Pun v F C Building Pty Ltd
[2023] NSWPICMP 136
•12 April 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Pun v F C Building Pty Ltd [2023] NSWPICMP 136 |
| APPELLANT: | Chandra Bahadur Pun |
| RESPONDENT: | FC Building Pty Ltd |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 12 April 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appellant suffered fractures of C7/T1 vertebra, treatment of which included internal fixation of vertebra from C4-T4; Medical Assessor (MA) assessed respondent had 31% whole person impairment (WPI) relating to his cervical spine and 0% WPI relating to his thoracic spine; whether MA correctly applied paragraph 4.32 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021; Appeal Panel held he did not; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 January 2023 Chandra Bahadur Pun, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor. The medical dispute that was referred to Medical Assessor Anderson to assess related to the degree of permanent impairment of the appellant resulting from an injury he suffered on 25 March 2019 whilst employed by the respondent, FC Building Pty Ltd. The medical dispute was described in the referral in these terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 25 March 2019
Body part/s referred: Cervical spine
Thoracic spine
Left upper extremity (wrist)
Right lower extremity (foot),
Scarring (TEMSKI)
Method of assessment: Whole Person Impairment”
Medical Assessor Anderson issued a Medical Assessment Certificate (MAC) in response to that referral on 20 December 2022. In that, he certified that he had assessed the appellant had 19% whole person impairment (WPI) from his injury. In a table appended to the MAC, he set out the separate components comprising the appellant’s WPI and how those components combined to comprise the appellant’s WPI from his injury. That table was in the following form:
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)
Cervical spine
25/03/19
Chap 4 P24
P 392 T15-05
31
0
31
Thoracic spine
(Combined with cervical spine)
Left upper extremity (wrist)
Chap 2 P10
P 467 F 16-28
P 469 F 16-31
0
0
0
Right lower extremity (foot)
Chap 3 P13
P 537 T 17-11
and 12
0
0
0
Scarring
P74 T14.1
2
0
2
Total % WPI (the Combined Table values of all sub-totals)
32
The appellant’s appeal relates to the Medical Assessor’s assessment of his impairment of his cervical spine and thoracic spine.
The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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.
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 employed the appellant as a construction worker from early 2019. On 25 March 2019 the appellant was working at a construction site at Maroubra. Whilst standing on scaffolding around 5-6 metres above the ground, the appellant fell. He was taken by ambulance to St Vincent’s Hospital at Darlinghurst and subsequently transferred on that day to Prince of Wales Hospital where he was admitted for a period of 18 days. He was then transferred to the Sydney Eye Hospital where the rehabilitation department of the Prince of Wales Hospital is situated. He remained there for 41 days.
Investigations done after his arrival at Prince of Wales Hospital revealed he had suffered a displaced fracture of the cervical spine at C6 and a fracture of the left pedicle at C7, a facet joint dislocation at C7/T1, a comminuted fracture of his right distal radius, and a comminuted and displaced fracture of the left distal radius. An X-ray on 5 June 2019 revealed a fracture of the first metatarsal of his right foot.
The appellant had surgery on 26 March 2019. The six levels of his spine between C4 and T4 were then internally fixed to stabilise cervical and thoracic spines. Internal fixation was applied to the fracture of his left wrist on 28 March 2019. His right lower extremity was managed conservatively by a cast and then a moon boot.
On 9 July 2021 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation of $256,220 from it under s 66 of the Workers Compensation Act1987 (the 1987 Act) for permanent impairment of 51% from his injury. The appellant’s solicitors notified the insurer that the appellant relied upon reports of Dr Michael Ryan dated 16 September 2020, 20 October 2020 and 14 April 2021. The Appeal Panel notes that Dr Ryan is an orthopaedic and spinal surgeon who examined the appellant on 16 September and 20 October 2020. In a report of 20 October 2020 addressed to the appellant’s solicitors he detailed that he assessed the appellant had 29% WPI relating to his cervical spine, 23% WPI relating to his thoracic spine, 6% WPI relating to his left upper extremity and 5% WPI for scarring relating to the surgery to his cervical and thoracic spines, which combined to 51% WPI.
The respondent’s solicitors organised for the appellant to be examined by orthopaedic surgeon Dr Frank Machart on 27 October 2021. In a report dated 3 November 2021 addressed to the respondent’s solicitors Dr Machart advised he assessed the appellant had 35% WPI from his injury. Dr Machart advised this comprised 2% WPI for scarring of the right iliac crest, which had been used for a bone graft for the surgery of the appellant’s thoracic and cervical spines, 30% WPI for cervicothoracic spine, 3% WPI for the right lower extremity, 3% WPI for the left upper extremity, which combined to 35% WPI.
On 1 December 2021 the respondent’s solicitors wrote to the appellant’s solicitors advising it that the respondent offered to pay the appellant compensation of $108,390 to resolve his claim for compensation under s 66. On 16 September 2022 the appellant commenced proceedings in the Personal Injury Commission (Commission) seeking a determination of his claim for compensation under s 66.
As is apparent from what has been said above, a delegate of the President referred the matter to the Medical Assessor to assess the medical dispute relating to the degree of permanent impairment the appellant had from his injury.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because firstly, neither party challenged the Medical Assessor’s findings from his examination of the appellant and hence the Appeal Panel can rely upon that data, as well as the other material, to determine the appeal. Secondly, the issue raised in the appeal in substance relates to the application of the criteria set out in the Guidelines with respect to the assessment of the appellant’s impairment relating to his cervical spine and thoracic spine and whether the Medical Assessor computed the appellant’s impairment relating to that in accordance with the Guidelines, and the material before the Appeal Panel is sufficient to enable it to deal with that issue. The Appeal Panel observes too that neither party sought that the appellant be re-examined.
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
As mentioned above the appeal is limited to the Medical Assessor’s assessment of the appellant’s impairment relating to his cervical spine and thoracic spine. No challenge has been made to the Medical Assessor’s findings from his examination of the appellant’s cervical spine and thoracic spine.
The reasons the Medical Assessor provided for assessing the appellant to have 31% WPI relating to his cervical spine and 0% WPI relating to his thoracic spine were as follows:
“The cervical spine is effectively combined with the thoracic spine since the injuries and associated spinal fusion spans across both spinal areas. This is addressed in AMA 5 Page 392, Table 15-05. Since there has been a fusion, this places Mr Pun into DRE Cervical Category IV. This provides a whole person impairment ranging between 25% and 28%. For the activities of daily living there is a further 2%, giving 27%.
From the SIRA Guidelines Page 29, Table 4.1, five further spinal levels have been involved in the spinal fusion which therefore provides a further 5%, which is combined with the range of movement of 27%, giving 31%.
Thoracic Spine. This is effectively combined with the assessment of the cervical spine and therefore technically rates as 0%.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the approach the Medical Assessor adopted, whereby the Medical Assessor treated the cervical spine and thoracic spine as one assessable region because the injury suffered and associated spinal fusion spanned across both spinal areas, was wrong. The appellant submitted that if an injury affects more than one spinal region, paragraph 4.32 of the Guidelines applies such that any impairment of the different spinal regions are to be assessed separately and combined using the Combined Values Chart of AMA 5. The appellant submitted that there is no provision within either the Guidelines or AMA 5 that authorised the approach the Medical Assessor adopted. The appellant submitted that AMA 5 does not address the circumstance where the injury affected more than one spinal region whereas paragraph 4.32 of the Guidelines does and, consistent with paragraph 1.1 of the Guidelines, the Guidelines take precedence over AMA 5.
The appellant submitted that the correct assessment of his impairment with respect to his cervical spine is 30% WPI. This is because his cervical spine is to be assessed by reference to DRE Cervical Category IV due to the fusion from C4-C5. The base rating for this category is 25% WPI. To that must be added 2% WPI for the compromise his cervical spine impairment has on activities of daily living, which is what the Medical Assessor assessed and which the appellant does not dispute. To that, must be added 4% WPI for surgery at three levels of cervical spine between C5-T1, to produce the result of 30% WPI.
The appellant submitted that the correct rating for the impairment of his thoracic spine is 22% WPI. This is because his thoracic spine is to be rated as DRE Thoracic Category IV because of the fusion at T1-T2, for which the base rating is 20% WPI. To that must be added 2% WPI for the fusion at T2-T4 which produces 22% WPI.
The appellant submitted that when those impairments are combined with the 2% WPI for scarring, the result is 46% WPI.
In reply, the respondent submitted that the assessment the Medical Assessor made of the appellant’s impairment was permissible and accorded with the Guidelines and AMA 5. The respondent agreed with the appellant’s submissions that the Guidelines prevail over AMA 5. The respondent referred to paragraph 4.32 of the Guidelines and submitted that because the appellant sustained a fracture at the transition zone of his cervical and thoracic spine, paragraph 4.32 required the Medical Assessor to assess the appellant’s impairment by reference to Table 15-5 of AMA 5, which relates to the cervical spine. The respondent referred to a decision of another medical appeal panel in the case of David Strain v ANT Building Pty Ltd[1] to support its submission.
[1] [2020] NSWWCCMA 16.
FINDINGS AND REASONS
The procedures on appeal are contained in s328 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.
The Appeal Panel accepts the submissions the appellant has made and rejects the submissions the respondent has made.
Paragraph 4.32 of the Guidelines reads as follows:
“Within a spinal region, separate spinal impairments are not combined. The highest-value impairment within the region is chosen. Impairments in different spinal regions are combined using the combined values chart (AMA5, pp 604-06).
If there are adjacent vertebral fractures at the transition zones (C7/T1, T12/L1), the methodology in paragraph 4.30 in the Guidelines is to be adopted. For fractures of C7 and T1, use the WPI ratings for the cervical spine (AMA5 Chapter 15, Table 15-5, p 392). For fractures of T12 and L1, use the WPI rating for the thoracic spine (AMA5 Chapter 15, Table 15-4, p 389).”
That paragraph instructs a Medical Assessor how to assess a worker’s impairment with respect to three situations, being:
(a) where an injury has resulted in impairment of a worker in a single spinal region;
(b) where an injury has resulted in a working having impairment in different spinal regions (that is, to state the obvious, impairment in more than one spinal region), and
(c) where there has been a vertebral fracture at a transition zone between different spinal regions, that is at C7/T1 and T12/L1.
This case involved both the second and third of those situations.
As a consequence of the appellant suffering a fracture at the transition zone of C7/T1 the impairment relating to that fracture at that particular level had to be assessed, in accordance with paragraph 4.32, as part of the impairment the appellant suffered with respect to his cervical spine.
The appellant’s injury of a fracture at that level necessitated the appellant having a fusion of his spine over six levels from C4-T4. His injury consequently impaired his thoracic spine beyond the transition zone, that is from T1-T4. As a consequence, because he had impairments in different spinal regions, paragraph 4.32 required his impairment from each spinal region to be assessed and the impairments from each to be combined in accordance with the Combined Value Chart at pages 604-606 of AMA 5.
The Medical Assessor did not do that and hence he based his assessment of the appellant’s impairment on incorrect criteria and, also as a consequence of that, the MAC contains a demonstrable error.
The authority on which the respondent relied is not on point. That case involved a fusion at T12-L1, which is at one level only of the worker’s spine in that case, and which was a transition level. The Appeal Panel held in that case that, consistent with paragraph 4.32, the Medical Assessor assessed the worker’s impairment as DRE Thoracic Category IV. The worker’s injury in that case did not result in the worker having impairment in more than one spinal region. This case involved an injury at the transition level at C7/T1 that required a fusion over six levels from C4 to T4 and hence impaired the appellant in more than one spinal region.
The Appeal Panel observes that the first sentence of section 15.6 of AMA 5, which relates to the cervical spine, stipulates that “for cervical problems localised to the cervical or cervicothoracic region use Table 15.5”. Without more, that instruction arguably could provide some support for the proposition that an injury that impairs both the cervical and thoracic regions of the spine are to be assessed based upon the criteria for rating impairment of cervical disorders, that is Table 15.5. However, as both parties have indicated the instructions contained within the Guidelines prevail over those within AMA 5.[2] In the Appeal Panel’s view paragraph 4.32 of the Guidelines clearly instructs that where a worker has impairments from an injury that affect more than one spinal region, then those impairments must be assessed and combined in accordance with the Combined Value Chart.
[2] Paragraph 1.1 and introductory paragraph of chapter 4 of the Guidelines.
The Appeal Panel also accepts that appellant’s submissions with respect to how his impairment of his thoracic and cervical spines ought to have been calculated. Consistent with paragraph 4.37 of the Guidelines, because the appellant had a spinal fusion of the cervical spine his impairment relating to his cervical spine is to be considered under DRE Cervical Category IV. Because he had fusion at five levels of his cervical spine, being C4-C5, C5-C6, C6-C7 and C7-T1 his rating for the impairment of his cervical spine is, also in accordance with paragraph 4.37 and Table 4.2, to be rated as 28% WPI. To that is to be added 2% WPI for the affect his cervical impairment has on his activities of daily living, meaning that his overall impairment relating to his cervical spine is 30% WPI.
As a consequence of the appellant having a fusion of his thoracic spine from T1-T4, the impairment of his thoracic spine is, in accordance with paragraph 4.37, to be rated as DRE Thoracic Spine Category IV which attracts a base rating of 20% WPI. Also, in accordance with Table 4.2 to that must be added 2% WPI because he had fusion surgery at three levels of this thoracic spine. That produces a result of 22% WPI. When that is combined with the 30% WPI for his cervical spine and 2% WPI for scarring, the result of 46% WPI is achieved.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 December 2022 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: | W6050/22 |
Applicant: | Chandra Bahadur Pun |
Respondent: | FC Building 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 Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in 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) |
| Cervical spine | 25/3/2019 | Chapter 4 | Chapter 15 | 30% | - | 30% |
| Thoracic spine | Chapter 4 | Chapter 15 | 22% | - | 22% | |
| Left upper extremity (wrist) | Chapter 2 | Chapter 16 | 0 | - | 0 | |
| Right lower extremity (foot) | Chapter 3 | Chapter 17 | 0 | - | 0 | |
| Scarring | Table 14.1 | 2% | - | 2% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 46% | |||||
0