Onesteel Trading Pty Ltd v Miller
[2021] NSWPICMP 70
•14 May 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Onesteel Trading Pty Ltd v Miller [2021] NSWPICMP 70 |
| APPELLANT: | Onesteel Trading Pty Ltd |
| RESPONDENT: | Graham Douglas Miller |
| APPEAL PANEL: | Member Jane Peacock Dr Roger Pillemer Dr James Bodel |
| DATE OF DECISION: | 14 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Injury to cervical spine and left upper extremity (shoulder); in respect of the cervical spine assessment, the appellant employer appealed in respect of the allowance of 2% whole person impairment (WPI) for activities of daily living (ADLs); Held- the Panel found there was no error in this assessment; in respect of the left upper extremity, the Medical Assessor (MA) used an incorrect figure for excision of the distal clavicle and the Panel corrected this assessment; however the MA correctly combined arthroplasty with restricted range of movement; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 January 2021 the appellant employer Onesteel Trading Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 December 2020.
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.
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).
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 not undergo a further medical examination because even though the Appeal Panel was satisfied as to error by the MA, there was sufficient material before the Appeal Panel to enable them to determine the matter.
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.
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.
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 matter was referred to the MA as follows:”
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 29/09/15
· Body parts/systems referred: Cervical spine
Left upper extremity (shoulder)
· Method of assessment: Whole Person Impairment”
The MA issued a MAC certifying as follows:
Body Part or system Date of Injury Chapter,
page and paragraph number in SIRA guidelinesChapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) Sub-total/s % WPI (after any deductions in column 6) Cervical spine 29/09/15 Chap 4
P 24P 392 T 15-05 7% 1/10th 6% Left upper extremity (shoulder) Chap 2
P 10P 476 F 16-40
P 477 F 16-43
P 479 F 16-46
P 406 T 16-27
P 439 T 16-0314% 1/10th 13% Total % WPI (the Combined Table values of all sub-totals) 18%
The employer appealed. The respondent worker submitted that the MA did not err and the MAC should be confirmed.
The MA placed the respondent worker in DRE Category II of the cervical spine (which was not the subject of complaint on appeal) and then applied an additional 2% for Activities of Daily Living (ADLs) on the basis that “He is able to drive for about 2 hours. He tries to do some work in his garden and can cut the grass. He is able to help around the house and also does some cooking”.
The panel is of the view that the allowance of 2% whole person impairment (WPI) for ADLs was open to the MA on the evidence and the panel can discern no error in this regard.
In assessing the impairment of the left shoulder, the MA has combined the restricted range of movement for the shoulder with the excision of the distal clavicle, which he is entitled to do. However the MA has used a figure of 10% upper extremity impairment for the excision of the distal clavicle. This figure was changed in the 4th Edition of the WorkCover Guidelines, noting on page 12 that “…the figure for a resection arthroplasty of the distal clavicle (isolated) has been changed to 5% upper extremity impairment…”.
The MA should therefore have combined the impairment for the restricted range of shoulder movement (14% upper extremity impairment) with the new figure for the excision of the distal clavicle (5% upper extremity impairment), giving a total of 18% upper extremity impairment rather than the MA’s figure of 23% upper extremity impairment. This in turn equates with 11% WPI, and with a deduction of one-tenth under s 323 (not the subject of complaint on appeal), leaves 9.9% which rounds to 10% WPI.
The submissions of the appellant which suggested that distal clavicle excision cannot be combined with restricted range of movement as suggested by Dr Panjratan, are incorrect. These impairments can be combined. See page 12 of the WorkCover Guides:
“As noted in AMA 5 section 17.7b ‘Arthroplasty. In the presence of decreased range of motion, motion impairments are derived separately and combined with arthroplasty impairment.”
This includes those arthroplasties in AMA 5, Table 16-27 designated as ‘(isolated)’. Excision of the distal clavicle is classified as an ‘arthroplasty’.
In summary, in respect of the cervical spine assessment, the Panel can discern no error in the allowance by the MA of 2% WPI for ADLs and the assessment of 6% WPI (after a deduction of one-tenth under s 323 which was not the subject of complaint on appeal) for the cervical spine will be confirmed.
In summary, in respect of the left upper extremity assessment, the appellant is correct that the MA has used an incorrect figure for excision of the distal clavicle and the Panel will correct this assessment. However it is noted that arthroplasty can be combined with restricted range of movement.
On this basis the Panel will certify the following:
Body Part or system Date of Injury Chapter,
page and paragraph number in WorkCover GuidesChapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality Sub-total/s % WPI (after any deductions in column 6) Cervical spine 29/09/15
Chapter 4
Page 24-29Chapter 15
Page 392
Table 15-57%
1/10
6%
Left upper extremity
(shoulder)29/09/15
Chapter 2
Pages 10-12Chapter 16
Pages 433 to 52111%
1/10
10%
Total % WPI (the Combined Table values of all sub-totals)
15%
For these reasons, the Appeal Panel has determined that the MAC issued on 11 December 2020 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 AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 29/09/15 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 7% | 1/10 | 6% |
| Left upper extremity (shoulder) | 29/09/15 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 11% | 1/10 | 10% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
Jane Peacock (Member)
Dr Roger Pillemer (Medical Assessor)
Dr James Bodel (Medical Assessor)
14 May 2021
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