Ozcar Pty Ltd v Sater
[2024] NSWPICMP 44
•2 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ozcar Pty Ltd v Sater [2024] NSWPICMP 44 |
| APPELLANT: | Ozcar Pty Ltd |
| RESPONDENT: | Charlie Sater |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Malcolm Linsell |
| MEDICAL ASSESSOR: | Michael McGlynn |
| DATE OF DECISION: | 2 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - CLAIM FOR IMPAIRMENT OF THE SKIN; MEDICAL ASSESSOR ERRED IN FAILING TO TAKE AN ACCURATE HISTORY OF INJURY AND PRE-EXISTING INJURY AND CONDITIONS AND TAKE INTO ACCOUNT THE GENERAL PRACTITIONER’S CLINICAL NOTES AND REPORTS OF PROFESSOR RAJENDRA IN CONSIDERING THE DEDUCTION TO BE MADE PURSUANT TO SECTION 323 OF THE Workplace Injury Management and Workers Compensation Act 1998; MEDICAL ASSESSOR DID NOT ERR IN not considering the separate diagnosis of livedo racemose and whether that condition had caused any impairment as this was not a material error; FAILURE TO ADEQUATELY CONSIDER THE CRITERIA OF CLASS 3, TABLE 8-2 OF the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed ; WORKER RE-EXAMINED; HELD – MEDICAL ASSESSMENT CERTIFICATE REVOKED. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 August 2023 Ozcar Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Giles, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on1 1 July 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The respondent (Mr Sater) sustained an injury to his “skin” as a result of a workplace incident on 18 May 2021.
The matter was referred to the Medical Assessor John Giles, on 20 June 2023 for assessment of whole person impairment (WPI) of the skin with the date of injury being 18 May 2021.
The Medical Assessor examined Mr Sater on 5 July 2023 and assessed 54% WPI of the skin and made a deduction of one tenth for pre-existing injury, condition or abnormality. The combined total was 49% WPI as a result of the injury on 18 May 2021.
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 Procedural Direction PIC7.
The appellant requested that Mr Sater be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that there was a demonstrable error in the MAC and that it was necessary for Mr Sater to undergo a further medical examination because there was insufficient evidence on which to make a determination.
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.
Further medical examination
Medical Assessor Malcolm Linsell of the Appeal Panel conducted an examination of Mr Sater on 15 December 2023 and reported to the Appeal Panel.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a) ground 1: the Medical Assessor recorded an incorrect history of the events at work on 18 May 2021, an incorrect history of the effects of a prior insect bite and diagnosis of pyoderma gangrenosum, and incorrectly indicated that Mr Sater’s pre-existing Crohn’s disease was in remission as at 18 May 2021.
(b) Mr Sater’s pleadings and statement evidence and evidence to medical practitioners was of two separate events occurring at work, that is, an event in March 2021 (when he scraped his left thigh stepping out of a vehicle) and the injury on 18 May 2021 (when he scraped his left thigh against the edge of a desk).
(c) Contrary to this history, at page 1 of the MAC, the Medical Assessor has indicated both of these episodes occurred on the same day, being 18 May 2021.
(d) Despite the pleadings and evidence before him, the Medical Assessor had not noted the history of the insect bite as a relevant factor informing the work injury. There was no indication that the Medical Assessor turned his mind to the evidence which demonstrated that the prior insect bite had both caused the worker’s pyoderma gangrenosum and that this had not healed as at 18 May 2021.
(e) The Medical Assessor failed to account for and appreciate the flare up of the Crohn’s disease condition following the insect bite and prior to 18 May 2021. Contrary to the evidence before the Medical Assessor, he suggested that Mr Sater’s Crohn’s disease was in remission prior to 18 May 2021 and that the events of 18 May 2021 caused the pyoderma gangrenosum with no impact from his pre-existing Crohn’s disease. However, the evidence demonstrated that prior to 18 May 2021 Mr Sater’s insect bite had developed into pyoderma gangrenosum and Mr Sater’s Crohn’s disease had come “out of remission”.
(f) The above errors with the history are demonstrable errors in their own right and that each of these errors impacted the making a deduction under s 323 of the 1998 Act.
(g) On the basis of the erroneous history, the Medical Assessor deducted 10% from his impairment assessment pursuant to s 323. On page 6 of the MAC, the Medical Assessor noted the deduction accounted for Mr Sater’s pre-existing Crohn’s disease. Contrary to the evidence before him, the Medical Assessor had elsewhere considered the Crohn’s disease to have been in remission as at 18 May 2021.
(h) The evidence in this matter indicated Mr Sater’s impairment from the 18 May 2021 work injury was impacted by three factors: an earlier event at work in March 2021, the prior insect bite causing pyoderma gangrenosum which was diagnosed in early 2021, and Crohn’s disease no longer being in remission.
(i) The relevant issue is whether Mr Sater’s loss was to some extent due to the pre-existing condition and if so, there must be deduction of the deductible proportion for that loss, (Government Cleaning Service v Ellul (1996) 13 NSW CCR 344 at [349]). In line with Cole v Wenaline Pty Ltd [2010] NSWSC 78, the assessment of impairment and deduction to be applied must have regard to the evidence as to the actual consequence of any earlier injury, pre-existing condition or abnormality.
(j) The Medical Assessor failed to consider the impacts of an earlier event at work in March 2021, the prior insect bite causing pyoderma gangrenosum, and Mr Sater’s Crohn’s disease no longer being in remission when applying a deduction pursuant to s 323.
(k) Ground two: consideration of non-work-related condition. The Medical Assessor has noted the final admission into hospital was for the period between 2 and 7 September 2021. The admission notes indicated a principal diagnosis of: “Livedo racemose, Pyoderma gangrenosum.” The notes also indicated “… His pyoderma gangrenosum ulcer on the left posterior thigh remained stable.” The diagnosis of livedo racemose was a new skin condition also on the left posterior thigh caused by cocaine use in or around late August 2021 and early September 2021. Livedo racemosa is a skin condition with persistent red or violet discoloration, characterised by a broken, branched, discontinuous and irregular pattern.
(l) The Medical Assessor was required to assess whole person impairment in relation to the “medical dispute” referred to him. There was no acceptance of liability by the appellant in respect to any allegation of livedo racemosa sustained by Mr Sater. Despite the evidence before him, a separate diagnosis of livedo racemosa and the impacts of this were not considered by the Medical Assessor. The Medical Assessor did not address this aspect of the worker’s history nor provided any reasons to explain why he has not treated this as a separate condition in assessing impairment.
(m) It was inappropriate for the Medical Assessor to have assessed WPI without distinguishing any impairment arising from livedo racemosa. The Medical Assessor’s failure to treat the livedo racemosa as a separate, non-work-related condition amounts to a demonstrable error in the MAC. The inclusion of any impairment arising from this condition indicates the Medical Assessor has considered incorrect criteria when assessing the question of impairment arising from Mr Sater’s left thigh pyoderma gangrenosum skin condition aggravated on 18 May 2021.
(n) Ground three: criteria considered when assessing Class 3, Table 8-2 (AMA 5) The Medical Assessor has assessed the skin injury as falling within Class 3 under Table 8-2 of the AMA 5 (p 178, AMA 5).
(o) Class 3 and treatment criteria – to fall within Class 3, Table 8-2 requires that treatment for the skin condition “may” be intermittent to constant.
(p) On page 2 of the MAC, the Medical Assessor noted Mr Sater was continuing to take Prednisone. However, there was a lack of evidence to support this position. The reports from Dr Jain dated 16 September 2021, 30 September 2021, 21 October 2021 and 9 December 2021 set out a step-down plan to wean the worker off Prednisone. The clinical records from Dutton Street Medical Centre as at 12 May 2023 indicated Mr Sater was not prescribed with Prednisone after December 2021, except for one, seven day cycle on 30 June 2022. The Medical Assessor’s reference to Mr Sater’s continued Prednisone was inconsistent with the available evidence. The Medical Assessor has erred in this regard. The evidence does not support that Mr Sater met the Class 3 requirements for treatment. The treatment criteria under Class 1 of Table 8-2 most appropriately reflected the evidence with respect to the need for ongoing treatment.
(q) The Medical Assessor had indicated that Mr Sater’s marriage breakdown was a factor informing his impairment assessment and placement of Mr Sater in Class 3, Table 8-2. Mr Sater’s Prednisone use informed the Medical Assessor’s history (p 2) wherein he noted Mr Sater’s wife left him due to the changes in his behaviour caused from steroid and Endone use. The Medical Assessor’s history in this regard was inconsistent with the evidence. The Dutton Street progress notes suggested Mr Sater got divorced in early 2020 and that his divorce related to his cocaine use. There was a lack of evidence of ongoing prednisone use. The appellant nonetheless accepted there may have been the breakdown of another intimate relationship in Mr Sater’s life following 18 May 2021.
(r) The Medical Assessor erred in considering the ‘social effects’, that is a relationship or marriage breakdown, of the skin injury when assessing impairment. Chapter 14 of the Guidelines and the AMA 5 do not allow for consideration of the “social effects”, such as a divorce or relationship breakdown, of a skin injury when assessing impairment. Clause 14.4 of the Guidelines indicates that AMA 5 Table 8-2 (p 178) gives consideration to “… Three components – signs and symptoms of skin disorders, limitations in ADL and requirements for treatment.”
(s) The Guidelines provide examples 14.1 through to and including 14.6 of impairment assessments arising from work related skin injuries. There is no example of an impairment assessment in the Guidelines which give consideration to the “social effects” of a skin injury when assessing impairment. Similarly, none of the AMA 5 examples (ranging from pp 178 to 187 of the AMA 5) give consideration to the “social effects” of a skin injury when assessing impairment. The Medical Assessor’s consideration of the “social effects” of the skin injury when assessing Mr Sater’s impairment was contrary to the AMA 5 and the Guidelines.
(t) The Medical Assessor erred in this regard and his consideration of this factor amounts to a demonstrable error in the MAC. In addition, the Medical Assessor’s consideration of this factor indicated the MAC is based on incorrect criteria.
(u) For the reasons noted above, the assessment by the Medical Assessor was made on the basis of incorrect criteria and the MAC contains a demonstrable error. The errors in the history recorded by the Medical Assessor ultimately resulted in a failure to make an appropriate deduction under s 323. The Medical Assessor has, in error, inappropriately assessed whole person impairment as inclusive of the effects of livedo racemose despite the nature of the ‘medical dispute’ before the Commission. Further, the Medical Assessor failed to appropriately consider and apply the criteria under Class 3 of Table 8-2 of the AMA 5
Mr Sater’s submissions included the following:
(a) the Medical Assessor’s assessment was based upon the injury referred to him, the weighing up of the history obtained from Mr Sater, the examination on the day of his assessment and the Medical Assessor’s review of the available medical documentation and reports. A difference of medical opinion does not amount to the use of incorrect criteria or a demonstrable error. There was nothing on the face of the record of the MAC that indicates that the findings made by the Medical Assessor on the basis of information and material provided to him, and also clinical observation, amounted to the use of any incorrect criteria or demonstrable error.
(b) The Application to Resolve a Dispute (ARD) nominated the date of 18 May 2021 but, plainly, there were two separate injurious events. Mr Sater never disputed those events and accepted those injurious events by reason of the agreement to the referral. Clearly, then, all relevant work incidents had to be considered.
(c) Alleged error regarding events at work – that the Medical Assessor recorded both pleaded events happened on the same day was entirely irrelevant as he was bound to assess the injury pleaded in the ARD. No material error was made out.
(d) Alleged error regarding prior insect bite – the Medical Assessor made no error in finding the insect bite healed. The uncontested evidence of Mr Sater was that the bite was, in fact, healed. None of the evidence identified proved that the bite was not healed. There was, therefore, no error made out at all and it would have been inappropriate for the Medical Assessor to make any deduction due to the healed insect bite.
(e) Alleged error regarding Crohn’s disease being in remission – the Medical Assessor made no error in finding that Crohn’s disease was in remission. The uncontested evidence of Mr Sater was that in or around 2001, he suffered from Crohn’sdisease. This was treated through taking medications and he was fully recovered.
(f) It is uncontested that:
(i)the Medical Assessor had and read all evidence on the issue, and
(ii)applied a deduction pursuant to s 323 of the 1998 Act using his medical judgement, knowledge and experience.
(g) The appellant does not say how the Medical Assessor’s deduction ought to have changed and does not explain why a 10% reduction was unreasonable.
(h) The appellant said that the event at work in March 2021 should have been a deduction, but that event was specifically part of the injury claimed in the ARD. It would have been an error, therefore, for the Medical Assessor to deduct anything for the March 2021 event.
(i) By way of cross-appeal, if there is any error by the Medical Assessor, it was for finding any level of pre-existing whole person impairment. Mr Sater submitted that the Medical Assessor ought to not have found any pre-existing WPI due to Crohn’s disease under s 323 for numerous reasons:
(i)there was simply no evidence before the Commission that the Respondent’s Crohn’s disease caused any skin-related whole person impairment at all prior to the work events;
(ii)the only cause of the skin issue was the work events, and
(iii)that Crohn’s disease may have exacerbated the outcome was captured by the well-known concept of the ‘egg-shell skull rule’. Employers must take employees as they find them.
(j) As such, there ought to have been no deduction of WPI for any pre-existing condition and the WPI should be confirmed at 54%.
(k) Alleged error in actual skin disorder to be assessed – nowhere did the Medical Assessor say he assessed livedo racemosa. No evidence presented by the appellant suggested there was any WPI attributable to the livedo racemosa. Dr Ingram, the appellant’s medico-legal expert, did not deal with livedo racemosa at all. On that basis, it was impossible for the appellant to prove any error where it has failed to demonstrate how any livedo racemosa would affect a WPI assessment.
(l) Alleged error when assessing Class 3 – the appellant really submitted that their interpretation and application of the Class 3 should be preferred to the Medical Assessor’s, despite the fact that the Medical Assessor is a highly qualified and accredited skin specialist.
(m) The appellant’s submissions on this point were based on a fundamental misunderstanding of the application of the Classes. All the Medical Assessor would have to find to justify Class 3 is that:
(i)skin disorder signs and symptoms present or intermittently present – this was obviously the case in this matter;
(ii)limited performance of many activities of daily living – this was obviously the case in this matter and the Medical Assessor mentioned these. That there may be other things affecting daily living was irrelevant, and
(iii)may require intermittent to constant treatment – this was obviously the case in this matter.
(n) Mr Sater’s uncontested evidence was that he currently attends the Dermatology Outpatient Department at Royal Prince Alfred Hospital and his general practitioner (GP) for the skin injury many times in 2022 and 2023. This was proof of constant treatment. Dr Ingram recommended ongoing treatment in the form of a team approach of dermatologists and gastroenterologists to determine the way forward.
(o) Nowhere did the Medical Assessor apply social effects when determining which class Mr Sater fell in to. Regarding the reference to marriage breakdown, the Medical Assessor did not rely on this in finding Class 3. He mentioned it, simply, to elaborate on why he considers the injury to be very severely impaired. The Medical Assessor applied the table correctly and gave his reasons for this prior to mentioning the marriage breakdown.
(p) As such, there was no error in the Medical Assessor finding Class 3.
(q) The appellant failed to make out any material errors contained within the MAC and the appeal should be dismissed. Mr Sater, on the other hand, identified that reducing the WPI assessment by 10% for Crohn’s disease was erroneous and it ought to be found that WPI is 54%.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, 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. 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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 – s 323 deduction and incorrect history of (a) events at work, (b) the prior insect bite and pyoderma gangrenosum as a result and (c) remission of pre-existing Crohn’s disease
The appellant submitted that the Medical Assessor erred with respect to the history he has recorded in relation to the events at work, the prior insect bite and diagnosis of pyoderma gangrenosum as a result, and the remission of the worker’s pre-existing Crohn’s disease. Further the errors in the history recorded by the Medical Assessor ultimately resulted in a failure to make an appropriate deduction under s 323.
The Medical Assessor under “History Relating to the Injury” noted:
“Mr Sater told me that while working as a used car salesman, on or about 18th May 2021, he brushed against a car and sustained a superficial cut of the skin on the lateral aspect of his left thigh and later the same day, he brushed past a desk and again scraped the same area of skin.
He said he applied Betadine and a Band-Aid from the workplace first aid kit but over the next few days, his thigh became very painful, two open sores developed and they started to discharge. He attended the Accident & Emergency Department at Royal Prince Alfred Hospital and was admitted.
During his eleven day stay in RPAH, Mr Sater was taken to the operating theatre on six occasions to have the lesions surgically debrided, he was treated with antibiotics, analgesics, Prednisone and dressings and he was diagnosed with having pyoderma gangrenosum Shortly after being discharged from hospital, Mr Sater was readmitted for one day and, he said, he has been re-admitted on about another five occasions, he has been regularly followed up at the Dermatology Clinic at RPAH but he has not had any further surgery.”
The Medical Assessor made a diagnosis of “Sequelae of pyoderma gangrenosum left lower limb”.
Under “Details of any previous or subsequent accidents, injuries or condition” the Medical Assessor wrote:
“Mr Sater was diagnosed with Crohn’s disease when he was about twenty years old, but it had been in remission for many years when he developed pyoderma gangrenosum; he had ceased Salazopyrin and steroids many years before. He also had an insect bite on his left thigh in May 2020 and although he had four courses of antibiotics, the scab which developed did heal”.
The appellant submitted that the Medical Assessor’s history of Mr Sater both scraping his left thigh stepping out of a vehicle and scraping his left thigh on the edge of a desk events at work on the same day, that is, 18 May 2021 was incorrect.
In the ARD the date of injury was set out as 18 May 2021. Under “Injury Description/Cause of Injury and Death” the following details were provided:
“In May 2020, the Applicant suffered an insect bite on his left thigh which caused an infection. Following conservative treatment, the Applicant’s infection over that patch of skin was generally healing.
In approximately March 2021, the Applicant was performing his usual duties as a salesman for the subject employer. After stepping out of a vehicle, the Applicant scraped his left thigh against the edge of the driver’s door which caused a small cut on his left thigh. The cut happened over a part of his skin where he had previously had an insect bite in May 2020. The Applicant suffered from pain in his left thigh and underwent conservative treatment.
On 18 May 2021, the Applicant scraped his left thigh against the edge of his desk and felt immediate pain in his left thigh. As a result of the work injury, the Applicant suffered pyoderma gangrenosum.
In the alternative, the Applicant suffered an aggravation/acceleration/ exacerbation of [sic] deterioration of a pre-existing condition causing the development of pyoderma gangrenosum”.
In his statement dated 8 July 2021, Mr Sater wrote:
“15. In May 2020, I noticed an insect bite mark on my left thigh when I moved to Sydney. I consulted a doctor (I cannot remember the name) at Dutton Street Medical Centre and I was prescribed antibiotics. I had a follow-up at the medical centre and the doctor couldn't pinpoint whether it was an insect bite (not sure what insect) or related to my Crohn's disease. I had over 4 courses of antibiotics between May 2020 and May 2021. It was helping and the first scab was formed in my left thigh after the first course of antibiotics.
…
35. I cannot remember the exact date, in March 2021, I was doing yard change in the morning with a salesman (I cannot remember who) at the Lansvale yard. I was getting in and out and moving 4 to 5 cars without any issues. I then got in the next vehicle (I cannot remember the make and model) and moved it to another spot, as soon as I stepped out, my left thigh scraped against the edge of the driver's door, which caused a small cut on my thigh. This had never happened to me before when I was doing yard change. The cut was on the insect bite area. Prior to the incident, the skin had no scab and it was healing. The cut aggregated the injury and I felt a sudden pain in my leg. I stopped and I told the salesman that I hit my leg on the car door and I needed to go to the toilet and check. There was no witness. When I checked it in the toilet, my left thigh was bleeding. I cleaned it up and put a band-aid on it afterward. I continued to work. My thigh was hurting for the rest of the shift; I took some Panadol. I didn't report this incident to Mohammad because I didn't think it was that bad. I finished at my usual time.
36. I had my rostered day off a few days later, I went to the North Shore Hospital to check up on my wound. I received a dressing for my wound.
37. I returned to work the next day at Lansvale and I performed my normal duties, no injuries or incidents were reported. My wound was healing and a scab was forming soon thereafter. I didn't need other treatment and no antibiotics at the time.
38. On 18 May 2021, I worked at the Granville yard and made phone calls to potential customers in the morning. I didn't have any pain in my left thigh when I started.There was a scab on the wound and I did not need to cover it with a band-aid. At around 10am, I stood up from my desk to go to the toilet, my left thigh scraped across the corner edge of the right side of my desk, I felt pain in my leg immediately. There was no witness. I walked to the toilet and checked, the formed scab was ripped off.”
Dr Lobel in a report dated 15 December 2022 took the following history:
“Mr Sater stated that a ‘few’ years ago, while working as a second hand car salesman he brushed against a car causing a superficial scrape of the skin of his left thigh. On the same day he brushed past a desk, scraping the same area of his left thigh on the corner of the desk. He applied betadine and a bandaid from the workplace first aid. Over the next few days there was increasing pain, open sores and significant discharge affecting the skin of his left thigh. He attended to the Royal Prince Alfred Hospital Emergency Department and was admitted”.
The Appeal Panel accepted that the Medical Assessor erred in recording both the Injury caused by the car door and the injury caused by scraping his left thigh on the corner of the desk occurred on 18 May 2021. The Appeal Panel accepted that the injury involving the car door occurred in March 2021 and the injury involving the desk corner occurred on 18 May 2021.
The appellant submitted that the Medical Assessor recorded an incorrect history in relation to a prior insect bite and the remission of Mr Sater’s pre-existing Crohn’s disease.
In respect of the insect bite, the Medical Assessor reported that Mr Sater “had an insect bite on his left thigh in May 2020 and although he had four courses of antibiotics, the scab which developed did heal”. This was consistent in many respects with the account given by Mr Sater in his statement of 8 July 2021 of noticing an insect bite in May 2020 and being prescribed four courses of antibiotics between May 2020 and May 2021. He then stated that at the time when he brushed against a car and scraped his left thigh in March 2021 the skin in the insect bite area had no scab and was healing.
The Appeal Panel noted that the Medical Assessor made no reference to the clinical notes and records of Dutton Street Medical & Dental Centre, nor to the reports of Professor Shan Rajendra.
The clinical notes and records from Dutton Street Medical & Dental Centre contained the following entries:
(a) On 16 May 2020 “had skin injury 2 weeks ago, on L) thigh lateral area. Still feel pain. Small skin tear. No surrounding tissue red, swelling. No discharge from the wound”. Mupirocin 2% was prescribed to be applied three times a day.
(b) On 22 May 2020:
“Had some small injury in ? garden, at lateral aspect of mid thigh on left side was given top Abx last week – have used it for 5 days.
Still feel some soreness around injury site
Tiny skin opening, approx. 0.2 cm deep, with mild surrounding ertheme - area tender, but no pus/underlying collection noted ?FB in situ.”
Keflex 500mg Capsule 2 twice a day was prescribed.
(c) On 6 June 2020:
“Wound check Healing
But still feels pain on would site.”
Keflex 500mg Capsule 2 twice a day was prescribed.
(d) On 24 July 2020:
“Reason for visit:
Hypertension
abcess of the thight [sic]
Bactroban 2% cream to be applied three times daily for less than or equal to 10 days and Keflex 500mg capsule daily were prescribed”.
(e) On 20 August 2020:
“Reason for visit
Wound dressing”.
Bactroban 2% cream to be applied three times daily for less than or equal to 10 days was prescribed.
(f) On 26 October 2020:
“car accident last week on 21/10 bruises and pain at right thigh…Examination: multiple skin abrasions noted on lower leg…skin sore on thigh”.
Kenacomb Ointment 1 application three times a day was prescribed.
(g) On 2 December 2020:
“Has leg ulcer on the left thigh
started after spider bite last 2 month
treated in hospital asked him in hospital to take ab until it heals
Examination: Temperature:37
Ex…ulcer on the lateral thigh with necrotic floor.”
Keflex 500mg capsule 1 capsule four times a day was prescribed and Mr Sater was referred for dressing.
(h) On 5 January 2021 Mr Sater was referred to Prof Shan Rajendra.
(i) On 8 January 2021 Mr Sater was treated for sciatica.
(j) On 11 January 2021 in a telehealth consultation a medical certificate was given.
(k) On 18 January 2021 Mr Stater was treated for depression.
(l) On 29 January 2021:
“presented for referral.
Has Crohn’s disease for years, last scope 4 years ago, not taking medication
He developed left thigh ulcer for last 8 months
Seen by gastro and gastro referred him for MRI enterography…”
(m) On 10 March 2021 in a telehealth consultation:
“Patient has Crohn’s disease and had diarrhoea today as was not able to go to work. No blood on diarrhoea, no fever
He called his specialist and is back on regular med which he was of for few weeks.”
(n) On 25 March 2021, Mr Sater was treated for an adjustment disorder “since divorce last year”.
(o) On 31 March 2021 in a telehealth consultation:
“Needs medical certificate
diarrohoea
phx of Crohn’s disease.”
(p) On 14 April 2021:
“presented for pathology referral
Advised by psychologist to have some vit tested. No recent blood test
diarrhoea, no blood
ulcers in thigh
diet
diagnosed with Crohn’s 15 years ago
stopped medications by himself
stopped antihypertensive 3 weeks ago
steroid, trenbolone
testosterone injection
will see gastro next week”.
(q) On 21 April 2021: “for results… seen by gastroenterologist today was prescribed medications for Crohn’s and advised to take vit D”.
(r) On 3 June 2021 in a telehealth consultation:
“Asking for Nexium tablets
Medical Certificate, did surgery to evacuate infection from thigh.”
(s) On 7 June 2021 in a telehealth consultation:
“seen at RPA hospital ED/ post op pain L thigh 5/6/21
with L thigh postoperative pain. Nil signs and symptoms of infection.
Post op L thigh debridement of lesion with cellulitis
Hx of debridement of distal left thigh lesion (20/5/21) thought to be ?pyodrerma gangrenosum.”
(t) On 11 June 2021:
“presented for dressing change and wc cert
said hx of skin ulcer /injury April/May 2021
lateral aspect of L thigh
abscess
Said in late March/21 his leg hit the side door of the car / at work
sliced the scab of his L leg would
went to hospital >>dressing change
in May /21 hit his leg against the desk >> said ripped off the scab
>> admitted to hospital / RPA
seen at RPA hospital; ED/ post op pain L thigh 5/6/21 with L thigh postoperative pain.
Nil signs and symptoms of infection.
Post-op L thigh debridement of lesion with cellulitis.
Hx of debridement of distal left thigh lesion (20/5/21) thought to be ?pyodrerma gangrenosum.
Dressing change
satisfactory healing”
Professor Shan Rajendra in a report dated 19 January 2021 made the following diagnosis:
“Diagnosed with Crohn’s disease 16 years ago, was on Salazopyrin 500 mg daily for a few years and then was stopped by the Specialist, now new onset of probable pyoderma gangerosum on the left thigh.
Current medication: Endone 5mg 6th hourly prn for severe pain from the pyoderma gangerosum”.
In a report dated 13 April 2021, Professor Shan Rajendra repeated the diagnosis made in his report of 19 January 2021 and wrote: “I undertook a quick telephone consultation with Charlie as he was not well with the Crohn’s.”
In a report dated 21 April 2021, Professor Shan Rajendra made a diagnosis of probable small bowel Crohn’s disease waiting OesophagoGastroDuodenoscopy (OGD) and colonscopy, probable pyoderma gangerosum and high testosterone levels. He wrote:
“I reviewed Charlie today. Unfortunately he is not on any medication and he can’t afford to have his panendoscopy in private so I am getting it done at Bankstown Hospital. …Whilst waiting I have started him on on Pentasa 3gm daily, Imuran 100mg daily and I shall catch up with him in 1 months time.”
In a report dated 27 April 2021, Professor Shan Rajendra made a diagnosis of probable small bowel Crohn’s disease waiting OGD and colonscopy, probable pyoderma gangerosum and high testosterone levels. He noted that Mr Sater had newly commenced on Pentasa 3gm daily, Imuran 100mg daily with blood tests pending.
The Medical Assessor, in considering the deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality, wrote:
“a. In my opinion the worker suffers from the following relevant previous injuries, preexisting conditions or abnormalities:
(i) Crohn’s disease.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
According to The Mayo Clinic, the exact cause of pyoderma gangrenosum is unknown but it is not infectious or contagious. It's often associated with autoimmune diseases such as ulcerative colitis, Crohn's disease and arthritis. If a patient has a tendency to develop pyoderma gangrenosum, new skin trauma, such as a cut or puncture wound, may trigger new ulcers.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth”.
The appellant submitted that the Medical Assessor did not consider whether Mr Sater had pyoderma gangrenosum before the work injury on 18 May 2021. The Medical Assessor reported that the Crohn’s disease had been in remission for many years when Mr Sater developed pyoderma gangrenosum. The Medical Assessor also noted that the scab on the left thigh from the insect bite had healed. However, the clinical notes from Dutton Street Medical & Dental Centre and the reports of Professor Shan Rajendra were evidence that Mr Sater had pyoderma gangrenosum before the work injury on 18 May 2021. The clinical notes from Dutton Street Medical & Dental Centre noted that the scab on the insect bite had not fully healed. The reports of Professor Shan Rajendra indicated that the Crohn’s disease was not in remission at the time of the work injury on 18 May 2021.
The Appeal Panel considered that this was a matter where the history pre-injury required careful consideration. The clinical notes and records from Dutton Street reported that Mr Sater had an infection to left lateral thigh in May 2020 due to an incident in the garden. The clinical notes and records then reported that Mr Sater had an insect bite in about October 2020 which caused ulcer on left thigh. Mr Sater stated that prior to the incident in March 2021, the skin had no scab and was healing. These incidents required consideration in determining any deduction to be made pursuant to s 323 of the 1998 Act.
The Appeal Panel was satisfied that the Medical Assessor had erred in failing to consider the notes and records of Dutton Street Medical and Dental Centre and the reports of Professor Shan Rajendra in determining the deduction, if any, to be made under s 323 for pre-existing condition.
Ground 2 – consideration of non-work related conditions
The appellant submitted that the Medical Assessor had, in error, inappropriately assessed WPI as inclusive of the effects of livedo racemose.
The Discharge Referral from Royal Prince Alfred Hospital (RPAH) dated 7 September 2021 noted that the Principal Diagnosis was “Livedo racemose, Pypderma gangrenosum”. In the Admission Summary, Dr Maryan Eghtedari was noted:
“Mr Abdul Sater reported a painful left leg over the last 2 weeks with a new livedo racemosa eruption on the left leg and necrotic eschar on the left posterior thigh. His pyoderma gangrenosum ulcer on the left posterior thigh remained stable.
He denied any new medications in the last 6 weeks apart from treatment for H pylori. He had been using cocaine intermittently and reported exacerbation or the eruption and pain one day following intake”.
The notes also indicated “… His pyoderma gangrenosum ulcer on the left posterior thigh remained stable.” Further, skin biopsies had been taken from the left leg and results were pending at the time of discharge.
In a letter dated 9 September 2021 to Dr Yang, Dr Angelica Tjokrowidjaja, Dermatology Registrar for and on behalf of Dr Margit Polcz, consultant dermatologist, noted Mr Sater had been reviewed in the Dermatology Clinic with Dr Polcz. She noted that he had recently been admitted for onset of livedo racemosa on the left leg extending to the left buttock and to the foot and that he also had a diagnosis of pyoderma gangrenosum with an active ulcer in the left posterior thigh. She wrote:
“The investigations for livedo racemosa have been largely unremarkable. His thrombo-occlusive screen has been negative, with a pending lupus anticoagulant. He has also had a negative vasculitic screen and negative ANA, ENA, dsDNA, C3, C4 and urine was negative for casts. His Hepatitis B, C and HIV serology were negative however he is not immune to Hepatitis B and I have encouraged him to get a booster. He has low Vitamin D and he is currently on Vitamin D supplement.
…The swab from his pyoderma gangrenosum grew serratia. He is at the end of his course of cephalexin and we have also added oral Ciprofloxacin as the seratia is sensitive to this. Unfortunately he developed necrotic eschar on the left posterior thigh due to the livedo racemose and this was ulcerating today. We have re-dressed this and have advised for ongoing analgesia with Panadol and PRN Endone”.
In a report dated 16 September 2021, Dr Sawra Jain, for and on behalf of Dr Polcz, noted:
“Mr Sater had a follow up for pyoderma gangrenosum on his. left thigh as well as following his recent admission for new onset livedo racemosa and necrotic ulcerated areas - ? related to levimasole additive in cocaine…
He has ongoing pain in his proximal thigh erosions however the original pyoderma gangrenosum wound is now pain free…
On examination he had less violaceous areas and dry erosions on his thigh.”
In a report dated 30 September 2021, Dr Jain noted that Mr Sater was seen for follow up of livedo racemosa changes on his left thigh as well as pyoderma gangrenosum. She noted that he was on Prednisone 50mg daily. She wrote: “His pain has improved and he is having reduced new erosions”.
In a report dated 21 October 2021, Dr Jain noted that Mr Sater presented for follow up of pyoderma gangrenosum and livedo racemosa. She wrote:
“He has dry erosions 011 his left thigh today and the original pyoderma gangrenosum wound has re-epithelialized.
He is currently on Prednisone 45mg daily. He reports no pain”.
While the diagnosis of livedo racemose was a new, post 18 May 2021 skin condition also on the left posterior thigh, it did not appear to require any treatment or cause any further problems after late October 2012.
In a letter dated 9 September 2021, Dr Tjokrowidjaja wrote: “The investigations for livedo racemosa have been largely unremarkable”. The Appeal Panel noted that a definitive diagnosis is made by skin biopsy and histological examination.However, the histopathology reports refer to diagnosis of pyoderma gangrenous, but make no mention diagnosis of livido recemose.
The Appeal Panel accepted that the Medical Assessor failed to consider a separate diagnosis of livedo racemosa and the impacts of this. However, the Appeal Panel was not persuaded that Mr Sater actually had that condition given the histopathology reports and even if he did that such a condition caused any impairment subsequent to the work injury and or that there needed to be some reduction in the degree of impairment assessed due to livedo racemose.
Therefore, although the Medical Assessor erred in not considering the separate diagnosis of livedo racemose and whether that condition had caused any impairment, this was not a material error in terms of the assessment made.
GROUND 3 – failure to appropriately consider and apply the criteria under Class 3, Table 8-2 (AMA 5)
The appellant submitted that the evidence did not support that Mr Sater met the criteria of Class 3, Table 8-2 (AMA 5).
On page 6 of the MAC, the Medical Assessor wrote:
“Mr Sater’s skin condition has caused a Class 3 impairment because his skin condition is present and there is limited performance of many of the normal activities of his daily life and he requires constant treatment.
The range for a Class 3 impairment is between 25-54% whole person impairment and I place his impairment right at the upper end of this range at 54%, but 10% of this figure has to be deducted because of his pre-existing Crohn’s disease.
It may seem that an impairment assessment of 54% is excessive but Mr Sater is very severely impaired by his skin condition. His marriage has broken down, he can no longer wear normal clothes, or underclothes, he can no longer sit for any length of time, or drive for fear of developing cramps, he has difficulty sleeping, he cannot sleep with a blanket over his left lower limb, he has difficulty showering and his sex life has been severely restricted”.
Table 8-2 of AMA 5 provides that the following criteria must be met for Class 2:
“Skin disorder signs and symptoms present or intermittently present and limited performance of many activities of daily living and may require intermittent to constant treatment”.
The Appeal Panel accepted that to fall within Class 3, Table 8-2 the worker may require intermittent under Table 8-2 were: Class 1: “requires no or intermittent treatment” Class 2: “may require intermittent to constant treatment”. In short, the treatment requirements for Class 2 and Class 3 were identical.
On page 2 of the MAC, the Medical Assessor noted:
“Present treatment: Mr Sater still goes to RPAH about once a month and he sees his local doctor, Dr Wael Ghannoum, every two weeks. He no longer takes antibiotics, but he regularly rubs a steroid cream into his left thigh and lower leg and although he still takes Prednisone, his dosage has been reduced to 10 mg/day. Mr Sater takes analgesics every day but he no longer takes Endone and he relies on Panadeine Forte and Nurofen”.
The appellant submitted that there was a lack of evidence to support the finding that Mr Sater continued to take Prednisone referring to the reports from Dr Jain dated 16 September 2021, 30 September 2021, 21 October 2021 and 9 December 2021 which set out a plan to wean Mr Sater off Prednisone. The appellant also referred to the clinical records from Dutton Street Medical Centre as at 12 May 2023, submitting that these notes indicated that Mr Sater was not prescribed with Prednisone after December 2021, except for one, seven day cycle on 30 June 2022 (p 158, Reply). The appellant argued that the Medical Assessor’s reference to Mr Sater’s continued Prednisone was inconsistent with the available evidence and the Medical Assessor had erred in this regard.
The Medical Assessor examined Mr Sater on 5 July 2023 and provided details of the ongoing treatment. Mr Sater was still attending RPHA once a month and as well as his GP, Dr Ghannoum, every two weeks. He regularly uses a steroid cream, takes a lower dose of Prednisone and takes analgesics such as Panadeine Forte and Nurofen. The Appeal Panel would infer that the specialists at RPAH would prescribe Prednisone and the fact that the dose had been reduced was consistent with Dr Jain’s treatment plan even though Mr Sater still takes a low dose daily. The Appeal Panel accepted the summary of treatment provided by the Medical Assessor. It was clear that Mr Sater requires intermittent to constant treatment and evidence clearly supported the finding that Mr Sater met the Class 3 requirements for treatment.
The appellant made submissions in relation to “Social effects” of a skin injury as extracted above, on the basis that the Medical Assessor had indicated that the worker’s marriage breakdown was a factor. The appellant argued that the marriage break down was a factor informing the assessment and placement of Mr Sater in Class 3, Table 8-2.
The Medical Assessor’s history noted on page 2 of the MAC that Mr Sater’s wife left him due to the changes in his behaviour caused from steroid and Endone use. The appellant submitted that the Medical Assessor erred in considering the “social effects”, that is a relationship or marriage breakdown, of the skin injury when assessing impairment.
The appellant submitted that Chapter 14 of the Guidelines and the AMA 5 did not allow for consideration of the “social effects”, such as a divorce or relationship breakdown, of a skin injury when assessing impairment. The Appeal Panel noted that Clause 14.4 of the SIRA Guidelines indicated that the criteria in AMA 5 Table 8-2 (p 178) were signs and symptoms of skin disorders, limitations in ADL and requirements for treatment.
The appellant submitted that in Guidelines the examples in Chapter 14 of impairment assessments arising from work related skin injuries provided no example of an impairment assessment in the Guidelines which gives consideration to the “social effects” of a skin injury when assessing impairment. The appellant also noted that the examples in AMA 5 (ranging from pp 178 to 187 of the AMA 5) did not give consideration to the “social effects” of a skin injury when assessing impairment. The appellant submitted that the Medical Assessor’s consideration of the “social effects” of the skin injury when assessing Mr Sater’s impairment was contrary to the AMA 5 and the Guidelines.
The term “social effects” is not used in the Guidelines or AMA 5, nor by the Medical Assessor What needed to be examined was performance of activities of daily living.
The Appeal Panel noted that the history of the relationship break down was part of the history recorded by the Medical Assessor. The Medical Assessor stated that in assessing Class 3 he took into account the skin condition, Mr Sater’s limited performance of many of the activities of daily living and the requirement for constant treatment. However, the Medical Assessor did not adequately identify, in our view, all of the activities of daily living in which there was limited performance and whether the relationship break down was a factor taken into account in assessing Class 3 in Table 8-2 of AMA 5. The Appeal Panel considered that this was an error.
The appellant further submitted that the criteria for limitation on performance on activities of daily living and the symptoms referred to could also be impacted by Mr Sater’s cocaine and non-prescription steroid use. The Appeal Panel noted that there was no evidence or even suggestion in the medical reports that that limitation on performance on activities of daily living were impacted by Mr Sater’s cocaine and non-prescription steroid use.
The Appeal Panel found that the Medical Assessor took an incorrect history and failed to consider the notes and records of Dutton Street Medical and Dental Centre and the reports of Professor Shan Rajendra in determining the deduction, if any, to be made under s 323 for pre-existing condition. In view of the inconsistencies in the history taken by the Medical Assessor and the other evidence, and the need to look at the activities of daily living in more detail, the Appeal Panel considered that it was necessary for Mr Sater to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Medical Assessor Malcolm Linsell re-examined the appellant on 15 December 2023. Medical Assessor Linsell provided the following report:
“1. The workers medical history, where it differs from previous records.
1. Mr Sater had been diagnosed with Crohn’s disease on or about 2005 but was not on any medication.
2. He received a minor injury to the left upper outer thigh in May 2020, thought to be caused by an insect bite.
3. The overlying skin broke down leaving a painful wound approximately 1cm in diameter for which he attended the emergency department of the Royal North Shore Hospital on 3 January 2021.
4. A diagnosis of Pyoderma Gangrenosum was made.
5. He was referred to a gastroenterologist, Professor Shan Rajendra who saw him on 19 January 2021. Professor Rajendra reviewed Mr Sater’s Crohn’s disease and pyoderma gangrenosum and after arranging blood tests was considering recommencing Mr Sater on medication.
6. The wound on Mr Sater’s upper outer thigh eventually developed a scab which was present, but not bothering him, when Mr Sater started work with Ozcar on 22 February 2021.
7. On or about March 2021, Mr Sater scraped his upper outer left thigh while moving a car in the car yard.
8. This knocked off the scab from the previously diagnosed pyoderma gangrenosum, causing pain but as the wound was small it did not initially appear to be of concern.
9. This wound again healed with a scab.
10. On 18 May 2021, Mr Sater scraped a different portion of his left thigh on his desk whilst at work.
11. This new wound was separate from the original wound, about 10cm more distal on the left outer thigh.
12. It was this wound that required him to be hospitalised. He was told infection was travelling proximally to his left hip and distally to the upper part of his lower leg.
13. He subsequently required several surgical debridements and an extended hospital stay.
14. His leg was extremely painful requiring Endone and Panadeine Forte. He remains on these tablets today.
15. In September 2021 he was readmitted to hospital with a diagnosis of Livedo Racemosa however Mr Sater insists the wounds on his leg and significant pain predates this diagnosis.
2. Additional history since the original Medical Assessment Certificate was performed.
1. Mr Sater has been taking Salazopyrin for his Crohn’s disease but stopped this about a month ago. He has now developed diarrhoea again.
2. He also takes Endone and Panadeine Forte as well as Prednisolone 10mg per day. His Prednisolone has been reduced from 50mg per day, but he is unable to get below 10mg per day.
3. Mr Sater now requires a full-time carer to assist him with most physical activities.
4. His leg is constantly in pain, is hypersensitive and cold.
5. In assessing his Activities of Daily Living, I considered each of the following:
SELF-CARE
Mr Sater requires the help of a carer to shower. It is too painful for water to fall on his leg so his leg needs to be out of the shower. He is unable to dress himself and requires the carer to assist. He is able to urinate and defecate unhindered and can eat normally.
COMMUNICATION
Mr Sater is unhindered in his communication.
PHYSICAL ACTIVITY
Mr Sater now walks with the aid of a cane. He has limited ability to stand or sit for any period of time and is most comfortable lying in bed with his left leg elevated. Climbing stairs is not possible.
SENSORY FUNCTION
Mr Sater’s leg is hypersensitive to touch and even minor touch causes significant pain. He cannot wear long pants and wears loose shorts all the time. His leg frequently cramps and feels particularly cold all the time. He is most comfortable with his leg under a blanket.
NONSPECIALIZED HAND ACTIVITIES
Mr Sater’s hand function is normal.
TRAVEL
Mr Sater’s car is now fitted out for him so he can travel without knocking his leg. He is unable to drive and requires a carer to help him in and out of a car..
SEXUAL FUNCTION
Mr Sater is unable to get an erection and is not able to masturbate. If this was possible, he is unable to have anyone touch or go near his left leg. He finds this most distressing as he was very sexually active prior to his injury.
SLEEP
Mr Sater suffers from insomnia because the pain in his leg wakes him up. He is unable to sleep on his left side and even turning in bed is painful and takes an extended time. The coldness of his leg also contributes to his poor sleeping patterns.
3. Findings on clinical examination
1. Mr Sater limped into the consulting rooms with the use of a cane.
2. I found it easy to communicate with him, though he is clearly bothered by his left leg, taking pride to show me a photograph of himself in the gym prior to his injury.
3. He stated his memory has been impacted by his medication and was unsure of the timing of some of the events in his history.
4. There has been considerable wasting of the left thigh compared with the right, consistent with disuse of the left leg.
5. His left outer thigh and lower leg has a mixture of indented, irregular pigmented scars extending from his left hip down to about 10cm from the knee.
6. There are also motley, livid patches from mid-thigh to upper lower leg presumably a remnant of the diagnosis of Livedo Racemosa.
7. The following images taken by me show the distinction between the upper scar associated with the insect bite and first scratch and the more distal larger scar, approximately 10cm lower, representing the site of the second injury.
4. Results of any additional investigations since the original Medical Assessment Certificate
1. No further investigations were performed.
1. SUMMARY
•summary of injuries and diagnoses:
Severe scarring of the left leg secondary to pyoderma granulosum.
•consistency of presentation
Consistent
2. EVALUATION OF PERMANENT IMPAIRMENT
My answers to the following questions regarding the assessment of impairment and/or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:
a. Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body par/system: No.
b. Have all body parts/systems stabilized/reached maximum medical improvement? Yes.
c. If not, please list those injuries not yet stable/at maximum medical improvement: N/A
d. If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? N/A
e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? Yes.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Mr Sater had pre-existing Crohn’s disease and a previous diagnosis of pyoderma granulosum of the left leg.
3. THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
My assessment is based on the Mr Sater’s clinical notes and previous statements, as well as the history as supplied by Mr Sater to me personally and upon my examination of his skin.
4.REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment
•In my opinion the scarring and associated symptoms are equivalent to a Class 4 Impairment of the whole person, because the skin disorder signs and symptoms are constantly present, and there is limited performance of many activities of daily living, including intermittent confinement at home, and he requires intermittent to constant treatment.
•In my opinion, his impairment lies towards the lower end of this class at 56%.
•Mr Sater has a long history of Crohn’s disease which is a well-recognised precursor of pyoderma gangrenosum. Furthermore, Mr Sater had a diagnosis of pyoderma gangrenosum in January 2021, prior to him commencing work at Ozcar in February 2021.
•Mr Sater aggravated the wound, previously diagnosed as pyoderma gangrenosum with the first scratch on or about March 2021, however this did not appear to be a major issue.
•It was the second scratch to the thigh on 18 May 2021 in a completely different location that created a large wound, which became infected, extending proximally to his hip and distally to his upper leg, which required several surgical debridements and an extended hospital stay.
•It is this second wound that has been the precursor for the extreme pain and sensitivity that is now present.
•It is my opinion the Livedo Racemosa is not a work-related injury, and it is not clear if this is contributing to his ongoing symptoms.
•Consequently, with a long history of Crohn’s Disease and a pre-existing diagnosis of pyoderma gangrenosum, I would place a deduction for pre-existing injury, condition or abnormality at 1/2 of the WPI.
In making that assessment I have taken account of the following matters:-
•A minor scratch from scraping the skin, in a person who is not immunocompromised, usually heals without issue.
•My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.
1. I have read the Medical Assessment Certificate provided by Dr John Giles, who assessed Mr Sater’s Whole Body Impairment at 54% - 1/10 = 49%.
2. When Mr Sater was assessed on 11 July 2023, Mr Sater was able to walk unaided.
3. In my opinion, his condition has progressed since then as he can now only walk with the aid of a cane.
4. He is now primarily confined to his home and as such he now represents a Class 4 impairment.
5. My assessment is that he is at the lower end of Class 4, namely 56%.
6. Where I differ from Dr Giles is the amount of to be deducted for a pre-existing condition.
7. In a patient without compromise of the immune system, minor skin scratches received at work rarely cause any ongoing issues.
8. The pre-existing conditions of Crohn’s disease and Pyoderma Gangrenosum in my opinion play a much higher role in Mr Sater’s current disability and I believe a 50% reduction of the WPI is fair and reasonable.”
The Appeal Panel has adopted the report and findings of Medical Assessor Linsell. The Appeal Panel agreed that Mr Sater should be assessed as Class 4 in Table 8-2 of AMA 5 and placed in the lower end of the range with 56% WPI.
Medical Assessor Linsell found on examination that Mr Sater had motley, livid patches from mid-thigh to upper lower leg presumably a remnant of the diagnosis of Livedo Racemosa. However, as noted above the Appeal Panel is not persuaded that Mr Sater actually had that condition given the histopathology reports and even if he did that such a condition caused any impairment subsequent to the work injury and that a reduction should be made in the assessment of impairment.
In terms of the deduction to be made pursuant to s 323 of the 1998 Act, the Appeal Panel noted that Dr Lobel, in his report of 10 December 2022, placed Mr Sater in Class 2 of Table 8.2 of AMA 5 and assessed 20% WPI. He made no deduction for a pre-existing condition. Dr Ingram in his report of 21 March 2023 also placed Mr Sater in Class 2 of Table 8.2 of AMA 5 and assessed 20% WPI. He made a deduction of one half for a pre-existing condition, namely, Crohn’s disease, as the initiating factor. The Medical Assessor made a deduction of one tenth for Crohn’s disease.
The Appeal Panel was definitely satisfied that Mr Sater had diagnoses of two pre-existing conditions at the time of the work injury, namely, Crohn’s disease and Pyoderma Gangrenosum. None of the other doctors identified Pyoderma Gangrenosum as a pre-existing condition and therefore did not consider what deduction, if any, should be made for Pyoderma Gangrenosum.
Medical Assessor Linsell considered that a deduction of one half on behalf in respect of both those conditions was appropriate. There was also a history of pre-existing injury. Mr Sater received a minor injury to the left upper outer thigh in May 2020, thought to be caused by an insect bite. On 29 January 2021, the clinical notes from Dutton Street Medical Centre reported that an ulcer had been present for at least 8 months. Medical Assessor Linsell, in his re-examination, noted that the overlying skin broke down leaving a painful wound approximately 1cm in diameter for which he attended the emergency department of the Royal North Shore Hospital on 3 January 2021 and a diagnosis of Pyoderma Gangrenosum was made.
Mr Sater aggravated the wound, previously diagnosed as pyoderma gangrenosum with the first scratch on or about March 2021. However, it was the second scratch to the thigh on 18 May 2021 in a completely different location that created a large wound, which became infected, extending proximally to his hip and distally to his upper leg, which required several surgical debridements and an extended hospital stay.
The Appeal Panel concluded that a deduction of one half was appropriate taking into account the pre-existing injury and pre-existing conditions, namely, Crohn’s disease and Pyoderma Gangrenosum. The Appeal Panel was satisfied that a one half proportion of the impairment assessed was due to the earlier injury in May 2020 and the pre-existing conditions. The Appeal Panel was of the view that the pre-existing conditions contributed substantially to the long-term sequelae of his injury . The Appeal Panel considered that a deduction of one tenth would be at odds with the evidence.
Finally, Mr Sater submitted by way of cross-appeal, that if there is any error by the Medical Assessor, it was for finding any level of pre-existing WPI. Mr Sater submitted that the Medical Assessor ought to not have found any pre-existing whole person impairment due to Crohn’s disease under s 323 for numerous reasons. No cross-appeal has been properly made and in any event the Appeal Panel does not accept the submission made in relation to it for the reasons set out above.
In summary, the Appeal Panel assessed Mr Sater as having 56% WPI of the skin and made a deduction of one half resulting in a total assessment of 28% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
11 May 2023 should be revoked and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Applicant: | Charlie Sater |
Respondent: | Ozcar Pty Ltd |
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 Medical Assessor John Giles 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.Skin | 18/05/21 | Chapter 14 Para 14.2, 14.4, 14.5, 14.7, 14.8, 14.9 p73 | Chapters 1 & 8 Table 1-2 p 4 Table 8-2 P 178 | 56% | 1/2 | 28% |
| Total % WPI (the Combined Table values of all sub-totals) | 28% | |||||
0
4
4