Qantas Airways Ltd v Tham
[2024] NSWPICMP 418
•28 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qantas Airways Ltd v Tham [2024] NSWPICMP 418 |
| APPELLANT: | Qantas Airways Ltd |
| RESPONDENT: | Siak Fay Tham |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 28 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; right lower extremity and scarring assessments; appeal by the employer alleged Medical Assessor erred in making a one-tenth deduction under section 323 and sought a greater deduction; Held – the pre-existing condition contributed to the overall level of permanent impairment assessed and a deduction of one-fifth should be made; a deduction of one-tenth was at odds with the available evidence; the scarring assessment of 1% WPI upheld; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 March 2024 Qantas Airways Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by David Crocker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 February 2024.
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).
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 did not seek that the worker be subject to a re-examination by a Medical Assessor who was also a member of the Appeal Panel. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the appeal Panel found error, there was sufficient information before the Appeal Panel for it 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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 31.7.19
· Body parts/systems referred: Right Lower Extremity
Scarring (TEMSKI)”
The Medical Assessor issued a MAC as follows:
Body Part or system
Dates 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)
Right
Lower Extremity
31.7.19
Chapter 3,
pp 13-23
Chapter 17, 17.2j,
Tables 17-33 & 17-34,
pp 545-549;
20%
1/10th
18%
Scarring
(TEMSKI)
31.7.19
Chapter 14,
Table 14.1 (TEMSKI),
pp 73-76
Chapter 8,
Tables 8-2 & 8-7,
pp 178-189
1%
¾
1%
Total % WPI (the Combined Table values of all sub-totals)
19%
The employer appealed.
There is no complaint on appeal by either party about the overall level of permanent impairment assessed of the right lower extremity at 20% whole person impairment (WPI). The complaint on appeal concerns the extent of the deductible proportion made under s 323 in circumstances where the Medical Assessor made a one-tenth deduction in circumstances where given the available evidence about the prior condition the Medical Assessor’s deduction of one-tenth was inadequately reasoned. The appellant says it should exceed one-tenth.
There is complaint on appeal about the 1% WPI assessed for scarring in circumstances where the appellant submits that scarring should have been assessed at 0% WPI.
In summary, the appellant submitted on appeal that the Medical Assessor made assessments on the basis of incorrect criteria and/or demonstrable errors and the MAC should be revoked.
In summary, the respondent worker Siak Fay Tham (the respondent) submitted on appeal that the Medical Assessor did not make assessments on the basis of incorrect criteria and/or demonstrable errors and the MAC should be confirmed.
The Medical Assessor took a history of injury as follows including a history of a prior condition in the right hip which history is highlighted in bold (emphasis added):
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Tham stated that on 31.7.19 he had just utilised a travelator at the airport in Bali when he subsequently stepped into a puddle of water causing him to ‘do the splits’ and fall taking his weight substantially on his right knee. Pain was apparent to the regions of the outer aspect of the right hip and right knee.
He proceeded home undertaking work duties in the galley in the aeroplane with some periods of rest while travelling in the course of his usual work duties back to Sydney International Airport.
Pain continued to the region of the right hip with some associated discomfort to the right groin. He reported that pain at the right knee fully settled in the short term.
Medical review took place with his usual medical practitioner, Dr Neil Bodsworth of Darlinghurst.
Mr Tham endeavoured to continue to work. He attended his chiropractor. Some medication was taken, however, he had reluctance taking oral analgesic agents.
In relation to the region of the right hip, Mr Tham reported that in April 2019 when utilising a leg press exercise machine at the gym, he developed pain to the outer aspect of the region. This was initially mild but it had persisted. He had nil lost time from work.
Medical review had taken place with Dr Bodsworth. He had also attended his Chiropractor.
MRI examination was attended on 29.5.19 with the reporting Radiologist indicating changes that were consistent with ‘marked right hip OA’ and other features consistent with an extensive labral basal tear. Mr Tham indicated that complaints referable to the region had settled with conservative treatment such that he was only experiencing low grade discomfort to the region at the time of the subject incident of 31.7.19.
Subsequent to the workplace occurrence, his General Practitioner had referred Mr Tham to Dr Horng Lii Oh, Consultant Orthopaedic Surgeon of St Vincent’s Clinic, Darlinghurst. This was at a time when he was continuing to take some oral medication and attending the chiropractor. Pain was persisting which included that with walking. There was limitation with active range of motion.
Mr Tham stated that he had some reluctance to proceed to surgical treatment when raised by the orthopaedic specialist. It would appear that there was also some delay with acceptance of liability by the insurer.
Mr Tham, however, proceeded to right total hip replacement performed at St Vincent’s Hospital by Dr Oh on 8.2.22. This was followed by a period of rehabilitation at the Wolper Hospital for approximately 10 days.
Mr Tham indicated that the surgical intervention assisted with pain management. There remains some limitation with active range of motion.
· Present treatment:
Mr Tham avoids taking oral analgesia or non-steroidal anti-inflammatory agents.
He has not recently required review with his General Practitioner in relation to the injury. He has not recently attended the Orthopaedic Surgeon.
He occasionally attends the Chiropractor in relation to mild spinal complaints. Exercises are reportedly reviewed that include those related to the right hip.
Mr Tham has not reportedly attended a Psychologist or Psychiatrist.
· Present symptoms:
Mr Tham is experiencing intermittent pain from a mild to moderate degree to the region of the outer aspect of the right hip following attempted physical activity. This arises on approximately 1-2 occasions every few weeks.
He reports some continued limitation with full active range of motion at the right hip. He also describes some feeling of ‘stiffness’.
He reports some difficulty and discomfort if endeavouring to weightbear, for example if attending a yoga class.
He denies an ongoing gait disturbance.
There is nil bowel or bladder disturbance.
He does not report adverse psychological features related to the injury.
· Details of any previous or subsequent accidents, injuries or condition:
Reference has been made above to complaints referable to the region of the right hip arising when attending a gymnasium in April 2019.
· General health:
Mr Tham reported that he generally keeps well.
He had reportedly sustained a facial laceration and trauma to the nasal bones in the course of his employment when in London. Surgical management was required.
He had undergone an appendicectomy in childhood.
· Work history including previous work history if relevant:
It has been indicated that Mr Tham had been employed as a Long Haul Flight Attendant with Qantas Airways Ltd. He had commenced in 1992. Voluntary redundancy was taken in March 2020.
There has been nil subsequent paid employment.
He reported that he undertakes voluntary work for approximately 2.5 hours every two weeks at the Art Gallery of NSW directing persons to respective areas, etc.
Concerning previous employment, he reported that he had worked as an accountant in New Zealand and Melbourne for approximately six years.
He had earlier worked in hospitality.
With respect to educational related background, Mr Tham had completed studies relating to accountancy and had obtained a Bachelor degree in commerce.
He had attended secondary school in Singapore acquiring his A levels.
I have noted that he holds a standard driver’s licence.
· Social activities/ADL:
Mr Tham is single.
He reported that he has enjoyed endeavouring to remain fit and has previously undertaken various activities inclusive of gym attendance. He is endeavouring to continue at the gym on approximately three occasions per week. He has also carried out yoga and has attempted returning to tennis.
Mr Tham is a non-smoker. He takes alcohol with friends approximately once per week.
With respect to activities of daily living, Mr Tham did not report significant difficulty with sleeping/lying down.
Prolonged sitting can cause some increased discomfort.
He is endeavouring to undertake regular walking. He reports that he no longer has a limping gait.
There is little requirement for stair use. He does, however, endeavour to utilise stairs in the apartment building where he lives for exercise purposes.
Mr Tham is able to undertake household chores.
With respect to aspects of personal care, he reported some difficulty/discomfort when negotiating shoes and socks.”
The Medical Assessor conducted a physical examination and recorded his findings as follows: (emphasis added in respect of the findings on examination in regards to of the scarring)
“Mr Tham was a cooperative man in nil apparent physical distress while at rest.
He was informed that I would require his full cooperation but that I would cease or modify any manoeuvres that were potentially distressing for him.
His weight was 72kg, lightly clothed, with a height of 178cm in bare feet. According to Nutrition Australia, the healthy weight range for an Australian of this height is 59-80kg.
Mr Tham exhibited a normal symmetric gait when observed walking within the confines of my office.
He was able to undertake a squatting manoeuvre without apparent difficulty.
General inspection of the lower limbs revealed normal bony alignment.
Active straight leg raising was to approximately 60° right side and 70° left side.
There was nil real or apparent leg length discrepancy.
Active range of motion was assessed at both hips with a goniometer on multiple occasions with maximal findings noted as follows:
| Hip Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 105° | 115° |
| Extension | Nil contracture | Nil contracture |
| Adduction | 20° | 30° |
| Abduction | 35° | 50° |
| Internal Rotation | 20° | 40° |
| External Rotation | 25° | 55° |
There were nil deformities or contractures evident with bilateral lower extremity examination.
A healed prominent longitudinal surgical scar of approximately 13.5cm was noted to overlie the anterolateral aspect of the right hip. With respect to shape, texture and colour, there was moderate widening of the scar and a generally hypertrophic appearance. There was prominent increased pigmentation. Suture marks were not overtly apparent.
With respect to location, see above. It is considered that the scar is located at a site that would generally not be visible when wearing usual clothing inclusive of boxer style swimwear.
With respect to contour, there was nil loss of contour evident upon inspection.
Mr Tham reported some sensitivity pertaining to the scar. I do not, however, consider that there are negative impacts arising upon activities of daily living pertaining to it.
There is nil requirement for specific treatment. Mr Tham, however, regularly utilises a topical oil in view to endeavouring to improve the scar’s appearance.
There was nil evidence of underlying adherence.”
In regard to special investigations, the Medical Assessor noted as follows:
“It has been indicated that Mr Tham did not have with him any radiological investigations at the time of the assessment. I have indicated that I have reviewed the radiological reports contained in the referral documentation.”
The Medical Assessor summarised the injury and diagnosis and considered the worker was consistent in his presentation as follows:
“summary of injuries and diagnoses:
It is considered that Mr Tham suffered an aggravation of osteoarthritis and labral tear at the right hip as a consequence of the subject incident. He reported that he had been experiencing a low level of discomfort to the region at that time resulting from an earlier non-work related gym-based activity.
· consistency of presentation:
Mr Tham presented with a straightforward and undemonstrative manner. There were nil overt features of embellishment upon the history or augmentation on physical examination. As such, consistency was apparent.”
The Medical Assessor explained his permanent impairment assessment as follows:
“It is evident that a determination of whole person impairment pertaining to the right lower extremity requires consideration of right total hip replacement (arthroplasty) having been performed.
Table 17-34 has been completed (Chapter 17, 17.2j pg 548, AMA 5). On this basis, 83 points are determined in relation to the reported complaints and clinical findings. When referencing Table 17-33 (pg 546), it is evident that this point score equates with a fair surgical result, ie 20% WPI (50% lower extremity impairment).
In relation to possible deductions, it is evident that marked osteoarthritic changes had been noted upon MRI examination shortly prior to the time of the subject incident. A labral tear had also been reported. Mr Tham also reports some residual low grade discomfort at the joint immediately prior to the workplace incident. Taking these factors into account, I consider that these are contributary to the impairment and need to be taken into account by way of a deduction of one-tenth. When this is subtracted from 20%, an 18% WPI is accrued.
In relation to scarring, various components as referenced in the TEMSKI table have been taken into account. On this basis, it is considered that a 1% whole person impairment is applicable.
When the 18% and 1% impairments are combined, a final combined whole person impairment of 19% is determined.”
The Medical Assessor made brief comments on the other medical opinion that was before him as follows:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.
I have had the opportunity of reviewing the medical reports (2.7.20, 8.8.23 x 2) prepared by Dr James Bodel, Consultant Orthopaedic Surgeon of Sydney. In the supplementary medical report of 8.8.23, Dr Bodel also alludes to a fair result having been achieved as a consequence of the surgical intervention, hence 20% WPI. He had made nil deductions. In this regard, I consider that Dr Bodel appears to have taken into account injury inclusive of consideration of nature and conditions of employment. The doctor has outlined a 1% whole person impairment with respect to scarring. As such, a final combined whole person impairment of 21% is documented.
I have also reviewed multiple medical reports (14.2.20, 17.8.21, 7.9.21 and 24.10.23) prepared by Dr Stephen Rimmer, Consultant Orthopaedic Surgeon of Sydney. It is evident that the doctor had made a diagnosis of severe constitutional degenerative change at the right hip with aggravation as a consequence of gym activity in April 2019.
He has outlined a 100% deduction by way of any impairment determination pertaining to the region.
I have also reviewed further multiple documentation prepared by Mr Tham’s various health professionals inclusive of radiological reports.
I have also reviewed relevant administrative and related documentation contained in the referral material.”
The Medical Assessor addressed the deduction under s 323 as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a.In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Osteoarthritis and labral tear at the right hip. There had been a likely aggravation arising from a gym activity in April 2019. Mr Tham was only reporting low grade discomfort to the region immediately prior to the subject incident
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:
(i)It is considered that the pre-existing conditions relating to the right hip need to be taken into account by way of contributory impairment when determining a deduction.
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.”
A deduction under s 323 can only be made if the pre-existing condition has contributed to the overall level of permanent impairment assessed. If the extent of the deduction is too difficult or costly to determine, a deduction of one-tenth should be made unless a deduction of
one-tenth is at odds with the available evidence.Here there is available evidence shortly prior to injury on 31 July 2019 that the worker had suffered an injury to his right hip at the gym. He suffered that injury in April 2019 and an MRI scan undertaken only two months prior to injury on 29 May 2019 which reported marked osteoarthritic change in the right hip and the presence of a labral tear. The worker received treatment after the injury in April 2019 and he was referred for sensitive special investigation in the form of an MRI scan which confirmed the presence of marked osteoarthritic change and the labral tear. He was still experiencing low grade symptoms in the right hip at the time of the work injury. After the injury he came to a hip replacement upon which the assessment for permanent impairment is based. However, the contribution of the prior condition of the hip (markedly osteoarthritic with the presence of a labral tear all confirmed radiologically by MRI two months prior to injury) to the need for surgery upon which the assessment of permanent impairment is based must be taken into account because the prior condition has contributed to the overall level of permanent impairment assessed. It must also be taken into account that the work injury on 31 July 2019 was a significant one from which symptoms persisted to the extent that surgery resulted. Whilst the Medical Assessor has taken into account the prior condition of the hip by the making of a one-tenth deduction, the Appeal Panel considers the one-tenth deduction is at odds with the available evidence as set out above and that a deduction of one-fifth is appropriate to take into account the contribution of the prior condition of the hip to the overall level of permanent impairment assessed.
This means that the 20% WPI assessed as the overall level of permanent impairment for the right hip has a deduction of one-fifth applied (4%) which leaves 16% WPI for the right lower extremity.
In respect of the scarring assessment, the Medical Assessor has very clearly set out his thorough findings on physical examination of the scarring. It is a matter for the clinical judgment of the Medical Assessor as to the best fit for the scarring assessment.
The Guidelines provide as follows:
“14.6A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.
14.7The table for the evaluation of minor skin impairment (TEMSKI) (see Table 14.1) is an extension of Table
8-2 in AMA5. The TEMSKI divides class 1 of permanent impairment (0–9%) due to skin disorders into five categories of impairment. The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0–4% in the class 1 category, that has been caused by minor scarring following surgery. Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in the assessment of the skin body system.
14.8The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.
14.9Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value.
15Table 14.1 relevantly provides as follows:
Criteria
0% WPI
1% WPI
Description of the scar(s) and/or skin condition(s)
(shape, texture, colour)
Claimant is not conscious or is barely conscious of the scar(s) or skin condition.
Good colour match with surrounding skin, and the scar(s) or skin condition is barely distinguishable.
Claimant is unable to easily locate the scar(s) or skin condition.
Claimant is conscious of the scar(s) or skin condition.
Some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes.
No trophic changes.
Claimant is able to locate the scar(s) or skin condition.
Any staple or suture marks are barely visible.
Minimal trophic changes.
Any staple or suture marks are visible.
Location
Anatomic location of the scar(s) or skin condition not clearly visible with usual clothing/hairstyle.
Anatomic location of the scar(s) or skin condition is not usually visible with usual clothing/ hairstyle
Contour
No contour defect.
Minor contour defect
ADL/treatment
No effect on any ADL.
Negligible effect on any ADL
.
No treatment, or intermittent treatment only, required.
No treatment, or intermittent treatment only, required.
Adherence to underlying structures
No adherence.
No adherence.
The Guidelines direct the Medical Assessor as follows:
“This table uses the principle of ‘best fit’. You should assess the impairment to the whole skin system against each criteria and then determine which impairment category best fits (or describes) the impairment. Refer to 14.8 regarding application of this table.”
The Medical Assessor has assessed 1% WPI for scarring using his clinical judgment on the day of examination When the MAC is read as a whole his examination findings clearly are a best fit with a rating of 1% WPI for scarring using the correct criteria in Table 14.1 and the Appeal Panel can discern no error.
This means that 16% WPI for the right lower extremity is combined with 1% WPI for scarring giving a total WPI of 17% as a result of injury on 31 July 2019.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 February 2024 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
Matter number: | W9618/23 |
Applicant: | Siak Fay Tham |
Respondent: | Qantas Airways Limited |
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 David Crocker 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 NSW workers compensation guidelines | 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.right lower extremity | 31 July 2019 | Chapter 3, pp 13-23 | Chapter 17, 17.2j, Tables 17-33 & 17-34, pp 545-549; | 20% | 1/5th | 16 |
| 2.scarring | 31 July 2019 | Chapter 14, Table 14.1 (TEMSKI), pp 73-76 | Chapter 8, Tables 8-2 & 8-7, pp 178-189 | 1 | NIL | 1 |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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