O'Keefe v SSG Resources Pty Limited

DETERMINATION OF APPEAL PANEL
CITATION:	O'Keefe v SSG Resources Pty Limited [2021] NSWPICMP 186
APPELLANT:	Shaun Anthony O'Keefe
RESPONDENT:	SSG Resources Pty Limited
APPEAL PANEL:	Ms Deborah Moore Dr Harry Stern Dr Ian Weschler
DATE OF DECISION:	01 October 2021
CATCHWORDS:	WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) erred in the manner in his assessment of the visual system; that system must be assessed under AMA 4 which does not allow for any impact on activities of daily living; other submissions regarding errors were either incorrect or not supported by the evidence; Held - the Panel however found that the MA (and both the specialists relied on by the parties) had incorrectly calculated the impairment; when properly calculated, all doctors actually assessed 7% whole person impairment; Medical Assessment Certificate revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 June 2021 Shaun Anthony O’Keefe (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Steiner, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 26 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 is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The 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.
This matter was assessed under AMA 4 for visual system impairment.

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 we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons that will be set out more fully below.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

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 MA erred in the following respects:
(a)    failed to engage with the parties’ submissions;
(b)    credit unquestioned;
(c)    failed to assess activities of daily living (ADL’s);
(d)    question of adjustment for spectacles unaddressed;
(e)    failed to address any adjustment for the effects of treatment;
(f)    ptosis should be included in section 8.5 additional assessment, and
(g)    misapplied section 8.5 in AMA 4.
In reply, the respondent submits that no errors were made.

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 [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 MA initially assessed Mr O’Keefe on 17 December 2020 and issued a MAC on 21 December 2020. The MA did not have all the evidence before him at that time and was then asked to re-consider his assessment in light of additional evidence which is noted in his MAC dated 26 May 2021.
The MA was asked to assess whole person impairment (WPI) in respect of the Visual System resulting from an injury on 17 April 2012.
The MA obtained a history of the injury, treatment and symptoms, noting “He has never worn glasses.”
As regards social activities and ADL’s, the MA said: “He stays at home on a disability pension. He is single and lives with a housemate”.
Findings on examination on 17 December 2020 were reported as follows:
“His uncorrected vision is 6/5-1 on the right and 6/24 on the left. The right eye is a little long sighted and corrects to 6/4. The left is mildly long sighted with one dioptre of astigmatism and corrects to 6/9-1. With a +1.75 reading addition he can be made to read N5 with each eye.
His ocular movements, cover tests and pupil reactions are quite normal. His intraocular pressures are also normal.
The right eye is normal in all respects. On the left there is subtle central and nasal corneal stromal scarring and the limbal blood vessels on the nasal side are mildly dilated and prominent. His conjunctivae are otherwise clear. His fundi are normal. His tear break-up time was also normal.”
The MA concluded: “He has had an alkaline chemical burn to the left eye which has left him with some loss of vision and an irritable eye and very glare sensitive”.
The MA assessed 6% WPI. He explained his reasons as follows:
“His uncorrected vision is 6/24 whereas the vision in the other is 6/5 and prior to the accident the vison had been equal. He also complains of significant glare problems.

Based on the visual acuity there is 18% loss of central vision in the left eye (Table 3). This should be combined with 8% for the glare Paragraph 3 Page 8/209 and using the Combined Values Chart this equates to 22% impairment of the left eye and using Table 7 this equates to 6% impairment of the visual system and using Table 6 this equates to 6% whole person impairment.”

The MA then commented on the other medical opinions as follows:
“I note that Dr Delaney has awarded 7% whole person impairment, Dr Delaney has assessed the distance vision at slightly better than when Mr O’Keefe saw me but has assessed the near vision as slightly worse. Dr Delaney has also combined 10% for the glare and irritation whereas I feel this is not the worst level and have combined it with 8%.
The reports by Dr Bors were not attached but I note Dr Delaney’s comments on them and agree with Dr Delaney that Dr Bors has miscalculated and Dr Delaney’s reasoning for this is entirely correct.”
As we said earlier, the MA did not have all the evidence before him.
In his subsequent MAC of 26 May 2021, the MA noted the additional material that had been sent to him as follows:
·        Medical Report of Dr Frank Bors, Ophthalmologist, dated 5 March 2020 (x2).
·        The application for reconsideration, including the attached Application to Appeal.
·        The respondent’s submissions in response, going to the rescission of the Certificate of Determination and the lateness of the appeal of Rankin Ellison dated 16 February 2021.
·         Decision by Ann Jackson dated 17 May 2021.
·       Reconsideration letter dated 18 May 2021.
He did not note any additional history since his previous examination relevant to his assessment. He did not re-examine Mr O’Keefe and repeated his findings made in December 2020.
In commenting upon the additional material, the MA said:
“As far as the evaluation by Dr Bors, the near vision was obviously significantly worse when Mr O’Keefe saw Dr Bors and so Dr Bors has assessed the impairment due to loss of visual acuity of the right eye at 33%. He then uses Table 7 which he incorrectly refers to as the Combined Values Chart to lead to a value of 8% loss of the visual system. Where Dr Bors has erred in his calculations is that the 10% that he has awarded for glare and sensitivity he has regarded this as 10% whole person impairment and added it to the whole person impairment for visual loss. What he should have done is, if he felt that this was worth 10% (whereas I have estimated it at 8%), he should have been aware that this is actually an impairment of the left eye which should be combined with the impairment due to loss of visual acuity. He should then have used Table 7 and Table 6 to achieve a whole person impairment. These were the points that were also made by Dr Delaney. This would have led to a significantly lower whole person impairment than that assessed by Dr Bors.”
Dealing with the first issue raised by the appellant, it is submitted that “the legal applications and submissions of the parties after the first assessment were in the hands of the MA for the second assessment” and that the MA records “no other comment about or engagement with the substantial [sic?] matters raised by the parties.”
This submission is misconceived. The task of an MA is set out in Chapter 1.6 of the Guidelines. An MA is required to assess impairment having regard to “the claimant’s relevant medical history and all available relevant medical information…” (our emphasis). An MA is not required to comment upon “legal applications” and submissions are for an Appeal Panel to consider.
The appellant next raises the issue of “Credit unquestioned.”
We do not understand this submission or in what context it is made. There is no suggestion that Mr O’Keefe’s credit was in question. We agree that the MA and other assessors accepted that there were no inconsistencies in his presentation and that his symptoms were genuine. In the absence of any explanation by the appellant as to the context of this submission, we have no further comment.
The appellant then raises the issue of ADL’s.
Again, this submission is misconceived. Chapter 10 of the Guidelines makes it clear that AMA 4 applies to the assessment of permanent impairment of the visual system, and ADL’s and the effects of treatment (another issue raised by the appellant) is not canvassed in AMA 4 such that these submissions fail.
As the respondent correctly points out:
“The impact on ADL’s does not fall within the ambit of ‘Other Conditions’ which may attract an additional 10% whole person impairment pursuant to Chapter 8.5 of AMA 4. These conditions are relevantly defined in Chapter 8 (p. 222) as ‘…such conditions as permanent deformities of the orbit, scars and other cosmetic deformities that do not otherwise alter ocular function.’”
The appellant next submits that the question of adjustment for spectacles was not addressed by the MA.
The appellant submits:
“The MA has recorded this gentleman’s blurred vision. That begs the question of whether the prescription spectacles should have been considered. The absence of any address to the question further weakens confidence in the virtue of this assessment.”
The issue is not about “confidence” but about whether the MA erred in his assessment.
Paragraph 1.30 of the Guidelines provides:
“Impairment of vision should be measured with the claimant wearing their prescribed corrective spectacles and/or contact lenses, if this was usual for them before the injury. If, as a result of the injury, the claimant has been prescribed corrective spectacles and/or contact lenses for the first time, or different spectacles and/or contact lenses than those prescribed pre-injury, the difference should be accounted for in the assessment of permanent impairment”
The MA noted that Mr O’Keefe had not worn spectacles prior to his injury. The appellant himself said in his statement: “I still have reduced vision in the left eye and it can’t be properly corrected with spectacles because the prescription difference is uncomfortable to wear”.
Dr Delaney noted: “Mr O'Keefe told me that he did not wear glasses before the accident” and further added: “due to his age he has become presbyopic… and he has therefore needed reading glasses for normal physiological aging changes”. Dr Delaney recommended further treatment in the form of “a tinted or photochromatic lens to be incorporated in any distance glasses he needs to carry out his work… the need for this is due directly to the effects of the [work-related] corneal scarring causing his glare intolerance and other symptoms”.
Since the appellant did not wear spectacles prior to his injury, nor has he been subsequently prescribed corrective spectacles as a result of his work-related injury, Paragraph 1.30 of the Guidelines does not apply.
As to the submission that “Ptosis should be included in section 8.5 additional assessment” the Panel notes that ptosis is not assessable as the MA did not diagnose it and the other ophthalmologists indicated the ptosis was neither significant nor injury related.
Finally, the appellant submits that the MA “Misapplied section 8.5 in AMA 4”.
Section 8.5 [sic para 8.5] page 222 AMA 4 is not relevant and only applies to orbital injuries eg ptosis which is not present.
Having said all that, we agree that the MA’s examination is correct, but he made an error in his calculations. He stated that left visual acuity loss (Table 3 p 212) was 18% when in fact the correct figure based on his examination findings was 20%. He made a further error using his own findings when adding 8% for glare, he obtained a 22% total visual impairment of the left eye (CVC) p 322) instead of 25%. This in turn resulted in an incorrect figure of 6% visual impairment both eyes (Table 7) and hence a total WPI of 6% (Table 6).
Using the MA’s heading at point 6b of his MAC, we find that based on the visual acuity there is 20% loss of central vision in the left eye (AMA 4 Chapter 8 Table 3 p 212). This is combined with 8% for the glare (par 3 p 209) using CVC chart p 322 which equals a total of 26% visual impairment of the left eye. This equates to7% impairment of the visual system (both eyes) Table 7, p 219 which then equals 7% WPI (Table 6 p 218).
The MA in his MAC correctly explains how Dr Delaney’s examination differs from his. He also stated that Dr Delaney’s final WPI should be 7%.
As regards Dr Bors report, the MA confirmed that Dr Bors had also made errors as he mistakenly assessed 10% visual impairment in the left eye due to glare as10 %WPI using Chapter 8.5, and that he should have used par 3 p 209.
In summary, Dr Delaney used incorrect calculations in arriving at 6% WPI. The Panel notes that using his examination figures the correct WPI is 7%.
Dr Bors in his report used incorrect references in AMA 4 Chapter 8 resulting in an incorrect assessment of 18 % WPI when if the correct method is used it results in WPI of 7%.
All the assessors failed to use the appellant’s uncorrected vision.
Having said that, save for the error in calculation, we agree with the assessment of the MA for the reasons set out above.
In summary, the appellant’s submissions in general fail, but as we have said, the correct WPI required amendment because of errors in calculation by the MA.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 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

Assessment in accordance with AMA4 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002.

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Steiner 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)
Visual system	17 April 2012	Paragraph 3 Page 8/209 Combined Values Chart Table 3 Table 7 Table 6	7%	0	7%
Total % WPI (the Combined Table values of all sub-totals)					7%

Ms Deborah Moore
Member
Dr Harry Stern

Medical Assessor

Dr Ian Weschler

Medical Assessor

[2021] NSWPICMP 186

01 October 2021