Penfold v Caravan & RV Central Pty Ltd

[2024] NSWPICMP 81

DETERMINATION OF APPEAL PANEL
CITATION:	Penfold v Caravan & RV Central Pty Ltd [2024] NSWPICMP 81
APPELLANT:	Shane Penfold
RESPONDENT:	Caravan & RV Central Pty Ltd
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Michael McGlynn
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	20 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal in respect of the impairment assessment for scarring; assessment on the basis of incorrect criteria alleged; Appeal Panel satisfied as to error; re-examination was considered necessary by a Medical Assessor Member of the Appeal Panel; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 21 June 2023 Mr Shane Penfold (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Giles, plastic and reconstructive surgeon and Dr Farhan Shahzad, occupational physician, who were appointed Lead and Non-Lead Medical Assessors, who issued a Medical Assessment Certificate (MAC) on 31 May 2023.

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):

   ·        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. Rule 128 of the Personal Injury Commission Rules 2021 (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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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 Procedural Direction PIC7.

2. The appellant requested a re-examination by a medical assessor member of the Appeal Panel. As the Appeal Panel found error, a re-examination was considered necessary.

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.

Further medical examination

1. Dr Michael McGlynn of the Appeal Panel conducted an examination of the worker on 11 December 2023 and reported to the Appeal Panel.

Medical Assessment Certificate

1. The parts of the medical certificate given by the Medical Assessors 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 medical dispute was assessed by Dr John Giles, Plastic & Reconstructive Surgeon and Dr Farhan Shahzad, Occupational Physician, who were appointed Lead and Non-Lead Medical Assessors respectively.

4. The matter was referred to the lead Medical Assessor Dr Giles in respect of scarring as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·        Date of injury: 2^nd November 2020

   ·        Body parts/systems referred: Scarring - TEMSKI

   ·        Method of assessment: Whole Person Impairment.”

5. The lead Medical Assessor, Dr Giles, issued a MAC incorporating the assessment of the non-lead Medical Assessor as follows:

Name of Medical Assessor	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 AMA Guides	% WPI	%WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality	Sub-total/s % WPI (after any deductions in column 7)
Farhan Shahzad	Left upper extremity	02.11.’20	Chapters 2.7 & 2.8	Chapter 16 pages 438, 439 & 448 Tables 16-1, 16-2. 16-3	3%	0	3%
John Giles	The skin	02.11.’20	Chapter 14 page 73 paragraphs 14.1 – 14.11 Table 14.1	AMA 5 Chapter 11.3 pages 255-256 Table 11-5	5%	0	5%
Total % WPI (the Combined Table values of all sub – totals)						8%

1. The worker appealed. The appeal concerns only the assessment of 5% whole person impairment (WPI) for scarring. There is no appeal by either party concerning the assessment of 3% WPI for the left upper extremity.

2. In summary, the appellant submitted on appeal that the lead Medical Assessor, Dr Giles, made an assessment on the basis of incorrect criteria and made demonstrable errors which included the following:

   (a)   a misapplication of the Guidelines  and AMA 5 Guides by utilising Chapter 11.3, Table 11.5 to assess permanent impairment.

   (b)   Failing to provide sufficient reasons.

   (c)   Failing to properly apply the Workcover Guides and the AMA 5 Guides by failing to make appropriate enquiries on examination.

   (d)   By misapplying the Workcover Guides

3. The respondent employer, Caravan & RV Central Pty Ltd (the respondent) submitted that the Lead Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make a demonstrable error and the MAC should be confirmed.

4. The Appeal Panel was satisfied that error had been made by the Lead Medical Assessor as the Lead Medical Assessor referred to Chapter 11.3, Table 11.5 of AMA 5 which is for facial disfigurement which does not apply here and in these circumstances the Appeal Panel considered it necessary for the worker to undergo a re-examination and Dr McGlynn, a Medical Assessor on the Appeal Panel who was appointed to undertake the re-examination. Dr McGlynn conducted the re-examination on 11 December 2023 and reported to the Appeal Panel as follows: (emphasis in original)

   “PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W2268/23
Appellant:	Shane Penfold
Respondent:	Caravan & RV Central Pty Ltd
Date of Determination:	14 December 2023

Examination Conducted By:	Michael McGlynn
Date of Examination:	11 December 2023

1.    The workers medical history, where it differs from previous records

No different

2.    Additional history since the original Medical Assessment Certificate was performed

Shane Penfold stated scarring the on his abdomen and on his right thumb is readily visible an limits social and recreational activities. He avoids taking his shirt off in public and often tries to cover the scarring on his left thumb from the view of others. These factors limit participation in some social and recreational activities he would normally attend.

The skin flap on his left thumb is numb with no protective sensation. This makes it prone to accidental injury.

Mr Penfold stated he was having no treatment for scarring.

3.    Findings on clinical examination

Shane Penfold was 178 cm tall and weighed 112 kg. He had a fair skin colour.

Abdomen:

He was overweight with an apron of skin and fat that folded across the suprapubic area.

On the left lower abdomen and hip there was a transverse-oblique surgical scar 345 mm x 5 mm, hypopigmented with patches of pink scar causing easily identifiable colour contrast, slightly raised and firm in the pink areas due to hypertrophy, with clearly visible stitch marks, and no scar adherence.

At the level of mid anterior thigh, there was a scar from the transverse-oblique surgical scar extending groin crease, 40 mm x 10 mm, hypopigmented with noticeable colour contrast, with minimal trophic features, clearly visible stitch marks, and no scar adherence.

Left Thumb:

An abdominal skin flap wrapped around the radial (lateral) half of left thumb from dorsal midline to junction of lateral and anterior surfaces of thumb, and from proximal edge of thumbnail to MCP joint.

The skin flap was 60 mm x 60 mm, darkly hyperpigmented with distinct colour contrast, visibly raised above the level of the adjacent skin, with visible stitch marks, minimal trophic features, and adherence at nail bed edge. The skin flap was numb with no protective sensation.

4.    Results of any additional investigations since the original Medical Assessment Certificate

None

Opinion:

NSW Workers Compensation Guidelines 4^th Edition paragraph 14.2, page 73 states, disfigurement, scars and skin grafts may be assessed as causing significant permanent impairment when the skin condition causes limitation in the performance of activities of daily living (ADL).

The Guidelines paragraph 14.5 states, The skin is regarded as a single organ and all non-facial scarring is measured together as one overall impairment, rather than assessing individual scars separately and combining the results.

AMA5 – Glossary Table Page 599 lists nine ADL with examples:

Self-care, personal hygiene (urinating, defecating, brushing hair, bathing, dressing, eating)

Communication (writing, typing, seeing, hearing, speaking)

Physical activity (standing, sitting, reclining, walking, climbing stairs)

Sensory function (hearing, seeing, tactile feeling, tasting, smelling)

Hand functions (grasping, lifting, tactile discrimination)

Travel (riding, driving, flying)

Sexual function (orgasm, ejaculation, lubrication, erection)

Sleep (restful, nocturnal sleep pattern)

Social and Recreational Activities (participating in individual or group activities, sports)

Shane Penfold has limitation of few ADL, namely Social & Recreational activities, and Sensory function due to loss of protective sensation.

He is having no treatment for scarring at present, so there is no to intermittent treatment.

The Guides direct use of AMA5 Table 8-2, page 178 to classify the skin impairment. The scarring seen at this assessment and caused by the work accident is Class 1 as there are skin disorder signs and symptoms present, and there is limitation in performance of few ADL, and no or intermittent treatment is required. The range is
0-9%WPI. NSW Workers Compensation Guidelines 4th Edition paragraphs 14.7 & 14.8 then direct use of the Table for Evaluation of Minor Skin Impairment (TEMSKI).

TEMSKI Criteria:

·        Shane Penfold is conscious of the scarring and disfigurement

·        there is distinct colour contrast with the surrounding skin

·        he is able to easily locate the scarring

·        there are visible trophic changes

·        stitch marks are clearly visible

·        the anatomic location of thumb is clearly visible with usual mode of dress

·        there is visible contour defect;

·        there is minor limitation of few ADL, and physical agents may temporarily increase the limitation due to lack of protective sensation for left thumb skin flap

·        no or intermittent treatment is required;

·        there is some scar adherence.

Seven of ten scar criteria fit both 3-4% WPI & 5-9% WPI TEMSKI zones.

In my opinion the best fit is in the middle of 3%-9% range at 6% WPI.

There is no pre-existing injury or condition of relevance and no deductible proportion.

Signed:

MICHAEL MCGLYNN”

1. The Appeal Panel adopts the findings and the report of Dr McGlynn.

2. This means the total WPI assessed as a result of injury on 2 November 2020 is 3% WPI for left upper extremity and 6% for scarring – TEMSKI giving a combined value of 9% WPI.

3. Accordingly the Appeal Panel will revoke the MAC and issue a new MAC with this assessment.

4. For these reasons, the Appeal Panel has determined that the MAC issued on
   18 August 2023 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

Matter number:	W2268/23
Applicant:	Shane Penfold
Respondent:	Caravan & RV Central 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 Lead 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.Left Upper Extremity	2.11.20	Chapters 2.7 & 2.8	Chapter 16, pages 438,439 & 448 Tables 16-1,16-2,16-3	3%	0	3%
2.The skin	2.11.20	Ch 14, pages 73-76. Paragraph 14.1 to 14.11 & TEMSKI	Ch 8, Section 8.7, page 178, Table 8.2	6%	0	6
Total % WPI (the Combined Table values of all sub-totals)					9