the latter case Adams J had noted with respect to Drosd: “The ratio of this decision is that, even if no specific complaint is made about an error, the Panel is still required to issue a MAC according to law.”
[4] [2018] NSWSC 1421 per Harrison AsJ.
[5] [2021] NSWSC 315 per Adams J at [78].
The appellant submitted:
“While Siddik may have been determined prior to the amendment of section 328 (2), such amendments were also prior to the introduction of the 1998 Act section 322A which provision featured in the judgement of Leeming JA (sic) in Skates v Hills Industries Ltd [2021] NSWCA 142 wherein His Honour said in [60]; ‘… the Appeal Panel explained ‘it is settled law that an approved medical specialist is confined by the terms of the referral’.
(The quoted passage in fact comes from the judgement of McCallum JA). The appellant also noted that Her Honour had said:
“If that were the law, the injustice it would visit upon the applicant in the present case is manifest. There can be only one assessment of the degree of permanent impairment that results from an injury (or collection of injuries arising from a single incident): s 322A of the 1998 Act. The ring finger and the scarring were very much the minor injuries suffered by Mr Skates. Unsurprisingly, they did not give rise to a degree of permanent impairment that met the threshold for lump sum compensation. The application of that analysis would not meet the objective of providing fair compensation for workplace injuries. However, as I will explain, that is not the law.”
The appellant submitted; “The reasons of Leeming JA (sic – McCallum JA) are congruent and assure the practice of the Commission in its application of the ratio of Drosd.”
The respondent noted the provisions of section 328(2) and submitted that the appeal was limited to review of the original medical assessment and the ground of appeal on which the appeal is made. The respondent submitted “in the circumstances, the appeal panel does not have jurisdiction to reassess the claimant in respect of the left lower extremity.”
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. The Panel notes that the delegate of the President, in deciding that the appeal should be referred to a Medical Appeal Panel pursuant to section 327 (4) of the 1998 Act, recorded:
“Accordingly, the appeal is referred to a Medical Appeal Panel for determination…. Both sets of submissions should be provided to the Appeal Panel, although it appears that the later filed submissions replace those lodged on 9 March 2021. Ultimately, the Appeal Panel is to deal with the submissions as it deems appropriate.”
In Campbelltown City Council v Vegan[6] 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.
[6].
The Panel approaches the matter on the basis that the appeal is limited to assessment of the scarring. However, for the reasons set out below, the Panel does not accept that once appellable error has been established and the Panel determines that the MAC should be revoked, the Panel must confine its assessment to the body part or system which forms the basis of the appeal.
In Siddik, McColl JA said (Mason P agreeing):
“[101] In my view it is inappropriate to resolve the issues by applying prescriptive labels to the nature of the s 328 review. I am, however, of the view that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard.”
Giles JA in Siddick said[7]:
“9 For a number of reasons, I do not think that as a matter of its powers the Appeal Panel was confined to the ground of appeal as stated in the first respondent’s statement of the grounds.
·While essentially neutral on the question, the description of the appeal as ‘by way of review of the original medical certificate’, did not suggest a narrow power of review.
·As McColl JA has explained, resolution of medical disputes by the system of assessments with provision for appeals is integral to the Commission’s determinations, and can significantly affect common law remedies. While subject to s 327, the importance of the MACs also does not indicate a narrow power of review.
·Accepting that s 327 is intended to reduce the opportunity to contest an AMS’s assessment, once an appeal is proceeding on a ground for appeal under the section the Appeal Panel with its special expertise should not be hamstrung if it emerges that the ground for appeal has poorly stated or misstated by the party appealing, nor would it be just that an assessment of impairment open to appeal on a ground for appeal under s 327 had to be left intact for that reason.
·Once an appeal is proceeding, it is difficult to see why the deterioration in the worker’s condition (s 327(3)(a)) to which the Appeal Panel pays regard should be limited to that stated in the application to the Registrar, when there may have been further deterioration by the time the Appeal Panel conducts its review. Similarly, further additional relevant information (s 327(3)(b)) may become available. If the Appeal Panel is not tied on these grounds for appeal to what was stated in the appealing party’s grounds for appeal, it should not be tied to what was stated in the appealing party’s grounds for appeal on the other permissible grounds for appeal.”
[7] Ibid at [9].
Garling J in Drosd gave effect to that reasoning:
“[60] In particular, the Appeal Panel was required to have regard to the provisions of section 322 (1) the 1998 Act in reviewing the AMS’ medical assessment. Those provisions require an assessment of the degree of permanent impairment of an injured worker ‘… to be made in accordance with Workers Compensation Guidelines (as in force at the time of the assessment is made) issued for that purpose’.
[61] That law required the Appeal Panel to apply the Guides, which as I have already explained adopt table 17-33 of AMA-5. As is evident in [45] above, that Table does not permit an assessment of 10% whole person impairment of the left lower extremity. The fact that there was no appeal against that specific assessment by the AMS is beside the point. Once the Appeal Panel determined to set aside the MAC, it was required to undertake a fresh assessment of the plaintiff’s whole person impairment in accordance with the Guides.”
The Panel accepts that the Medical Assessor fell into error in failing to record his findings on examination with respect to scarring and to relate those observations to the criteria for the assessment of scarring to be found in Table 14.1 of the Guidelines.
Assessment of scarring requires consideration of shape texture and colour of the scar, its location, contour defect on activities of daily life and treatment. The statement of reasons in the MAC does not permit an understanding of the reasoning of the Medical Assessor in assessing Mr Meehan’s scarring is 0% WPI.
Section 325 (2) (c) of the 1998 Act requires the Medical Assessor to provide reasons for assessment and the Medical Assessor has not done so. The Panel considers that demonstrable error has been established for that reason.
It is accordingly necessary for the Panel to review the evidence, including the report of examination by the Medical Assessor member of the panel, to arrive at a decision as to whether it is appropriate to revokes the certificate and issue a fresh certificate based upon that review of the evidence and the re-examination of the appellant.
Assessment of scarring
The Medical Assessor member of the Panel conducted the re-examination of Mr Meehan reported with respect to the scarring:
“The scar is a well healed surgical scar. There is however some loss of subcutaneous tissue in the vertical scar which is part of the knee reconstruction scar. The scar is as broad as a half centimetre in some areas and it is clearly visible. It is easily located by the claimant but there is no abnormal pigmentation in the scar. There is no loss of pigmentation or increased pigmentation and the colour contour is therefore consistent with surrounding normal skin. There is however some hair loss over the front of the scar which is not present in the same area of the knee on the right hand side. There is mild sensitivity on palpation in the scar. I would indicate therefore that there are minor trophic changes and also the suture line is visible. The anatomical location of the scar is visible in normal short trousers but would be covered in long trousers. There are other minor contour defects which I have referred to and there is a negligible effect on any ADL’s.”
The Panel adopts those observations as evidence of the nature and appearance of the scar upon examination by Dr Bodel on 2 November 2021.
Dr Gehr, in his report dated 3 June 2020 recorded:
“Examination of left knee
Scar over the anterior aspect of the left knee in the region of tibial tubercle measuring approximately 5 to 6 cm. Scar over the medial aspect of the knee scar. Scar over the upper lateral aspect of the knee approximately 1 cm.
From WorkCover Guidelines, page 74, table 14.1, he is conscious of the scar, noticeable colour contrast, able to easily locate it, trophic changes present, suture marks apparent, anatomic location visible with usual clothing, contour defect visible, minor limitation of ADLs, no treatment plan, and no adherence.
WPI equals 2%”
Table 14.1. relevantly provides descriptors as follows in respect of 0% WPI, 1% WPI and 2% WPI:
Criteria
0% WPI
1% WPI
2% WPI
Description of the scar(s) and/or skin condition(s)
(shape, texture, colour)
Claimant is not conscious or is barely conscious of the scar or skin condition.
Could colour match with surrounding skin, and the scars or skin condition is barely distinguishable.
Claimant is unable to easily locate the scars or skin condition.
No trophic changes.
Claimant is conscious of the scars or skin condition.
Some parts of the scars or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes.
Claimant is able to locate the scars or skin condition.
Minimal trophic changes.
Any staple or suture marks visible.
Claimant is conscious of the scars or skin condition.
Noticeable colour contrast of scars or skin condition with surrounding skin as a result of pigmentary or other changes.
Claimant is able to easily locate the scars or skin condition.
Trophic changes evident to touch.
Any staple or suture marks are clearly visible.
Location
Anatomic location of the scars or skin condition not clearly visible with usual clothing/hairstyle.
Anatomic location of the scars or skin condition is not usually visible with usual clothing/hairstyle.
Anatomic location of the scars or skin condition is usually visible with the usual clothing/hairstyle.
Contour
No contour defect
Minor contour defect
Contour defect visible
ADL/treatment
No effect on any ADL
No treatment, or intermittent treatment only, required.
Negligible effect on any ADL.
No treatment, or intermittent treatment only, required.
Minor limitation in the performance of few ADL.
No treatment, or intermittent treatment only, required.Adherence to underlying structures
No adherence
No adherence
No adherence
Paragraph 14.8 of the Guidelines notes:
“The TEMSKI[8] is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If this skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.”
[8] Table for the Evaluation of Minor Skin Impairment.
The Panel is satisfied that as at the date of examination conducted by Dr Bodel the scarring described in the report establishes that Mr Meehan is conscious of the scarring. There is colour contrast with some parts of the scar. Mr Meehan is able to locate the scars. There are minimal trophic changes and suture marks are visible. The location of the scarring of the left knee would not usually be visible with long trousers but would be visible with shorts or swimwear. There are minor contour defects and negligible effect on any activities of daily life. There is no requirement for treatment and no adherence.
To the extent that these findings vary from the findings of Dr Gehr, the Panel notes that Dr Bodel’s assessment was carried out more than a year after that of Dr Gehr and there may well have been improvement in that time.
The Panel is of the opinion that the observations best fit an assessment of 1% WPI in accordance with Table 14.1 of the Guidelines.
Assessment of the left lower extremity
The Panel does not accept the appellant’s submission that assessment of the lower extremity permits both consideration of the wasting detected upon examination and assessment of the range of motion of the knee. Chapter 3 of the Guidelines governs the assessment of the lower extremity. That chapter provides for assessment in accordance with Chapter 17 of AMA 5, subject to modifications set out in Chapter 3 of the Guidelines.
Paragraph 3.3 relevantly provides: “There are several different forms of evaluation that can be used, as indicated in AMA 5 sections 17.2b to 17.2n (pp 528-54) AMA 5 Table 17-2 (p526) indicates which evaluation methods can be combined and which cannot…”
Paragraph 3.5 provides:
“In the assessment process, the evaluation giving the highest impairment rating is selected. That may be a combined impairment in some cases, in accordance with the AMA table 17-2 ‘Guide to the appropriate combination of evaluation methods’, using the Combined Values Chart on pp 604-06 of AMA5.”
The AMS reported:
“There are two possibilities for impairment of the left knee. There is atrophy of the thigh and there is also a reduced range of motion due to the fixed flexion deformity. The atrophy is addressed in the SIRA guidelines Page 14, Table 17-06a (modified). With 2 cm of reduction, this gives a whole person impairment of 4%.
The range of movement is addressed in AMA 5 page 537, table 17-10. With a fixed flexion deformity ranging between 10° and 19° there is 8% whole person impairment. The range of flexion is outside of a whole person impairment.
From the Table of Combinations in AMA 5 page 526, Table 17-02, it is not permissible to combine the range of movement with muscle wasting. The whole person impairment which gives the greatest figure is therefore selected, which is the range of movement.”
The Panel accepts that this is an appropriate application of the Guidelines and no error or application of incorrect criteria is disclosed in respect of that assessment, nor has any appeal been raised in respect of that assessment. However, the Medical Assessor went on to say: “There is also a further whole person impairment of 1% for the partial medial meniscectomy bringing the whole person impairment to 9%”. This constitutes a diagnosis-based estimate.
Table 17-02 of AMA 5 equally does not permit combining the range of motion assessment with a diagnosis-based estimate and the Panel is satisfied that, upon re-examination, it is not appropriate to include any additional allowance either by way of muscle atrophy or diagnosis-based estimate.
The Panel notes the submission of the appellant to the effect that the range of motion in the left knee is to be assessed separately to the muscle atrophy and/or the amounts in respect of the partial medial meniscectomy. Chapter 15 of AMA 5 sets out the procedure for assessment of the lower extremities subject to modification by Chapter 3 of the Guidelines.
The Medical Assessor has appropriately selected range of motion of the knee as the appropriate means of assessment having regard to the fact that this gives the higher degree of impairment. Table 17-2 makes it clear that the range of motion assessment in respect of the lower extremity is not to be combined with assessment of muscle atrophy or a diagnosis-based estimate in this case represented by the partial medial meniscectomy.
The Panel accepts that the decisions in Siddik and Drost require that, upon re-examination, the claimant is to be assessed in accordance with the Guidelines so that the Panel is required to correct errors of assessment even though not raised on appeal, provided that notice has been given to the parties and the parties have been provided with the opportunity to make submissions with respect to that issue.
The Panel is satisfied that the parties have had the appropriate opportunity to provide submissions in respect of assessment of the left lower extremity and the Panel has considered those submissions in arriving at its conclusion. The Panel considers that the appropriate view is that the Panel is constrained by the grounds of appeal in determining whether error is disclosed. However, once error has been established, the Panel is required to review the evidence and assess the appellant in accordance with the Guidelines.
The Panel does not accept that the reasons for judgement in Skates v Hills Industries Ltd[9](Skates) assist the appellant’s case. In Skates the Approved Medical Specialist had not assessed a body part which had been claimed by the worker, but which had not been included in the referral to the Approved Medical Specialist.
[9] [2021] NSWCA 142.
The decision in Skates establishes that, if on consideration of the evidence it is apparent that there is a live medical dispute with respect to a body part that has not been included in the referral to the Medical Assessor, then justice requires that this should be brought to the attention of the parties so that the appropriate steps can be taken for the resolution of that issue. The effect of the decision, in short, is that the terms of referral do not bind the Medical Assessor (and, in turn, an Appeal Panel) if those terms do not reflect the medical dispute between the parties[10].
[10] See Skates at [50] per Leeming JA
Conclusion
The Panel considers that it is appropriate to assess Mr Meehan as having 8% WPI in respect of the left lower extremity, based upon an assessment of the range of motion as recorded by the Medical Assessor and Dr Bodel, upon re-examination. A further 1% is to be added in respect of scarring determined pursuant to Table 14.1 of the Guidelines,
For these reasons, the Appeal Panel has determined that the MAC issued on 16 February 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Tim Anderson 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. Left lower extremity | 17/05/18 | Chapter 3, page 13 | Chapter 17, | 8% | Nil | 8% |
| 2. Scarring (TEMSKI) | 17/05/18 | Chapter 14 | Not applicable | 1% | Nil | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
Mr William Dalley
Member
Dr James Bodel
Medical Assessor
Dr David Crocker
Medical Assessor
10 December 2021
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