Muavae v Artline Kitchens Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Muavae v Artline Kitchens Pty Ltd [2022] NSWPICMP 44
APPELLANT:	Puniala Muavae
RESPONDENT:	Artline Kitchens Pty Ltd
APPEAL PANEL:	Member Paul Sweeney Dr Brian Stephenson Dr Tommasino Mastroianni
DATE OF DECISION:	10 March 2022
CATCHWORDS:	WORKERS COMPENSATION- Worker appeals against a determination of 0% in respect of the table for the evaluation of minor skin impairment (TEMSKI) scarring and a deduction of 10% pursuant to section 323 (2) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for pre-existing degenerative disease of the shoulders; Panel admits photograph of worker’s scar and supplementary statement taken after the Medical Assessment Certificate (MAC) as fresh evidence; Panel finds prima facie error in the assessment of scarring but not in the application of section 323 (2) of the 1998 Act; Held- after re-examination Panel determined that the “best fit “for the scarring was 2%; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 April 2021, Puniala Muavae (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA, formerly an Approved Medical Specialist). The medical dispute was assessed by Medical Assessor Ian Meakin (MA), who issued a Medical Assessment Certificate (MAC) on 9 March 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 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 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, 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).

RELEVANT FACTUAL BACKGROUND

Prior to October 2019, the appellant was employed by Artline Kitchens Pty Ltd (the respondent) as a cabinetmaker. That was arduous work, which involved a good deal of overhead lifting. The appellant states that he was required to stack timber cupboards which weighed 50kg by himself.
In the course of that work the appellant developed pain in his shoulders. He consulted
Dr Hoque, a general practitioner of Rosemeadow, who certified him unfit for work. When conservative treatment failed, he was referred to an orthopaedic surgeon, Dr Sameer Viswanathan, an orthopaedic surgeon.
On 28 February 2020, Dr Viswanathan performed an arthroscopic acromioplasty and rotator cuff repair on the appellant’s right shoulder. Unfortunately, the surgery did not eliminate the symptoms in the appellant’s right shoulder. He says that he continues to experience pain in both shoulders, his elbows and his neck. He has not returned to employment. He also says that he is unable to perform many domestic chores by reason of his shoulder pain.
On 21 October 2020, Dr Endrey-Walder, a general surgeon, saw the appellant at the request of his solicitors. He assessed 25% whole person impairment (WPI). This was made up of an assessment of 16% WPI of the right upper extremity (shoulder and elbow), 9% WPI of the left upper extremity, and 1% WPI (TEMSKI) in respect of the surgical scar on the right shoulder.
Dr Roger Rowe, an orthopaedic surgeon, saw the appellant at the request of the respondent for the purposes of the claim for WPI. Dr Rowe noted some restriction of movement in both shoulders, although he recorded a normal examination of the appellant’s cervical spine. He expressed the opinion that the appellant had not reached maximum medical improvement (MMI).
The respondent accepted liability in respect of the injuries to the appellant’s upper extremities. As the difference of opinion as to both MMI and WPI of these body parts between Dr Endrey-Walder and Dr Rowe gave rise to a medical dispute as that term is defined by s 319 of the 1998 Act, the Registrar of the former Workers Compensation Commission referred the matter to an MA to determine that dispute.
By his MAC of 9 March 2021, Dr Meakin assessed 13% WPI. Relevantly, he assessed 7% WPI in respect of the right upper extremity and 6% WPI in respect of the left upper extremity. He assessed TEMSKI scarring as 0%. It is from that assessment that the appellant appeals.

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 by a member of the panel. The panel concluded that there was prima facie error in the manner in which the MA assessed scarring. Conversely, the panel concluded that there was no error in the manner in which the MA applied s 323(2) of the 1998 Act. The panel will elaborate on its reasons for these conclusions below.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence that is additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit a supplementary statement dated 1 April 2021 in which he asserts that the surgical scar on his right upper extremity is “more than 5cm long”. Attached to this short supplementary statement is a photograph of the appellant’s right shoulder which he states was taken “on 16 March 2021 at my barrister’s chambers”.
The appellant submits that in the peculiar circumstances of this case both the photograph and the statement should be admitted into evidence. The respondent opposes the reception of fresh evidence on the appeal. For reasons which will be addressed below, the appeal panel concluded that it is appropriate to admit the supplementary statement of the applicant and the attached photograph.

EVIDENCE

The panel has before it all the documents which were sent to the MA for the original medical assessment and the supplementary statement of the appellant and the attached photograph. It has taken this evidence into account in making its determination.

Further medical examination

Dr Mastroianni of the appeal panel conducted an examination of the worker on 9 February 2022 and reported to the panel. Insofar as it is relevant, his report is as follows:
“The workers medical history, where it differs from previous records
The medical history is the same as that recorded by the Medical Assessor. The claimant injured both shoulders in the course of his employment. He had conservative treatment and surgery to the right shoulder. He complains of constant pain in both shoulders. The Medical Assessor when assessing scarring states that Mr Muavae is not conscious of the scars. I asked the Claimant to tell me about the scars in the right shoulder. He says that he is conscious of the scars and he always wear shirts not to show the scars, so people do not ask questions.
2. Additional history since the original Medical Assessment Certificate was performed
No additional history.
3. Findings on clinical examination
Examination of the shoulders reveals tenderness and restricted shoulder movements, the same as that recorded by the Medical Assessor. Elbow movements were restricted slightly, the same as recorded by the Medical Assessor. Examination of the right shoulder reveals a surgical scar over the anterior shoulder joint measuring 5.5cm. It is a fine scar but the distal third is dystrophic with a width of 2mm. The scar is hypo-pigmented and there is colour contrast with the natural tanned surrounding skin. Suture marks are clearly visible. Trophic changes are evident to touch and there is visible contour defect. The anatomic location of the scar is usually visible with wearing singlets or swimwear. Arthroscopic portal wounds were healed and not very visible.
Appeal Against Medical Assessment
The Claimant has scarring which is rateable under the TEMSKI classification (PIC Guidelines, page 74, table 14.1). Under the best-fit principle of the TEMSKI classification, the scar best fits the descriptors for 2% whole person impairment.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil applicable”

Medical Assessment Certificate

The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of the decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the panel. In summary, the appellant submits that the MA erred in assessing TEMSKI scarring and in making a deduction of 10% for a pre-existing condition pursuant to
s 323(2) of the 1998 Act.
In respect of scarring, the appellant attacked the finding by the MA that his surgical scar was 3cm and that the scar was not pigmented. He noted that both Dr Endrey-Walder and
Dr Rowe recorded that the scar was 5cm long in their respective reports. He submitted that this was confirmed by his supplementary statement which is “evidence that the scar has been understated in the examination by the AMS or an error has otherwise been made”, presumably in the recording of the scar in the report. The submission continued:
“Because inconsistencies like these are so rarely found, evidence of this nature is never ordinarily part of an ARD, and it is not something in this case that was “reasonably” available. We therefore seek to include it under s 327(3)(b) in support of a demonstrable error under s 327(3)(d).
The evidence, as well as supporting a ground of demonstrable error, cast doubt on all of the AMS’s findings on this issue and thereby his entire TEMSKI analysis.
It is further or in the alternative alleged that the TEMSKI guides themselves were misapplied under s 327(3)(c) but an arming with proper facts and a holding of a re-examination would be required in this case based on what we say is a contamination of the exercise arising from the wrong information that was to hand and relied on by the AMS.
A proper application of TEMSKI would have produced a 1% WPI finding.”
In respect of the alleged error in making the deduction for a pre-existing condition, the appellant argued that although the Application to Resolve a Dispute referred to a deemed date of injury, he had, in fact, performed the relevant work over a period of some two years. That work was described both in the appellant’s statement and in the MAC as involving overhead lifting. The submission continues:
“Later in the MAC the AMS falls into error especially at pages 5 and 9 of the MAC where it is apparent that the AMS considers the injury to have been caused only by what happened on 1 April 2019.
The error is material in relation to the deduction under s 323 of the 1998 Act.
The AMS failed to consider the impact of those years of heavy duties on the degenerative changes in the right shoulder that were identified and considered as decisive during the application of s 323 of the 1998 Act. The error is clear from the analysis disclosed on page 9 of the MAC (paras 11.a. and b.)”
The submission asserts that a proper application of s 323 would have been “unproductive of any deduction”.
The respondent conceded that both Dr Rowe and Dr Endrey-Walder had measured the appellant’s scar as 5cm in length. However, neither doctor had referred to the scar being “pigmented, atrophic or tethered”.
The respondent also noted that paragraph 14.6 of the Guidelines stated that “uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment”. It submitted that the length of the scar “whether it be 3cm or 5cm, is only one factor in the application of TEMSKI”.
As neither Dr Rowe or Dr Endrey-Walder contradicted the MA in relation to pigmentation, atrophy or tethering of the scar, there was no error.
In respect of the supplementary statement of the worker and the attached photograph, the respondent submitted:
“That the photograph and statement is not fresh evidence insofar as the scarring was present at the time the appellant was physically examined by the AMS.
The respondent says that the photograph is not a professional photograph of the scarring and does not show accurate scale, depth and colour and should not be relied upon in preference to the AMS’s findings on actual examination of the appellant.”
In respect of the ground of appeal relating to s 323, the appellant noted that the MA observed on perusing the radiological evidence that:
“On the day that he became symptomatic there was significant evidence of degenerative change in the rotator cuff and the acromioclavicular joint in x-rays and the scans performed some 7 months after the injury.”
The respondent argued that the appellant had only been employed by the respondent for some two years. It was not the case that the respondent had performed repetitive work for an employer, or in the same industry, over a substantial part of his working life. The submission continued:
“The AMS provided his reasons in paragraph 11 of the MAC for making the deduction pursuant to s 323(2) of the 1998 Act having regard to the evidence of the longstanding severe degenerative changes in the right and left acromioclavicular joints with osteophyte formation and the evidence of longstanding tendinosis in the right and left rotator cuff.”

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 panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284, 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 medical assessment certificate 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 Pty Limited v Kocak 88 ALJR 52 (Kocak) 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 Kocak, 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 Kocak 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).
In the MAC, the MA dealt with the issue of scarring thus:
“At the time of today’s assessment, there are scars associated with the right shoulder surgery. Mr Muavae is not conscious of the scars but they are distinguishable. There are arthroscopic portals which are very difficult to see. There is a 3cm longitudinal incision for entry to the subacromial space which demonstrates only minor contour defect. There is no adherence to deep structures. There is no pigmentation and there is good colour match to surrounding skin. The scars have no effect on activities of daily living and no treatment is required.”
On the basis of these findings, the MA expressed the opinion that the scars “demonstrate a 0% whole person impairment”.
Plainly, there is a significant discrepancy between the MA’s measurement or recording of the length of the scar and that recorded by both the appellant’s and respondent’s doctors. This suggests the possibility of error in examination or, possibly, an error in recording the measurement. In the opinion of the medical practitioners of the panel, the differing measurements are material to the assessment of WPI for TEMSKI scarring.
On reviewing the appellant’s supplementary statement and the attached photograph for the purposes of determining whether it should be admitted into evidence, the panel noted his contention that the scar was 5cm and not 3cm. It also observed that the attached photograph did suggest the likelihood of some pigmentation of the scar.
It is true, as the respondent asserted, that the photograph was not taken by a professional photographer. It is also the case that photographs can be deceptive and should not ultimately be relied upon to determine the appropriate WPI unless there are unusual circumstances.
Nonetheless, in the peculiar circumstances of this case. The panel concluded that it should admit the supplementary statement and the photograph into evidence. As the appellant submitted, it is a rare event for a party to a medical assessment to find error of measurement in the recording of a clinical examination. The different accounts of the scar given by
Dr Endrey-Walder and Dr Rowe suggest error. The photograph is confirmatory of the likelihood of error. The panel observed that the photograph is far more consistent with a scar of 5cm than one of 3cm and it did suggest pigmentation.
The supplementary statement and the photograph is evidence which was not available to the appellant at the time of the original assessment, both having been taken for the purposes of this appeal. This evidence had the potential to lead to a greater assessment of WPI.It is relevant to the first ground of appeal and, in the opinion of the panel, it is in the interests of justice that it be admitted into evidence in this case.

On receipt of the medical report of Dr Mastroianni, the panel reconvened to consider his findings and opinion in the context of Table 14.1: Table for the evaluation of minor skin impairment (TEMSKI) of the guidelines. As Dr Mastroianni’s findings were radically different to those reported by the MA the panel confirmed its preliminary view that there was either a demonstrable error or the MA applied incorrect criteria in assessing the scar. There was a material error either in his measurement of the scar or in his recording of the measurement.
The medical practitioners on the panel considered that the findings on re-examination required a finding that the “best fit” for appellant’s scarring in accordance with the Table was 2% WPI. In addition to the history that the appellant was conscious of the scar, the following findings on examination were important in the panel’s reasoning:
·        the trophic changes were evident to touch;
·        suture marks were clearly visible; and
·        contour defect is visible.
The panel then turned to the appellants argument in respect of s 323. The MA dealt with the question of a deduction pursuant to s 323 as follows:
“Although Mr Muavae had no previous symptoms prior to 1 April 2019 in his right and left shoulder, there was evidence of longstanding severe degenerative changes in the right and left acromioclavicular joints with osteo formation and evidence of longstanding tendinosis in the right and left rotator cuff.”
While it is true that the MA refers to the “work injury on 1 April 2019”, it does not follow that he restricted his assessment of the causal impact of employment on the appellant’s shoulders to the work that the appellant was performing at the very time he experienced pain in his shoulders. The MA probably used the term “work injury” to refer to the deemed date of the injury which he was required to assess in accordance with the terms of the Referral. It has not been demonstrated that there is error in the way he characterised the injury or made a deduction for a pre-existing condition.
In his report of 2 December 2020, after considering the radiological evidence, Dr Rowe commented as follows:
“The medical imaging of both shoulders confirms significant widespread degenerative change in the shoulder rotator cuffs and AC joints and there is also degenerate change in the labarum. Thus, there is widespread degenerative change in both shoulder joints. Clearly this was pre-existing pathology. If it was to be accepted that his employment caused aggravation of this degenerative change, such aggravation is continuing. However, given the extensive nature of the pre-existing pathology, it is my assessment that his employment is not the main contributing factor in regard to the pathology but it may be the main aggravating factor.”
The panel concurs with this analysis. It is undoubtedly the case that the applicant had an asymptomatic degenerative condition of his shoulders before he commenced work with the respondent. It is equally clear that this condition contributed to the appellant’s impairment: see Matthew Hall Pty Ltd v Smart [2000] NSWCA 284. Contrary to the appellant’s submission, the MA would have fallen into error if he did not make a deduction pursuant to
s 323.
For these reasons, the appeal panel has determined that the MAC issued on 9 March 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 Meakin 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. Right Upper Extremity (shoulder/ elbow)	1/4/2019	Chapter 2 pages 13-15	Figures 16.40 to 16.46 and 16.34 to 16.37, AMA 5	8	1/10th	(7.2) 7%
2. Left Upper Extremity (shoulder/ elbow)	1/4/2019	Chapter 2 pages 13-15	Figures 16.40 to 16.46 and 16.34 to 16.37, AMA 5	7	1/10th	(6.3) 6%
3. Scarring	1/4/2019	TEMSKI	2	0	2 %
Total % WPI (the Combined Table values of all sub-totals)					15% WPI

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

Paul Sweeney

Member
Tommasino Mastroianni

Medical Assessor

Brian Stephenson

Medical Assessor

[2022] NSWPICMP 44

10 March 2022