Parker v The Building Guild Staff Management Pty Ltd

Case •

[2021] NSWPICMP 104

•

28 June 2021
DETERMINATION OF APPEAL PANEL
CITATION: Parker v The Building Guild Staff Management Pty Ltd [2021] NSWPICMP 104
APPELLANT: Mitchell Parker
RESPONDENT: The Building Guild Staff Management Pty Ltd
APPEAL PANEL: Member Jane Peacock
Dr Brian Noll
Dr Tomassino Mastroianni
DATE OF DECISION: 28 June 2021
CATCHWORDS: WORKERS COMPENSATION- Injury to upper extremity, left lower extremity and scarring; the appellant appealed on the basis that the Medical Assessor (MA) did not assess the left lower extremity in respect of the left ankle; in circumstances where the appellant complained during the examination that the left ankle had started hurting two weeks prior to examination; Held- the MA did not err and was not required to make an assessment of the left ankle which was not part of the claim and about which there was no other evidence; MAC confirmed.

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

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 2 March 2021 Mr Mitchell Parker (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Associate Professor Philip Truskett, a MA, who issued a Medical Assessment Certificate (MAC) on 8 February 2021.

  2. 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):

    ·        availability of additional relevant evidence,

    ·        the assessment was made on the basis of incorrect criteria, and

    ·        the MAC contains a demonstrable error.

  3. 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.

  4. 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.

  5. 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

  1. 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.

  2. As a result of that preliminary review, the Appeal Panel determined that the worker should not undergo a further medical examination because the Appeal Panel was not satisfied as to error by the MA. It is well settled that the Appeal Panel cannot require re-examination unless error has been found which it has not in this case for the reasons explained more fully below (see NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013NSWSC 1792.)

EVIDENCE

Documentary evidence

  1. 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

  1. 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

  1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

  1. 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.

  2. 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.

  3. 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: 20 April 2016

    ·    Body parts/systems referred: left lower extremity, left upper extremity

    ·    Method of assessment: whole person impairment

  1. The MA issued a MAC certifying as follows:

Body Part or system Date of Injury Chapter,
page and paragraph number in NSW workers compensation guidelines

Chapter, 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)
1.Left wrist 20.4.16

Chapter 2,
page 10-23.

 Section 16.4g page 466, Figure 16-29, page 467. Figure 16-31, page 469 and Table 16-3, page 439 10% 0 10%
2. Left knee 20.4.16 Chapter 3
page 13. 		5th Edition; Chapter 17. Table 17-10, page 537 and Table 17-31, page 544 2% 0 2%
3. Scarring 20.4.16

Chapter 14, page 73 and the TEMSKI table page 74

2% 0 2%
Total % WPI (the Combined Table values of all sub-totals) 14%

  1. The worker appealed.

  2. The appellant submitted in summary as follows:

    ·        The MA was required to explain why the left ankle injury was unrelated and why it did not attract any WPI assessment.

    ·        The MA should have included 1%, 2% of 3% additional WPI as indicated in clause 1.32 of the Guidelines, given that muscle wasting of the left leg would occur unless the muscle continued to be exercised, that is, treatment continued.

  3. The respondent submitted that the MA did not err and the MAC should be confirmed and made submissions in summary as follows:

    ·        The appellant has failed to identify what additional relevant information is the subject of a ground of appeal and/or whether such additional relevant information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment with the MA.

    ·        In the absence of any medical evidence to establish a relationship between the appellant’s  work injury on 20 April 2016 and the left ankle condition it was open to the MA to find that the alleged left ankle condition was not related to the work injury and he was not required to provide reasons for finding that it was unrelated.

    ·        Neither the reports of Dr Poplawski nor Dr Vote refer to a left ankle injury.

    ·        An appeal of the MAC is not the appropriate forum for the appellant to raise an allegation of further injury.

    ·        It was open to the MA to find that the appellant was not likely to revert to the original degree of impairment (of the left knee with regard to muscle wasting) if treatment was withdrawn.

  4. The respondent correctly points out that no additional evidence has been put by the appellant except for the appellant’s submissions which do not constitute evidence.

  5. There is no evidence to indicate that any disorder of the left ankle constitutes a consequential injury. There is likewise no evidence to indicate that any additional WPI would be applicable because of potential recurrence of thigh muscle wasting in the absence of ‘long-term treatment’. The following issues are relevant when arriving at these conclusions.

  6. Reports of a treating orthopaedic surgeon, Dr Tim Musgrove, refer to injuries sustained in relation to both wrists and the left knee; there is no mention of any complaint in relation to the left ankle.

  7. Several reports of Dr Chris Smithers, a treating orthopaedic surgeon, between27 June 2016 and 30 March 17, and the Royal Prince Alfred Hospital clinical records, make no reference to any complaint in relation to the left ankle.

  8. There has been no evidence put before the MA or the Panel to indicate that any radiological investigation of the left ankle was undertaken, that is, the documents before the MA and hence the Panel do not include any left ankle imaging studies.

  9. The appellant’s statement dated 14 April 2020 does not refer to any complaint in relation to the left ankle.

  10. The independent medical expert’s (IME) reports of Dr Poplawski dated 15 November 2017 and 30 April 2018 do not refer to any injury or consequential disorder in relation to the left ankle. He noted 2 cm of left thigh muscle wasting on examination on each occasion and a restricted range of left wrist movement.

  11. The IME report of Dr James Vote dated 3 April 2018 referred to ongoing complaints in relation to his left wrist and left knee but made no mention of any symptoms in relation to his left ankle. On examination he noted a restricted range of left wrist movement, a full range of left knee movement but ‘mild quadriceps wasting’. He made an assessment of 10% WPI in relation to the left wrist and an additional 2% in relation to scarring. He did not assess any impairment in relation to the quadriceps wasting indicating that it ‘… is potentially reversible with an adequate physiotherapy program’.

  12. In the MAC the MA noted that the appellant walked with a slight limp involving his left leg… The limp related to pain he had recently acquired in his left ankle over the preceding two weeks. Examination was said to reveal tenderness and discomfort in the left ankle which was unrelated. Thigh measurements were noted to be equal in circumference. Two present WPI related to patellofemoral crepitus. The MA indicated that the left ankle complaint ‘was unrelated’. He did not need to give a greater explanation than this as there is no evidence that the left ankle condition results from the injury. The left lower extremity was referred to the MA based on the pleaded injury to the left knee.

  13. Paragraph 1.32 of the Guides provides as follows:

    ‘Where the effective long-term treatment of an illness or injury results in apparent substantial total elimination of the claimant’s permanent impairment but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%’.

  14. Paragraph 1.32 refers to ‘long-term treatment’. There is no evidence to indicate that the appellant was receiving ‘long-term treatment’. Unlike a specific beneficial effect of medication it is not possible to determine that a recurrence of thigh muscle wasting would occur in the longer term in the absence of ‘long-term treatment’. Paragraph 1.32 relates to ‘apparent substantial or total elimination of the claimant’s permanent impairment’. This is not applicable in this matter.

  15. Accordingly, the Panel can discern no error by the MA and will confirm the MAC.

  16. For these reasons, the Appeal Panel has determined that the MAC issued on 8 February 2021 should be confirmed.

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Campbelltown City Council v Vegan [2006] NSWCA 284