Mr Water Plumbing Services Pty Ltd v MacGillivray
[2021] NSWPICMP 161
•7 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mr Water Plumbing Services Pty Ltd v MacGillivray [2021] NSWPICMP 161 |
| APPELLANT: | Mr Water Plumbing Services Pty Ltd |
| RESPONDENT: | Daniel MacGillivray |
| APPEAL PANEL: | Catherine McDonald Dr James Bodel Dr Gregory McGroder |
| DATE OF DECISION: | 7 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Assessment of impairment arising from two injuries; parties agreed on dates of impairment for frank injury and nature and conditions injury; Medical Assessor’s errors in calculation corrected; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 May 2021 Mr Water Plumbing Services Pty Ltd (Mr Water) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 May 2021.
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 was 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 s 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
Mr MacGillivray suffered injury in December 2015 whilst employed by Mr Water as a plumber.
The evidence in the file suggests that Mr MacGillivary began to suffer pain in his neck, shoulders and back on 8 December 2015 and reported it to his supervisor on the following day. On 9 December 2015, a steel water pipe dropped onto his left shoulder. On Friday 11 December Mr MacGillivary woke up with numbness on the left side of his face and weakness in his arm. He nominates that date as the deemed date of injury for injuries to his cervical spine and left and right upper extremities.
An MRI scan on 23 December 2015 showed a SLAP tear of Mr MacGillivray’s left shoulder. He was referred to an orthopaedic surgeon, Dr A Young, for his shoulder and a neurosurgeon, Dr M Stoodley, for his neck.
Mr MacGillivray returned to work in March 2016 worked off and on until he resigned from Mr Water in August 2016. He worked for other employers until he underwent a left shoulder arthroscopy, including excision of the distal end of the clavicle, on 15 January 2018.
Mr MacGillivray claimed permanent impairment compensation and the matter was listed for telephone conference. The parties agreed that the matter should be referred for assessment in respect of an injury to his cervical spine and left upper extremity (shoulder) on 9 December 2015 and an injury to his cervical spine, left upper extremity (shoulder) and right upper extremity (elbow) with a deemed date of 11 December 2015.
The Commission member did not make any findings about the causation of those injuries - presumably because she was not asked to do so. The medical evidence contains several opinions on causation and the lack of findings made the task of the Medical Assessor difficult. Those difficulties have carried through to this appeal.
The Medical Assessor assessed 15% whole person impairment (WPI) in respect of the injury on 9 December 2015. He assessed 7% WPI in respect of the cervical spine and 11% in respect of the left upper extremity. He made a one-tenth deduction for pre-existing degenerative changes under s 323 of the 1998 Act.
In respect of the injury with a deemed date of 11 December, the Medical Assessor assessed a further 2% WPI. He did that by making the same assessments of 7% for the cervical spine and 11% for the left upper extremity and purporting to deduct the amount assessed in respect of the injury on 9 December 2015. In doing so, he failed to take account of the s 323 deduction already made.
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 it was not necessary for the worker to undergo a further medical examination because the error to be corrected is mathematical.
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.
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.
The parties submissions are brief and deal only with the mathematical aspects of the assessment.
In summary and in submissions prepared by its solicitor, Ms Brown, Mr Water said that it did not consider there was an error in the overall assessment of 15% WPI. The Medical Assessor then assessed 7% WPI for the cervical spine and 11% WPI for the left upper extremity in respect of the second injury which, Mr Water says, was made without foundation and is inconsistent with the overall assessment of 15%. Mr Water said that the combined impairment assessed in respect of the second injury is 2% higher than the overall assessment made before any apportionment was attempted so that there is a demonstrable error “in relation to the apportionment between the two injuries”.
Mr Water’s submissions do not offer any assistance as to how the Guidelines should be applied in these circumstances.
In reply, Mr MacGillivary submitted that there was no error in the decision of the Medical Assessor but then agreed that the percentages for the second injury should take into account the one-tenth deduction made in respect of the first injury so that the assessments in respect of the cervical spine are 6% and 1% and in respect of the left upper extremity are 10% and 1% which equates to 15% in total.
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.
In Campbelltown City Council v Vegan[1] 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.
[1] [2006] NSWCA 284.
The MAC
The Medical Assessor set out a history of the onset of symptoms on 8 December 2015, the incident on 9 December 2015 when a pipe was dropped onto Mr MacGillivary’s neck and left shoulder and the onset of further symptoms on 11 December 2015. He set out his findings on examination in detail and reviewed the radiological investigations.
He commenced his assessment by assessing Mr MacGillivary’s current impairment, making a deduction under s 323 of the 1998 Act. He said:
“Mr MacGillivary has tenderness in the neck and asymmetric loss of range of movement. He complains of weakness and numbness in the left arm. Clinically, there was no evidence of radiculopathy. I found no loss of sensation or weakness in a dermatomal distribution. He falls into DRE Cervical Category II, see 10b.
ADLs are affected by the neck injury, both recreational activities and domestic work. He is independent in self-care. I assess 7% Whole Person Impairment.
There is evidence of pre-existing cervical spondylosis which, in my opinion, is a component of the current impairment. Guided by the history of injury and the radiological evidence, I have deducted one-tenth applying the provision of Section 323. This equates to 0.7% WPI. He therefore has 6.3% WPI which rounds down to 6%.
I have assessed 14% upper extremity impairment for the left shoulder injury, see 10b. As he had excision of the distal clavicle, he is entitled to a further 5%, see 10b. The combined impairment is 18% UEI. This equates to 11% WPI.
There is evidence of pre-existing degenerative disease in the left shoulder which, in my opinion, is a component of the current impairment. I have deducted one-tenth applying the provision of Section 323. This equates to 1.1% WPI. He therefore has 9.9% WPI which rounds up to 10%.In the right upper extremity, he has lateral epicondylitis. He however does not meet the criteria for epicondylitis of the elbow, see 10b. To be rated under the guidelines there must be localised tenderness and provocative tests must also be positive. Today, provocative tests were not positive. Therefore, he rates 0% WPI.”
There is no error in those overall assessments and both parties accept they are correct.
The Medical Assessor then made the following comments with respect to his assessment:
“For Injury 1 on 9 December 2015: I assess 10% WPI for the left upper extremity and 6% WPI for the Cervical spine.
I have assessed 11% WPI for the left upper extremity and 7% WPI for the Cervical spine for injury 2.
To avoid confusion, pre-existing condition regarding injury 2 relates to injury 1 on 9/12/2015. I therefore deducted 6/7th for the cervical spine and 10/11th for the left upper extremity. If a deduction for injury 1 isn’t made it would constitute double dipping.
For Injury 2 on 11 December 2015(deemed) I assess 1% WPI for the left upper extremity, 1%WPI for the Cervical spine and 0% WPI for the right upper extremity.”
When describing the s 323 deduction, the Medical Assessor said:
“The worker has evidence of underlying degenerative disease in the left shoulder and cervical spine.
In my opinion, persistent symptoms in the neck and left shoulder are a result of the injuries sustained at work and the underlying degenerative disease. I am of the opinion that pre-existing degenerative disease is a component of the current impairment.
I have deducted one-tenth for injury 1 as outlined under 10a applying the provision of S323(2) as the extent of the deduction is difficult or costly to determine.For injury 2, I deducted impairment from injury 1 see 10a.”
Consideration
The parties agree that Mr MacGillivary’s right elbow injury was a result of the second injury with a deemed date of 11 December 2015. Mr MacGillivary did not dispute on this appeal and that he does not suffer any permanent impairment as a result of that injury.
It is clear from the face of the MAC that there is a mathematical error in the assessment made by the Medical Assessor he failed to carry the s 323 deduction through to the second assessment. If that impairment existed before the first injury it must, logically, have also existed before the second injury.
It is important to note that the Medical Assessor was not asked to apportion his assessment. He was asked to assess the permanent impairment resulting from each of the two injuries.
The task is artificial because Mr MacGillivary did not undergo any investigations or treatment before the deemed date of the second injury. Dr M Guirgis, who assessed Mr MacGillivary at the request of his solicitors, apportioned the impairment to each injury equally. Dr Powell, who assessed him on behalf of Mr Water, did not apportion the impairment.
Despite Dr Guirgis’ assessment, it appears clear that the majority of the impairment results from the injury on 9 December 2015 when Mr MacGillivary was struck on the left shoulder and neck by a piece of pipe. The submissions made on behalf of Mr MacGillivary accept that is the case.
It is unclear from the Certificate of Determination whether the parties turned their minds to questions of causation arising from two injuries to the same parts of Mr MacGillivary’s body or questions about aggregation[2]. They are not raised on this appeal and it is not our role to consider them.
[2] See, for example, Secretary, New South Wales Departmnet of Education v Johnson [2019] NSWCA 321 and Ozcan v Macarthur Disability Services Ltd [2011] NSWWCCPD 21.
The practical method which the Medical Assessor should have adopted was to first calculate the total WPI suffered by Mr MacGillivary. There is no dispute that the appropriate assessment was 7% in respect of his cervical spine and 11% in respect of his left upper extremity (shoulder) and that one-tenth should be deducted under s 323 of the 1998 Act. The resulting assessment, after rounding, is therefore 6% for the cervical spine and 10% for the left upper extremity (shoulder).
By his MAC, the Medical Assessor clearly intended to convey that the majority of the impairment was a result of the injury on 9 December. The figures he adopted indicate that he considered that roughly nine-tenths was a result of the first injury and one tenth of the total was a result of the second injury. We consider that is appropriate.
Paragraph 1.26 requires that figures be rounded before combining. Applying those principles to the overall assessment results in 14% WPI for the injury on 9 December 2015, comprised of 5% for the cervical spine (6% less 0.6% equals 5.4%, rounded down) and 9% for the left upper extremity (shoulder) (10% less one-tenth).
For the second injury, the assessment of 0.6% rounded up is 1%, which is combined with 1% for the left upper extremity, resulting in 2% for the second injury.
When 2% is added to 14%, the impairment assessed is higher than the total impairment. Whilst that outcome may seem incongruous, it is not so when the terms of the referral are considered and the provisions of the Guidelines are applied. The Medical Assessor was asked to assess each of two injuries, not to apportion one impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 May 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 Tommasino Mastroianni 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) |
| Cervical spine | 9 December 2015 | Chapter 4, pp 24-29 | Chapter 15, p 392, Table 15-5 | 5% | 5% | |
| Left upper extremity (shoulder) | 9 December 2015 | Chapter 2, pp 10-12 | Chapter 16, pp 433 - 521 | 9% | 9% | |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
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 Tommasino Mastroianni 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) |
| Cervical spine | 11 December 2015 | Chapter 4, pp 24-29 | Chapter 15, p 392, Table 15-5 | 1% | 1% | |
| Left upper extremity (shoulder) | 11 December 2015 | Chapter 2, pp 10-12 | Chapter 16, pp 433 - 521 | 1% | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 2% | |||||
Catherine McDonald
Member
Dr James Bodel
Medical Assessor
Dr Gregory McGroder
Medical Assessor
6 September 2021
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